[Federal Register: August 9, 2004 (Volume 69, Number 152)]
[Page 48251-48252]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Receipt of a Request To Amend the Woodlands' 10(a)(1)(B) Permit 
for Incidental Take of the Bald Eagle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.


SUMMARY: The Woodlands Operating Company, L.P., has requested an 
amendment to the incidental take permit pursuant to Section 10(a) of 
the Endangered Species Act (Act) issued by the U.S. Fish and Wildlife 
Service (Service) on August 23, 2002 under permit number TE-048649. The 
permit authorizes incidental take of the threatened bald eagle 
(Haliaeetus leucocephalus) as a result of the otherwise lawful 
development of the East Lake Area of The Woodlands, Montgomery County, 
Texas. The requested amendment would authorize incidental take at all 
nests built by the pair of bald eagles whose territory is on the East 
Lake Area of the Woodlands and that a 330 foot management zone be 
established around each active nest site.

DATES: To ensure consideration, written comments must be received on or 
before September 8, 2004.

ADDRESSES: Persons wishing to review the application may obtain a copy 
by writing to the Regional Director, U.S. Fish and Wildlife Service, 
P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. In addition, 
the amendment application will be available for public inspection by 
written request, by appointment only, during normal business hours (8 
to 4:30) at the Service's Clear Lake Ecological Services Field Office, 
17629 El Camino Real, Suite 211, Houston, Texas 77058 (281/286-8282). 
Written comments concerning the application should be submitted to the 
Field Supervisor, U.S. Fish and Wildlife Service, Houston, Texas, at 
the above address. Please refer to the amendment to TE-048649 when 
submitting comments.

FOR FURTHER INFORMATION CONTACT: Edith Erfling at the U.S. Fish and 
Wildlife Service, Clear Lake Ecological Services Field Office, 17629 El 
Camino Real, Suite 211, Houston, Texas 77058 (281/286-8282).

SUPPLEMENTARY INFORMATION: Section 9 of the Act prohibits the 
``taking'' of endangered species such as the bald eagle. However, the 
Service, under limited circumstances, may issue permits to take 
endangered wildlife species incidental to, and not the purpose of, 
otherwise lawful activities. Regulations governing permits for 
endangered species are at 50 CFR 17.22.


     A pair of bald eagles were discovered in December of 1999 nesting 
on the east shore of Lake Woodlands, an amenity lake created for The 
Woodlands development. A Habitat Conservation Plan was developed and 
approved that addressed the measures the Applicant proposed to minimize 
and mitigate for the anticipated take and an incidental take permit was 
issued on August 23, 2002.
    In early 2004, the Permittee discovered that the nesting pair of 
bald eagles that was the subject of the original permit action had 
constructed a second nest site approximately \1/4\ mile south of the 
previous nest in an area of existing and ongoing development activity. 
Water lines, sanitary sewer lines, and storm sewer lines were installed 
within 200-300 feet of the new nest site presumably while the eagles 
were building the nest. The new nest is also located approximately 700 
feet from Woodlands Parkway, which is used by 48,000 cars per day. As 
of May 2004, two eaglets had fledged from the new nest and have been 
seen perching in trees overlooking the on-going construction activity.
    There was no construction activity or other known disturbance 
within 1500 feet of the old nest tree, which may have caused the pair 
of eagles to move to a new site. A hole was observed in the existing 
nest at the end of the 2003 nesting season.
    Applicant: The Woodlands is a 28,000-acre master-planned new

[[Page 48252]]

community development, located approximately 30 miles north of Houston, 
Montgomery County, Texas. The current population of The Woodlands is 
approximately 63,000 residents. At build-out, the total population is 
expected to reach 110,000 residents. This action may result in the 
abandonment of the nest site. The Permittee proposes to compensate for 
this incidental take by agreeing to provide buffers between forested 
areas and development as well as funding a bald eagle research project.
    Pursuant to the June 10, 2004, order in Spirit of the Sage Council 
v. Norton, Civil Action No. 98-1873 (D. D.C.), the Service is enjoined 
from approving new section 10(a)(1)(B) permits or related documents 
containing ``No Surprises'' assurances until such time as the Service 
adopts new permit revocation rules specifically applicable to section 
10(a)(1)(B) permits in compliance with public notice and comment 
requirements of the Administrative Procedure Act. This notice concerns 
a step in the review and processing of a section 10(a)(1)(B) permit and 
any subsequent permit issuance will be in accordance with the Court's 
order. Until such time as the Service's authority to issue permits with 
``No Surprises'' assurances has been reinstated, the Service will not 
approve any incidental take permits or related documents containing 
``No Surprises'' assurances.

Stuart C. Leon,
Acting Regional Director, Southwest Region, Albuquerque, New Mexico.
[FR Doc. 04-18102 Filed 8-6-04; 8:45 am]