[Federal Register: May 9, 2003 (Volume 68, Number 90)]
[Page 25058-25059]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Notice of Availability and Public Comment Period for Documents 
Associated With the Incidental Take Permit (ITP) Previously Issued to 
Waterman's Realty Co./Winchester Creek Limited Partnership for the Home 
Port on Winchester Creek Habitat Conservation Plan

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: Waterman's Realty Company/Winchester Creek Limited Partnership 
was issued an ITP, permit number TE006310, on May 13, 1999, for take of 
the Delmarva for squirrel. In response to a ruling by the Court of 
Appeals, the U.S. Fish and Wildlife Service (Service) announces the 
availability of two documents associated with this ITP and the opening 
of a 60-day comment period.

DATES: Written comments on these documents should be received within 60 
days of the date of this publication.

ADDRESSES: Persons wishing to review these documents may obtain a copy 
at http://www.fws.gov/r5cbfo, or by written or telephone request to 
John Wolflin, U.S. Fish and Wildlife Service, 177 Admiral Cochrane 
Drive, Annapolis, Maryland 21401 (410-573-4573). Additionally, 
documents will be available for public inspection by appointment during 
normal business hours (8 to 4:30) at the U.S. Fish and Wildlife 
Service, Annapolis, Maryland. Data or comments concerning the offsite 
mitigation map or revised analysis should be submitted in writing to 
the Project Leader, U.S. Fish and Wildlife Service Office, Annapolis, 
Maryland at the above address. Please refer to permit number TE006310 
when submitting comments.

FOR FURTHER INFORMATION CONTACT: John Wolflin at the above Service 
Office, Annapolis, Maryland.

SUPPLEMENTARY INFORMATION: On May 13, 1999, after an expanded public 
comment period of 37 days on the proposed Home Port On Winchester Creek 
Habitat Conservation Plan (Home Port HCP), the Service issued an ITP 
for ``take'' of the Delmarva fox squirrel (DFS). The ITP was issued 
pursuant to the Endangered Species Act (ESA) Sec.  10(a)(2)(B), 16 
U.S.C. 1539(a)(2)(B), and its implementing regulations at 50 CFR 
17.22(b)(1). On September 7, 1999, a neighbor to the proposed 
development (Gerber) and Defenders of Wildlife (DOW) filed suit 
alleging numerous violations of the National Environmental Policy Act 
(NEPA), ESA and the Administrative Procedure Act (APA) related to 
issuance of the ITP for the Home Port HCP.
    The District Court granted summary judgment on all counts in favor 
of the Service on May 15, 2001. See Gerber v. Babbitt, 146 F.Supp.2d 1 
(D. D.C. 2001). DOW appealed the District Court's ruling on two issues. 
The availability of a map during the original public comment period, 
and the Service's finding regarding the impracticability of a project 
design alternative.
    A summary of the first issued follows: The Plaintiffs/Appellants, 
who had been provided approximately 45 days (due to receipt of an 
advance copy by agreement) to comment on the HCP, notified the Service 
shortly before the end of the public comment period of their desire for 
additional time to comment because no map of the offense mitigation 
area had been provided. The Service sent them the map, but did not 
extend the comment period. While the District Court ruled that omission 
of the map was a harmless error, not in violation of the ESA, the Court 

[[Page 25059]]

Appeals disagreed. See Gerber v. Norton, 294 F.3d 173, 175, 178-84 
(D.C. Cir. 2002). The Court of Appeals held that the failure to allow 
additional formal opportunity to comment once provided with the map 
violated the ESA and therefore remanded the matter to the District 
Court with instructions to remand to the agency. See id. at 184.
    The second issue is whether the Service satisfied its statutory 
issuance criteria. A summary of this issue follows: Section 10(a)(2) of 
the ESA, 16 U.S.C. 1539(a)(2), specifies the requirements for issuance 
of an incidental take permit. This provision is broken into two 
distinct subsections. One sets forth the required components of an 
application from which the Service can judge whether an applicant's 
submission is complete. See Section 10(a)(2)(A). 16 U.S.C. 
1539(a)(2)(A). The other provides the issuance criteria by which the 
Service must evaluate and approve an application package once it has 
determined the submission is complete. See section 10(a)(2)(B), 16 
U.S.C. 1539 (a)(2)(B).
    While the District Court ruled the Service had adequately justified 
all of its requisite findings, the Court of Appeals agreed with 
Plaintiffs/Appellants that the service had violated the ESA by failing 
to independently make the requisite finding that the developer would 
minimize and mitigate the impacts of the taking to the maximum extent 
practicable as required under Sec.  10(a)(2)(b)(ii), 16 U.S.C. 
1539(a)(2)(b)(ii). The Court of Appeals held that the Service's finding 
concerning whether the impacts of the taking from the project would be 
minimized and mitigated to the maximum extent practicable was made 
improperly. Specifically, the Court held that the Service did not make 
its own independent finding as to whether a possible project change 
identified in the record (the ``Reduced Take Alternative'') was 
    The Service has now conducted its own independent analysis, which 
is reflected in the draft document entitled ``Draft--Assessment of 
Practicability of the Reduced Take Alternative on Remand''. This 
document evaluates the practicability of additional minimization 
measures discussed in the Reduced Take Alternative in the Home Port HCP 
and the practicability of measures considered as alternatives in the 
Environmental Assessment. The Service has independently evaluated the 
operative constraints on these measures, which include local 
governmental processes and permitting, costs and time delays. While the 
Service was previously aware of many of these constraints, no analysis 
was presented in detail in any document.
    Accordingly, the Service makes available for public review and 
comment: (1) A map of the offsite mitigation land proposed by the 
applicant to mitigate for impacts to the Delmarva fox squirrel from the 
Home Port development in accordance with 16 U.S.C. 1539(a)(2)(B): and 
(2) a revised analysis of the statutorily mandated finding under 16 
U.S.C. 1539 (a)(2(B)(ii), that ``the applicant will, to the maximum 
extent practicable, minimize and mitigate the impacts of such taking''.

Public Comments Solicited

    The Service solicits written comments on the offsite mitigation 
land proposed by the applicant and a more detailed analysis of the 
practicability of the reduced take alternative. All comments received 
by the date specified above will be considered prior to completion of a 
revised decision document on remand.

    Dated: April 18, 2003.
Richard O. Bennett,
Acting Regional Director.
[FR Doc. 03-11531 Filed 5-8-03; 8:45 am]