[Federal Register: August 13, 2004 (Volume 69, Number 156)]
[Proposed Rules]               
[Page 50147-50149]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants: Notice of Receipt 
of an Application for an Incidental Take Permit and Availability and 
Opening of Comment Period for an Environmental Assessment/Habitat 
Conservation Plan (EA/HCP) for the Red-Cockaded Woodpecker in 
Association With Mr. Owen Strickler's Timber Harvest of a 75-acre Tract 
of Forest on the Border of Sussex and Southampton Counties, Virginia

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.


SUMMARY: This document advises the public that Mr. Owen Strickler 
(president and owner of Virginia-Carolina Properties) has applied to 
the U.S. Fish and Wildlife Service (Service) for an incidental take 
permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species 
Act of 1973 (ESA), as amended. The application has been assigned permit 
number (TE090858-0). The proposed permit would authorize the incidental 
take of a federally endangered species, the red-cockaded woodpecker 
(RCW) (Picoides borealis), known to occur on property owned by the 
applicant and located off of State Route 612 on the border of Sussex 
and Southampton Counties, Virginia. The proposed taking is incidental 
to the planned timber harvest of the 75-acre tract of land. The permit 
would be in effect for up to 5 years depending on the availability of 
donor RCWs at Carolina Sandhills National Wildlife Refuge to be 
translocated for mitigation.
    The Service announces the receipt of the Strickler ITP application 
and the

[[Page 50148]]

availability of the proposed Strickler HCP, which accompanies the ITP 
application, for public comment. In addition, the Service also 
announces the availability of a draft EA for the proposed issuance of 
the ITP. This notice is provided pursuant to section 10(c) of the ESA 
and National Environmental Policy Act of 1969 (NEPA) regulations (40 
CFR 1506.6).
    The Service will evaluate the application, associated documents, 
and comments submitted thereon to determine whether the application 
meets the requirements of NEPA regulations and section 10(a) of the 
ESA. If it is determined that the requirements are met, a permit will 
be issued for the incidental take of the RCW. The final NEPA and permit 
determinations will not be completed until after the end of the 60-day 
comment period and will fully consider all public comments received 
during the comment period.

DATES: Written comments on the permit application, HCP, and EA should 
be sent to the Virginia Field Office (VAFO) (see ADDRESSES) and should 
be received on or before October 12, 2004.

ADDRESSES: Persons wishing to review the permit application, HCP, and 
draft EA may obtain a copy by writing the U.S. Fish and Wildlife 
Service, Virginia Field Office, 6669 Short Lane, Gloucester, Virginia 
23061. Requests for the documentation must be in writing to be 
processed. Documents will also be available for public inspection by 
written request, by appointment only, during normal business hours (8 
to 4:30). Written data or comments concerning the permit application, 
draft EA, and/or HCP should also be addressed to the Field Supervisor, 
U.S. Fish and Wildlife Service, Virginia Field Office, Gloucester, 
Virginia. Please refer to permit (TE090858-0) when submitting comments.

FOR FURTHER INFORMATION CONTACT: Ms. Jolie Harrison or Mr. Eric Davis, 
VAFO, at (804) 693-6694 (see ADDRESSES above).

SUPPLEMENTARY INFORMATION: Section 9 of the ESA and Federal regulation 
prohibits the ``taking'' of a species listed as endangered or 
threatened. Under the ESA, the term ``take'' means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect listed 
wildlife, or to attempt to engage in any such conduct. The Service may, 
under limited circumstances, issue permits to ``incidentally take'' 
listed species, if such taking is incidental to, and not the purpose 
of, otherwise lawful activities. Regulations governing permits for 
endangered species are promulgated in 50 CFR 17.22.


