West Mojave Plan FEIR/S - Desert Managers Group

3.1.4.4 Critical HabitatCritical habitat has been designated for the desert tortoise and Inyo California towhee.Critical habitat designations for the least Bell’s vireo and southwestern willow flycatcher do notextend into the West Mojave planning area. Designations for the arroyo toad and red-legged froghave been vacated by recent judicial decisions. On October 30, 2002, the United States DistrictCourt for the District of Columbia set aside the critical habitat designation for the arroyo toad andordered the Service to publish a new final rule by July 30, 2004 (Building Industry Legal DefenseFoundation, et al., v. Gale Norton, Secretary of the Interior, et al., and Center for BiologicalDiversity, Inc. and Defenders of Wildlife, Inc. Civil Action No. 01-2311 (JDB) (U.S. District Court,District of Columbia)). A similar ruling in a different case was made for the red-legged frog. Adiscussion of each of these designations follows.• Carbonate endemic plants: Critical habitat for four of the five listed carbonate endemicplant species was designated in the West Mojave on December 14, 2002. Several distinctareas on the north slope of the San Bernardino Mountains near Lucerne Valley weredesignated to include known occupied habitat for Cushenbury milkvetch, Cushenburybuckwheat, Cushenbury oxytheca and Parish’s daisy. A total of 1,585 acres of BLM landcomprise the critical habitat, along with a smaller acreage of private land. [DesignatedDecember 2002, Federal Register 67(247):78570-78610.]• Desert Tortoise: Critical habitat for the desert tortoise occupies substantial portions of thecentral and southeastern West Mojave planning area (USFWS 1994a). The designationincludes parts of three military bases and covers much of three of the four participatingcounties, with an extension into Riverside County within Joshua Tree National Park.[Designated February 1994, Federal Register 59(26):5820-5866.]• Inyo California Towhee: Critical habitat for the Inyo California towhee lies entirely withinInyo County and surrounds springs and seeps occupied by this endangered bird. Themajority of critical habitat is located on the China Lake NAWS. [Designated 1987, FederalRegister 52:28780-28788.]3.1.4.5 Exceptions to FESA’s Take ProhibitionTake may be allowed in certain cases where it is incidental to the carrying out of anotherwise lawful activity. These cases include: (1) FESA Section 7 consultation procedures, forprojects authorized, funded or carried out by a federal agency (“federal actions”); and (2) issuanceby USFWS of an incidental take permit, for non-federal actions. Each is discussed below.Incidental Take Permits: The USFWS may authorize, by permit, takings of an animallisted by USFWS as threatened or endangered, which are incidental to, and not the purpose of, thecarrying out of an otherwise lawful activity that is not a federal action. (FESA Section 10(a)(1)(B).)These “Section 10(a)” permits may be issued if an applicant for a permit submits to USFWS a“conservation plan” that satisfies the following permit issuance criteria:Chapter 3 3-32