Endangered and Threatened Wildlife and Plants; NewMark Merrill Companies Incidental Take Permit Application and Proposed Low-Effect Habitat Conservation Plan and Associated Documents; San Bernardino County, CA, 43062-43064 [2014-17407]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 142 (Thursday, July 24, 2014)]
[Notices]
[Pages 43062-43064]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17407]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2014-N151; FXES11120000-145-FF08ECAR00]


Endangered and Threatened Wildlife and Plants; NewMark Merrill 
Companies Incidental Take Permit Application and Proposed Low-Effect 
Habitat Conservation Plan and Associated Documents; San Bernardino 
County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from NewMark Merrill Companies (applicant) for 
a 5-year incidental take permit (permit). The application includes the 
applicant's proposed habitat conservation plan (HCP), as required by 
the Endangered Species Act of 1973, as amended (Act). If approved, the 
permit would authorize incidental take of the endangered Delhi Sands 
flower-loving fly in the course of routine construction activities 
associated with the construction of a commercial retail development 
bounded by West San Bernardino Avenue, Riverside Avenue, and Willow 
Avenue in the City of Rialto, California. We invite public comment on 
the permit application and proposed HCP, and on our preliminary 
determination that the HCP qualifies as ``low-effect'' for a 
categorical exclusion under the National Environmental Policy Act. To 
make this determination, we used our environmental action statement and 
low-effect screening form, which are also available for review.

DATES: To ensure consideration, please send your written comments by 
August 25, 2014.

ADDRESSES: Obtaining Documents: You may request a copy of the 
incidental take permit application, proposed HCP, and associated 
documents by email, telephone, fax, or U.S. mail (see below). These 
documents are also available for public inspection by appointment 
during normal business hours at the office below. Please send your 
requests or comments by any one of the following methods, and specify 
``Walmart Commercial Retail HCP'' in your request or comment.
    Submitting Comments: You may submit comments or requests for more 
information by any of the following methods:
    Email: ken_corey@fws.gov. Include ``Walmart Commercial Retail 
HCP'' in the subject line of your message.
    Telephone: Kennon A. Corey, Palm Springs Fish and Wildlife Office, 
760-322-2070.
    Fax: Kennon A. Corey, Palm Springs Fish and Wildlife Office, 760-
322-4648, Attn.: Walmart Commercial Retail HCP.
    U.S. Mail: Kennon A. Corey, Palm Springs Fish and Wildlife Office, 
Attn.: Walmart Commercial Retail HCP, U.S. Fish and Wildlife Service, 
777 East Tahquitz Canyon Way, Suite 208, Palm Springs, CA 92262.
    In-Person Viewing or Pickup of Documents, or Delivery of Comments: 
Call 760-322-2070 to make an appointment during regular business hours 
at the above address.

FOR FURTHER INFORMATION CONTACT: Kennon A. Corey, Assistant Field 
Supervisor, Palm Springs Fish and Wildlife Office; telephone 760-332-
2070. If you use a telecommunications device for the deaf (TDD), please 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Introduction

    The applicant, NewMark Merrill Companies, requests an incidental 
take permit under section 10(a)(1)(B) of the Act. If we approve the 
permit, the applicant anticipates taking Delhi Sands

[[Page 43063]]

flower-loving fly (Rhaphiomidas terminatus abdominalis) as a result of 
minor disturbances to habitat the subspecies uses for breeding, 
feeding, and sheltering. Take of Delhi Sands flower-loving fly would be 
incidental to the applicant's routine activities associated with the 
construction of a commercial retail facility in the City of Rialto, San 
Bernardino County, California. We published a final rule to list the 
Delhi Sands flower-loving fly as endangered on September 23, 1993 (58 
FR 49881). A 5-year review of the species was published in March 2008.

Background

    Section 9 of the Act (16 U.S.C. 1531 et seq.) and our implementing 
Federal regulations in the Code of Federal Regulations (CFR) at 50 CFR 
17 prohibit the ``take'' of wildlife species listed as endangered or 
threatened. Take of listed wildlife is defined under the Act as ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect listed species, or to attempt to engage in any 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). Under limited circumstances, we 
may issue permits to authorize incidental take of listed wildlife 
species, which the Act defines as take that is incidental to, and not 
the purpose of, the carrying out of otherwise lawful activities.
    Regulations governing incidental take permits for threatened and 
endangered species are at 50 CFR 17.32 and 17.22, respectively. In 
addition to meeting other criteria, activities covered by an incidental 
take permit must not jeopardize the continued existence in the wild of 
federally listed wildlife or plants.

