82 FR 56990 - Endangered and Threatened Wildlife and Plants; Incidental Take Permit Application; Proposed Low-Effect Habitat Conservation Plan for the Coastal California Gnatcatcher and Associated Documents; Brea, California

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 82, Issue 230 (December 1, 2017)

We, the U.S. Fish and Wildlife Service, have received an application from Orange County Waste & Recycling for a 5-year incidental take permit for the threatened coastal California gnatcatcher pursuant to the Endangered Species Act. We are requesting comments on the permit application and on our preliminary determination that the applicant's accompanying proposed habitat conservation plan qualifies as low effect, eligible for a categorical exclusion under the National Environmental Policy Act. The basis for this determination is discussed in our environmental action statement and associated low- effect screening form, which are also available for public review.

[Federal Register Volume 82, Number 230 (Friday, December 1, 2017)]
[Notices]
[Pages 56990-56992]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-25889]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2017-N107; FXES11140800000-178-FF08ECAR00]


Endangered and Threatened Wildlife and Plants; Incidental Take 
Permit Application; Proposed Low-Effect Habitat Conservation Plan for 
the Coastal California Gnatcatcher and Associated Documents; Brea, 
California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Orange County Waste & Recycling for a 5-year 
incidental take permit for the threatened coastal California 
gnatcatcher pursuant to the Endangered Species Act. We are requesting 
comments on the permit application and on our preliminary determination 
that the applicant's accompanying proposed habitat conservation plan 
qualifies as low effect, eligible for a categorical exclusion under the 
National Environmental Policy Act. The basis for this determination is 
discussed in our environmental action statement and associated low-
effect screening form, which are also available for public review.

DATES: Written comments should be received on or before January 2, 
2018.

ADDRESSES: Submitting Comments: You may submit comments by one of the 
following methods:
     U.S. Mail: Field Supervisor, Fish and Wildlife Service, 
Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250, 
Carlsbad, CA 92008.
     Fax: Field Supervisor, 760-431-9624.
     Email: [email protected]; please include ``Olinda 
Alpha Landfill HCP'' in the subject line.
    Obtaining Documents: You may obtain copies of the proposed HCP and 
EAS on the Carlsbad Fish and Wildlife's HCP Web site at https://www.fws.gov/carlsbad/HCPs/HCP_Docs.html. To request copies of the 
application, proposed HCP, and EAS, contact the Service immediately, by 
telephone at 760-431-9440 or by letter to the Carlsbad Fish and 
Wildlife Office (see ADDRESSES). Copies of the proposed HCP and EAS 
also are available for public inspection during regular business hours 
at the Carlsbad Fish and Wildlife Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Ms. Karen Goebel, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES); 
telephone: 760-431-9440. If you use a telecommunications device for the 
deaf (TDD), please call the Federal Relay Service (FRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an application from Orange County Waste & 
Recycling (applicant) for a 5-year incidental take permit for one 
covered species pursuant to section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.; ESA). The 
application addresses the potential ``take'' of the threatened coastal 
California gnatcatcher (Polioptila californica californica; 
gnatcatcher) in the course of activities associated with the 
construction, operation, and maintenance of the Olinda Alpha Landfill 
projects, in the City of Brea, Orange County, California. A 
conservation program to avoid, minimize, and mitigate for project 
activities would be implemented as described in the applicant's 
proposed habitat conservation plan (HCP).
    We are requesting comments on the permit application and on our 
preliminary determination that the proposed HCP qualifies as a low-
effect HCP, eligible for a categorical exclusion under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.; 
NEPA). The basis for this determination is discussed in our 
environmental action statement (EAS) and associated low-effect 
screening form, which are also available for public review.

Background

    Section 9 of the ESA and its implementing Federal regulations 
prohibit the take of animal species listed as endangered or threatened. 
``Take'' is defined under the ESA as to ``harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect listed animal species, or 
to attempt to engage in such conduct'' (16 U.S.C. 1538). ``Harm'' 
includes significant habitat modification or degradation that actually 
kills or injures listed wildlife by significantly impairing essential 
behavioral patterns such as breeding, feeding, or sheltering (50 CFR 
17.3). However, under section 10(a) of the ESA, the Service may issue 
permits to authorize incidental take of listed species. ``Incidental 
taking'' is defined by the ESA implementing regulations as taking that 
is incidental to, and not the purpose of, carrying out an otherwise 
lawful activity (50 CFR 17.3). Regulations governing incidental take 
permits for endangered and threatened species, respectively, are found 
in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Applicant's Proposed Project

    The applicant requests a 5-year permit under section 10(a)(1)(B) of 
the ESA. If we approve the permit, the applicant anticipates taking 
gnatcatcher as a result of permanent impacts to 5.78 acres (ac) of 
coastal sage scrub habitat that the species uses for breeding, feeding, 
and sheltering, as well as 2.85 ac of nonnative grassland habitat that 
may support gnatcatcher foraging and/or dispersal. The take would be 
incidental to the applicant's activities associated with the 
construction of the Olinda Alpha Landfill projects in the City of Brea, 
California, and includes restoration and in-perpetuity

