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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-ES-2010-N207; 1122-0000-81440-F2]

# AGENCY:

U.S. Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability.

# SUMMARY:

                         We, the U.S. Fish and Wildlife Service (Service), have received an application from Barkwood Development, LLC (applicant) for an incidental take permit under the Endangered Species Act of 1973, as amended (Act). We are considering issuance of an incidental take permit (ITP) that would authorize the applicant's take of the federally endangered Morro shoulderband snail (                        *Helminthoglypta walkeriana*) incidental to a 5.5-acre (239,580-square foot) redevelopment project in the community of Los Osos, San Luis Obispo County, California. We invite comments from the public on the application, which includes the Bahia Vista Estates Habitat Conservation Plan (HCP), and on our preliminary determination that the HCP qualifies as a low-effect plan that is eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended.                    

# DATES:

 To ensure consideration, please send your written comments by October 27, 2010.

# ADDRESSES:

                        You may download a copy of the HCP, draft Environmental Action Statement, Low-Effect Screening Form, and related documents on the Internet at                         *http://www.fws.gov/​ventura/​,*                         or you may request documents by U.S. mail or phone (see below). Please address written comments to Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003. You may alternatively send comments by facsimile to (805) 644-3958.                    

# FOR FURTHER INFORMATION CONTACT:

Julie M. Vanderwier, Fish and Wildlife Biologist, or Jen Lechuga, HCP Coordinator, at the Ventura address above or by telephone at (805) 644-1766.

# SUPPLEMENTARY INFORMATION:

## Background

                    The Morro shoulderband (also known as banded dune) snail was listed by the U.S. Fish and Wildlife Service as endangered on December 15, 1994 (59 FR 64613). Section 9 of the Act (16 U.S.C. 1531*et seq.*) and its implementing regulations prohibit the “take” of fish or wildlife species listed as endangered or threatened.” “Take” is defined under the Act to include the following activities: to harass, harm, pursue, hunt, shoot, wound, kill, trap,                           ( print page 59286)                        capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532). However, under Section 10(a)(1)(B) of the Act, we may issue permits to authorize incidental take of listed species. “Incidental Take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are, respectively, in the Code of Federal Regulations at 50 CFR 17.32 and 17.22. Issuance of an ITP also must not jeopardize the existence of federally listed fish, wildlife, or plant species.                

The Act's take prohibitions do not apply to federally listed plant species on private lands unless such take would be in violation of State law. In addition to meeting other criteria, actions undertaken through implementation of the HCP must not jeopardize the continued existent of federally listed plant or animal species.

The applicant seeks an ITP for direct impacts to 5.5 acres to ruderal, disturbed, and landscaped habitat occupied by Morro shoulderband snail in association with a residential redevelopment project. The project is proposed for a single Residential Single Family-zoned parcel located along Los Osos Valley Road, between Pine and Broderson Avenues in the west-central portion of the unincorporated community of Los Osos, San Luis Obispo County, California. The parcel is legally described as Assessor Parcel Number 074-052-049. The site was originally developed for residential use more than 50 years ago and most of the original residential structures remain on the site. The applicant is requesting a 20-year ITP for take of Morro shoulderband snail that would result from the “Covered Activities” that would include the subdivision of land, demolition and removal of existing structures, grubbing and regrading of the site, installation of site infrastructure, phased construction of up to 26 new homes, and occupation of these homes.

                    The applicant proposes to avoid, minimize, and mitigate take of Morro shoulderband snails associated with the covered activities by fully implementing the plan. The following measures will be implemented to minimize the effects of the taking: (1) A Service-approved biologist who possesses a valid recovery permit for the species will conduct preconstruction and construction monitoring activities throughout project implementation, inclusive of both construction phases, and as needed during all facets of project construction when measurable rain or heavy fog/dew occurs; (2) all live Morro shoulderband snails that are found during the pre-construction surveys or construction monitoring will be relocated to appropriate habitat at a Service-approved parcel by the Service-approved biologist; (3) the Service-approved biologist will conduct a preconstruction training meeting for all personnel who will work onsite during construction; and (4) the applicant will provide a Letter of Credit to ensure adequate funding is available to perform these tasks. The following measure will be implemented to mitigate for unavoidable take: Payment of no less than $50,000 to the “Morro Shoulderband Snail in-Lieu Fee Account (ID #52-138-4139) held by the National Fish and Wildlife Foundation. This funding will implement recovery tasks identified in the                     *Recovery Plan for the Morro Shoulderband Snail and Four Plants from Western San Luis Obispo County, California*                     (USFWS, 1998) by facilitating: (1) Development and preparation of a standardized survey methodology for Morro shoulderband snail populations on conserved lands, (2) implementation of species surveys using the standardized methodology on selected conserved parcels, (3) compilation and analysis of the collected data, and (4) preparation of a final report that presents the study results and Morro shoulderband snail population estimates on those surveyed lands.                

In the proposed HCP, the applicant considers three alternatives to the proposed action. Under the “No Action” alternative, current conditions would be maintained, the HCP for Morro shoulderband snail would not be implemented, and the Service would not issue an ITP. The other alternatives include an alternative location for the project and project redesign.

                    We are requesting comments on our preliminary determination that the applicant's proposal will have a minor or negligible effect on the Morro shoulderband snail and that the plan qualifies as a low-effect HCP as defined by our Habitat Conservation Planning Handbook (November 1996). We base our determinations on three criteria: (1) Implementation of the proposed project as described in the HCP would result in minor or negligible effects on federally listed, proposed, and/or candidate species and their habitats; (2) implementation of the HCP would result in minor negligible effects on other environmental values or resources; and (3) HCP impacts, considered together with those of other past, present, and reasonably foreseeable future projects, would not result in cumulatively significant effects. Based upon our analysis of these criteria, we have made a preliminary determination that the approval of the HCP and issuance of an ITP qualify for categorical exclusions under the NEPA (42 U.S.C. 4321*et seq.*), as provided by the Department of Interior Manual (516 DM 2 Appendix 2 and 516 DM 8). Based upon our review of public comments that we receive in response to this notice, this preliminary determination may be revised.                

## Next Steps

We will evaluate the permit application, including the plan and comments we receive, to determine whether the application meets the requirements of section 10(a) of the Act. We will also evaluate whether issuance of the ITP would comply with Section 7 of the Act by conducting an intra-Service Section 7 consultation for the plan. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to issue the ITP. If the requirements are met, we will issue an ITP to the applicant for the incidental take of Morro shoulderband snail. We will make the final permit decision no sooner than 30 days after the date of this notice.

## Public Comments

                    If you wish to comment on the permit application, HCP, and associated documents, you may submit comments by any one of the methods in                     **ADDRESSES.**

## Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Authority:                         We provide this notice under Section 10 of the Act (U.S.C. 1531                         *et seq.*) and NEPA regulations (40 CFR 1506.6).                    

Dated: September 21, 2010.

Diane K. Noda,

Field Supervisor, Ventura Fish and Wildlife Office, Ventura, California.

[FR Doc. 2010-24099 Filed 9-24-10; 8:45 am]

BILLING CODE 4310-55-P