Applicant's Proposal

    The applicant requests a 5-year permit under section 10(a)(1)(B) of 
the Act. If we approve the permit, the applicant anticipates taking 
Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis) as 
a result of the building of a commercial retail facility which would 
permanently impact 2.4 acres of low-quality habitat for the subspecies. 
The take would be incidental to the applicant's routine construction 
activities associated with the construction of the commercial retail 
facility, south of West San Bernardino Avenue, east of South Willow 
Avenue, and west of South Riverside Avenue, in the City of Rialto, San 
Bernardino County, California.
    A portion of the commercial retail facility project is on Delhi 
Sands soils. This soil type, which consists of fine wind-blown sand 
deposits, along with sparse native shrubs and annual plants, defines 
the Delhi Sands flower-loving fly habitat. A single male Delhi Sands 
flower-loving fly was detected on the site during pre-project surveys. 
Less than 5 percent of the species' historic range is left, found in a 
few disjunct locations in southwestern San Bernardino and northwestern 
Riverside Counties. Development and exclusion by invasive plant species 
continue to be threats to this species. Conservation banks, like the 
Colton Dunes Conservation Bank, are this species' best chance at 
recovery.
    To mitigate for take of the Delhi Sands flower-loving fly at the 
proposed project site, the applicant proposes to mitigate for the 
permanent take of 2.4 acres of low quality habitat by preserving 2 
acres of habitat occupied by the subspecies. The applicant's proposed 
HCP also contains the following proposed measures to minimize the 
impact to the habitat adjacent to the street improvements:
     Fence work areas to exclude personnel from areas where 
habitat may be impacted.
     Require environmental awareness training for all workers.
     Confine construction activities to the project site and 
existing developed areas.
     Require that all construction activities be completed 
during the time period October through June only (i.e., outside of the 
Delhi Sands flower-loving fly flight season, with a 2-week buffer on 
either side).

Proposed Habitat Conservation Plan Alternatives

    In the proposed HCP, the applicant considers alternatives to the 
taking of Delhi Sands flower-loving fly under the proposed action. Our 
proposed action under the National Environmental Policy Act (NEPA) of 
1969 is to issue an incidental take permit to the applicant, who would 
implement the HCP. If we approve the permit, take of Delhi Sands 
flower-loving fly would be authorized for the applicant's routine 
construction activities associated with the development. The 
applicant's proposed HCP identifies a no-action alternative that would 
not result in incidental take of Delhi Sands flower-loving fly. 
However, the no-action alternative would not contribute to the 
applicant's plans for expanding Walmart's retail opportunities in the 
Rialto area. In addition, we consider that conserving lands in the 
Colton Dunes Conservation Bank is of higher conservation value than 
simply avoiding impacts at the proposed project site. The habitat at 
the proposed project site is degraded and fragmented from other habitat 
by roads. By contrast, the Conservation Bank is a 150-acre area of 
high-quality habitat occupied by the Delhi Sands flower-loving fly 
which is actively managed for the subspecies and is contiguous to other 
conservation lands.

Our Preliminary Determination

    We invite comments on our preliminary determination that our 
proposed action, based on the applicant's proposed activities, 
including the proposed minimization and mitigation measures, would have 
a minor or negligible effect on Delhi Sands flower-loving fly, and that 
the HCP qualifies as ``low effect'' as defined by our Habitat 
Conservation Planning Handbook (November 1996).
    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.
    As more fully explained in our environmental action statement and 
associated low-effect screening form, the applicant's proposed HCP 
qualifies as a low-effect HCP for the following reasons:
     The project would have minor or negligible effects on the 
Delhi Sands flower-loving fly because the low-quality impacted area 
would be small in size, would be mitigated by the purchase of 
conservation credits in the Colton Dunes Conservation Bank, and would 
not affect the continued viability of the Delhi Sands flower-loving fly 
in the Colton Recovery Unit.
     The project would have minor or negligible effects on 
other environmental resources or values because it is a highly 
disturbed site with no other known sensitive species or resources.
     Impacts of the HCP would not result, over time, in 
cumulative effects to other significant environmental values or 
resources, because it is a relatively small infill project and

[[Page 43064]]

mitigation measures were developed and will be implemented as part of 
project approval by the City of Rialto to address the identified 
environmental effects. The mitigation measures include preservation of 
2 acres of occupied Delhi Sands flower-loving fly habitat within the 
Colton Dunes Conservation Bank to offset impacts to the subspecies.
    Therefore, our proposed issuance of the requested incidental take 
permit qualifies as a categorical exclusion under NEPA, as provided by 
the Department of the Interior Manual (516 DM 2 Appendix 1, 516 DM 6 
Appendix 1, and 516 DM 8.5(C)(2)). Based on our review of public 
comments that we receive in response to this notice, we may revise this 
preliminary determination.

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 Act. We will also evaluate 
whether issuance of a section 10(a)(1)(B) incidental take permit would 
comply with section 7 of the Act by conducting an internal 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 Delhi Sands flower-loving fly.

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.

Authority

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

G. Mendel Stewart,
Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
California.
[FR Doc. 2014-17407 Filed 7-23-14; 8:45 am]
BILLING CODE 4510-55-P