[Federal Register: September 4, 2003 (Volume 68, Number 171)]
[Page 52609-52610]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish And Wildlife Service

Notice of Availability of Documents associated With Proceedings 
Pursuant To Remand Involving the Incidental Take Permit 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, Department of the Interior.

ACTION: Notice of availability.


SUMMARY: Waterman's Realty Company/Winchester Creek Limited Partnership 
was issued an Incidental Take Permit (ITP), permit number TE006310, on 
May 13, 1999, for incidental take of the Delmarva fox squirrel. The 
U.S. Fish and Wildlife Service (Service) announces that it has 
completed the process required to implement the remand ordered by the 
United States Court of Appeals for the District of Columbia Circuit and 
that a final decision document is available. The Service has determined 
that no changes to the Home Port incidental take permit are required as 
a result of the updated analysis presented in the decision document.

ADDRESSES: Persons wishing to review the Service's final decision 
document may obtain a copy at http://
[[Page 52610]]

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.

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

SUPPLEMENTARY INFORMATION: On May 13, 1999, the Service issued an ITP 
for incidental ``take'' of the Delmarva fox squirrel. The ITP was 
issued pursuant to Section 10 of 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 filed suit in Federal district court 
alleging violations of the National Environmental Policy Act, the ESA 
and the Administrative Procedure Act related to issuance of the ITP for 
the Home Port on Winchester Creek Habitat Conservation Plan.
    The District Court for the District of Columbia 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). On appeal, the U.S. 
Court of Appeals for the D.C. Circuit remanded the matter to the 
District Court with instructions to remand to the agency to address two 
issues. See id. at 184. Specifically, the Court of Appeals held that 
the Service should have made a map of the mitigation area available 
during the public comment period and should have made an independent 
finding as to whether a possible project change identified in the 
record (the ``Reduced Take Alternative'') was practicable.
    Pursuant to the remand, the Service conducted an independent 
analysis which was reflected in the draft document entitled ``Draft--
Assessment of Practicability of the Reduced Take Alternative on 
Remand.'' That document, in addition to the map, were made available 
for a 60-day public comment period starting May 9, 2003, (see 68 Fed. 
Reg. 25058). The Service received two comment letters, one from Mr. 
Gerber and one from Defenders of Wildlife. The Service has reviewed and 
considered those comments and has prepared a final decision document 
entitled ``U.S. Fish and Wildlife Service's Decision Regarding the 
Incidental Take Permit (TE006310) to Maureen D. Waterman Following 
Remand'' which includes the Service's responses to the comments 
received and is now available for public review at the address listed 


    The primary author of this notice is Glenn Smith, Assistant 
Coordinator, Division of Endangered Species, Northeast Region, U.S. 
Fish and Wildlife Service.

    Authority: The authority for this action is Section 10 of 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 

    Dated: August 28, 2003.
Richard O. Bennett,
Acting Regional Director, Region 5, Fish and Wildlife Service.
[FR Doc. 03-22608 Filed 9-2-03; 10:53 am]