Receipt of Application for Renewal of Incidental Take Permit for Morro Shoulderband Snail; Kellaway Habitat Conservation Plan; Community of Los Osos, San Luis Obispo County,[...]

Receipt of Application for Renewal of Incidental Take Permit for Morro Shoulderband Snail; Kellaway Habitat Conservation Plan; Community of Los Osos, San Luis Obispo County, California

Dates

We must receive your written comments on or before November 21, 2024.

Supplementary Information

We, the U.S. Fish and Wildlife Service (Service), have received an application from Thomas R. Kellaway and Doris J. Redmond (permittees), for a renewal of incidental take permit TE48316A (ITP) under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ). The requested renewal would extend the ITP by 5 years from the date of reissuance. The existing ITP authorizes take of the federally endangered Morro shoulderband (=banded dune) snail ( Helminthoglypta walkeriana ) incidental to otherwise lawful activities associated with the construction of one residence on each of two separate but contiguous parcels in Los Osos, an unincorporated community of San Luis Obispo County. If renewed, the ITP would not authorize any additional take of the species. We request public comment on the application, which includes the permittee's proposed habitat conservation plan (HCP), and on the Service's preliminary determination that the proposed renewed ITP qualifies as low effect, and may qualify for a categorical exclusion pursuant to the Council on Environmental Quality's National Environmental Policy Act (NEPA) regulations (40 CFR 1501.4), the Department of the Interior's (DOI) NEPA regulations (43 CFR 46), and the DOI's Departmental Manual (516 DM 8.5(C)(2)). We invite comment from the public and local, State, Tribal, and Federal agencies.

Regulatory History

The Service listed the Morro shoulderband snail as endangered on December 15, 1994 (59 FR 64613), and subsequently reclassified the Morro shoulderband snail from endangered to threatened on February 3, 2022 (87 FR 6063). Section 9 of the ESA prohibits "take" of fish and wildlife species listed as endangered (16 U.S.C. 1538), where take is defined to include the following activities: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" (16 U.S.C. 1532). The take prohibitions of section 9 are extended to species listed as threatened at the discretion of the Secretary of the Department of the Interior and were extended to Morro shoulderband snail, with exceptions. The Service published a 4(d) rule, which includes exceptions to incidental take associated with native habitat enhancement and fire reduction activities (February 3, 2022, 87 FR 6063). Under section 10(a)(1)(B) of the ESA, 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 ITPs for endangered and threatened species are in the Code of Federal Regulations at 50 CFR 17.22 and 17.32, respectively. Issuance of an incidental take permit also must not jeopardize the existence of federally listed fish, wildlife, or plant species. All species included in the incidental take permit would receive assurances under our "No Surprises" regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).

Habitat Conservation Plan Area

The Kellaway HCP area includes two contiguous existing legal parcels, one that is 5.08 acres (ac) and the other 0.45 ac, legally described as Assessor Parcel Numbers 074-022-042 and 074-483-025, respectively. Both are located between Seahorse Lane and San Leandro Court in the southwestern portion of the unincorporated community of Los Osos, San Luis Obispo County, California. The current ITP authorizes incidental take of Morro shoulderband snail that would result from direct impacts to 1.68 ac of coastal dune scrub, maritime chaparral, and ruderal habitat occupied by this species. Take would be incidental to the otherwise lawful construction of a single-family residence on each of the two parcels, along with limited habitat enhancement on the larger of the parcels.

Incidental Take Permit History

We announced receipt of the application from Thomas R. Kellaway and Doris J. Redmon (the applicants) for the initial ITP via a Federal Register notice published on Friday, July 15, 2011 (76 FR 41811). We invited comments from the public on the application, which included the Kellaway Low-Effect Habitat Conservation Plan for the Morro Shoulderband Snail (HCP), which we subsequently determined to be eligible for a categorical exclusion under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq; NEPA). We issued the ITP on September 21, 2011.

On September 13, 2016, we announced receipt of an application for renewal of the ITP, to extend ITP expiration by 5 years (81 FR 62918). We renewed the permit, which did not authorize any additional take of the species, and then subsequently renewed the ITP for another 5 years on July 6, 2021.

The current ITP expires on September 20, 2024. The time required to process and obtain a coastal development permit from the California Coastal Commission was much longer than anticipated and required a project redesign. However, this redesign did not exceed the 1.68-ac development area or change the amount or form of take of Morro shoulderband snail currently authorized in the ITP. The permittees have requested no change to the covered species, covered activities, or HCP area and commit to fully implement the HCP.

Current Application

Measures in the HCP to minimize the amount and form of take include (1) pre-construction and construction monitoring surveys for Morro shoulderband snail within the 1.68-ac impact area, (2) capture and moving of all identified individuals of Morro shoulderband snail into the conservation easement area by an individual in possession of a current valid recovery permit for the species, (3) installation of protective fencing, and (4) development and presentation of a contractor and employee training program for Morro shoulderband snail. Mitigation for unavoidable take of Morro shoulderband snail includes (1) preservation in perpetuity of 3.83 ac of coastal dune scrub and maritime chaparral habitats occupied by Morro shoulderband snail in a conservation easement that will preclude any use not consistent with resource management, (2) enhancement of 0.24 ac of disturbed coastal dune scrub within the conservation easement to increase its value and function for Morro shoulderband snail, (3) post-construction monitoring and maintenance of the habitat enhancement activities within conservation easement area for a period of 4 years to ensure its success, and (4) establishment of a contract with a qualified biologist or entity to conduct the Morro shoulderband snail surveys and habitat restoration and monitoring to provide assurances that all of the minimization and mitigation measures contained in the plan are implemented as proposed.

Our Preliminary Determination

The Service made the determination in 2016 that ITP renewal would not represent a major Federal action that would significantly affect the quality of the human environment within the meaning of section 102(2)(C) of NEPA (September 13, 2016, 81 FR 62918). The project and anticipated impacts have not changed since that determination. As such, the Service has made a preliminary determination that the applicant's proposed project and the proposed mitigation and minimization measures would individually and cumulatively have a minor effect on the species and the human environment. Therefore, we have preliminarily determined that renewal of the ESA section 10(a)(1)(B) permit would be a low-effect ITP that individually or cumulatively would have a minor effect on the species and may qualify for application of a categorical exclusion pursuant to the Council on Environmental Quality's NEPA regulations, DOI's NEPA regulations, and the DOI Departmental Manual. A low-effect ITP is one that would result in (1) minor or nonsignificant effects on species covered in the HCP; (2) nonsignificant effects on the human environment; and (3) impacts that, when added together with the impacts of other past, present, and reasonably foreseeable actions, would not result in significant cumulative effects to the human environment.

Next Steps

The Service will evaluate the application for permit renewal and the comments received to determine whether to renew the ITP. After considering the preceding and other matters, we will determine whether the permit issuance criteria of section 10(a)(1)(B) of the ESA have been met. If met, the Service will renew ITP number TE48316A for Thomas R. Kellaway and Doris J. Redmond.

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. If you submit a comment at https://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the website. If you submit a hardcopy comment that includes personal identifying information, such as your address, phone number, or email address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Authority

The Service provides this notice under section 10(c) of the Endangered Species Act (16 U.S.C. 1531 et seq. ) and its implementing regulations (50 CFR 17.32) and the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations (40 CFR 1500-1508 and 43 CFR 46).