[[Page 56991]]

preservation and management of 11.56 ac of gnatcatcher habitat.
    The Olinda Alpha Landfill projects propose to construct a desilting 
basin, perform a partial cap closure, install screening trees for the 
Brea Power Plant, and construct a winch concrete pad on 12.56 ac 
located on the 565-ac Olinda Alpha Landfill property in the City of 
Brea. The project will permanently impact 5.78 ac of coastal California 
gnatcatcher-occupied coastal sage scrub habitat as a result of clearing 
and grading activities.
    To minimize take of coastal California gnatcatcher by the Olinda 
Alpha Landfill projects and to offset impacts to its habitat, the 
applicant proposes to mitigate for permanent impacts to 5.78 ac of 
occupied gnatcatcher coastal sage scrub habitat through the 
restoration, conservation, and in-perpetuity management of 11.56 ac of 
coastal sage scrub suitable for the gnatcatcher by a Service-approved 
restoration contractor and the Puente Hills Habitat Preservation 
Authority. The applicant's proposed HCP also contains the following 
proposed measures to minimize the effects of construction activities on 
the gnatcatcher:
     Prior to the initiation of work activities on the project 
sites, grading limits will be clearly delineated with flagging and/or 
temporary fencing and silt fencing, as necessary, to help guide work 
activities and avoid impacts to areas beyond the project boundaries.
     Prior to the initiation of work activities on the project 
sites, a Service-approved biologist will conduct a brief training 
session for all project personnel regarding the conservation measures 
and regulations described herein, as well as general information and 
methods that will help avoid and minimize disturbance to the 
gnatcatcher in the vicinity of project activities.
     A Service-approved biologist will monitor grading of the 
site daily (or as determined necessary by the monitoring biologist) and 
provide a letter summarizing compliance with this HCP and the 
construction limits of the proposed projects to the Service within 1 
month of completion of grading.
     Vegetation clearing will take place outside of the bird 
nesting season (February 15 through August 31) to the fullest extent 
practicable. Clearing may only occur during this period once a Service-
approved biologist has conducted at least three surveys of the impact 
areas for nesting birds, with each survey taking place 1 week apart, 
and the last survey conducted within 24 hours prior to clearing. The 
qualified biologist will document compliance with the Migratory Bird 
Treaty Act and other applicable regulations that protect nesting birds. 
If an active bird nest is observed, a 300-foot buffer must be 
established, within which no project activities will occur until the 
nest is no longer active. A reduced buffer may be established by the 
monitoring biologist if it is deemed appropriate and will not result in 
the alteration of nesting behaviors. To fulfill this measure, all 
project activities that are deemed necessary to occur during the bird 
nesting season will be monitored by the qualified biologist, as well as 
any active nest detected in the vicinity of project activities.
     Project sites will be kept as clean as possible to avoid 
attracting predators. All food-related trash will be placed in sealed 
bins or removed from the site regularly.
     Staging areas for each project will be limited to 
developed or previously disturbed areas.

Proposed Action and Alternatives

    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed HCP, which includes measures 
to avoid, minimize, and mitigate impacts to the gnatcatcher. If we 
approve the permit, take of gnatcatcher would be authorized for the 
applicant's activities associated with the construction of the Olinda 
Alpha Landfill projects. In the proposed HCP, the applicant considers 
alternatives to the taking of gnatcatcher under the proposed action. 
Alternative development configurations for each project component were 
considered; however, because of site-specific regulatory requirements 
and the topography of the site, further avoidance of impacts to coastal 
California gnatcatcher habitat could not be achieved. The applicant 
also considered the No Action Alternative. Under the No Action 
Alternative, no incidental take of coastal California gnatcatcher 
resulting from habitat modification would occur, and no long-term 
protection and management would be afforded to the species.

Our Preliminary Determination

    The Service has made a preliminary determination that approval of 
the HCP and issuance of an incidental take permit qualify for 
categorical exclusion under NEPA (42 U.S.C. 4321 et seq.), as provided 
by the Department of the Interior implementing regulations in part 46 
of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, 
and 46.215), and that the HCP qualifies as a low-effect plan as defined 
by the Habitat Conservation Planning Handbook (December 2016).
    We base our determination that a HCP qualifies as a low-effect plan 
on the following three criteria:
    (1) Implementation of the HCP would result in minor or negligible 
effects on federally listed, proposed, and candidate species and their 
habitats;
    (2) Implementation of the HCP would result in minor or negligible 
effects on other environmental values or resources; and
    (3) Impacts of the HCP, considered together with the impacts of 
other past, present, and reasonably foreseeable similarly situated 
projects, would not result, over time, in cumulative effects to 
environmental values or resources that would be considered significant.
    Based upon this preliminary determination, we do not intend to 
prepare further NEPA documentation. We will consider public comments in 
making the final determination on whether to prepare such additional 
documentation.

Next Steps

    We will evaluate the proposed HCP and comments we receive to 
determine whether the permit application meets the requirements and 
issuance criteria under section 10(a) of the ESA (16 U.S.C. 1531 et 
seq.). We will also evaluate whether issuance of a section 10(a)(1)(B) 
incidental take permit would comply with section 7 of the ESA by 
conducting an intra-Service consultation. 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 a permit. If the 
requirements and issuance criteria under section 10(a) are met, we will 
issue the permit to the applicant for incidental take of gnatcatcher.

Public Comments

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

Public Availability of Comments

    Before including your address, phone number, email 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 may 
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.

[[Page 56992]]

Authority

    We provide this notice under section 10 of the ESA (16 U.S.C. 1531 
et seq.) and NEPA regulations (40 CFR 1506.6).

Scott A. Sobiech,
Acting Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
California.
[FR Doc. 2017-25889 Filed 11-30-17; 8:45 am]
BILLING CODE 4333-15-P