    Mr. Strickler has applied to the Service for an incidental take 
permit pursuant to section 10(a) of the ESA. The Applicant proposes to 
implement an HCP for the RCW that will allow removal of RCW habitat. 
The Applicant's proposed timber harvest is likely to result in take, as 
defined in the ESA and its implementing regulations, of listed species. 
Authorized take would only affect the RCW; take of other federally 
listed species is specifically excluded from the proposed action. This 
permit would authorize the incidental take of one RCW group, consisting 
of a single male, at Mr. Strickler's property, through otherwise lawful 
activities, specifically the harvest of 75 acres of timber, occurring 
in RCW habitat. The HCP and permit would be in effect for a maximum of 
5 years upon issuance.
    The Applicant proposes the harvest of all mature timber at his 75-
acre site. Timber will be harvested using a feller buncher, which will 
transport cut trees directly to a log deck, where they will be loaded 
onto a truck and transported to Mr. Strickler's mill. The site will 
undergo a prescribed burn and subsequently be replanted with loblolly 
pine (Pinus taeda). The southern boundary of the project area is 
approximately 2,000 feet north of State Route 612 where it joins State 
Route 615 in Southampton County.
    The anticipated incidental take will consist of harm through 
permanent loss of 75 acres of foraging habitat and a cluster of cavity 
trees, as well as possible death of one RCW from predation or 
starvation due to the subsequent lack of shelter or foraging habitat. 
Mr. Strickler proposes to implement measures to minimize, mitigate, and 
monitor impacts to the RCW. Through an agreement with the Center for 
Conservation Biology, College of William and Mary, impacts to the lone 
male RCW will be minimized by removing him from the project site prior 
to timber harvest and placing him in a prepared cavity at an active 
cluster (at the Piney Grove Preserve, Sussex, Virginia) with a subadult 
female moved in simultaneously. Through an agreement with The Nature 
Conservancy, if the translocated lone male does not remain at Piney 
Grove, his loss will be mitigated by translocating a maximum of three 
subadult pairs from the designated donor population at the Carolina 
Sandhills National Wildlife Refuge in McBee, South Carolina to the 
Piney Grove Preserve.
    The draft EA considers the environmental consequences of three 
alternatives: A no-action alternative, permit issuance (the proposed 
alternative), and issuance of permit with conditions (selective 
    The Service provides this notice pursuant to section 10(c) of the 
ESA. The Service will evaluate whether the issuance of a section 
10(a)1)(B) ITP complies with section 7 of the ESA by conducting an 
intra-Service section 7 consultation. The results of the biological 
opinion, in combination with the evaluation of the permit application, 
the HCP, EA, and comments submitted thereon, will be used in the final 
analysis to determine whether the application meets the requirements of 
section 10(a) of the ESA. If the requirements are met, the Service will 
issue a permit to Mr. Strickler for the incidental take of one RCW 
group, consisting of one male, during the proposed harvest of timber on 
the 75-acre project site. We will make the final permit decision no 
sooner than 60 days from the date of this notice.
    Pursuant to an order issued on June 10, 2004, by the District Court 
for the District of Columbia in Spirit of the Sage Council v. Norton, 
Civil Action No. 98-1873 (D. D.C.), the Service is enjoined from 
issuing new section 10(a)(1)(B) permits or related documents containing 
``No Surprises'' assurances, as defined by the Service's ``No 
Surprises'' rule published at 63 FR 8859 (February 23, 1998), until 
such time as the Service adopts new permit revocation rules 
specifically applicable to section 10(a)(1)(B) permits in compliance 
with the public notice and comment requirements of the Administrative 
Procedures 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 June 10, 2004, order has been rescinded or the Service's 
authority to issue permits with ``No Surprises'' assurances has been 
otherwise reinstated, the Service will not approve any incidental take 
permits or related documents that contain ``No Surprises'' assurances.
    Comments, including names and home addresses of respondents, will 
be available for public review during regular business hours. 
Individual respondents may request confidentiality. If you wish us to 
withhold your name and or address from public review or from disclosure 
under the Freedom of Information Act, you must state this prominently 
at the beginning of your written comment. Such requests will be honored 
to the extent allowed by law. We will not, however, consider anonymous

[[Page 50149]]

comments. All submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, will be made available for public 
inspection in their entirety.
    Author: The primary author of this document is Julia Harrison from 
the VAFO, Endangered Species Program.

    Authority: The authority for this section is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 23, 2004.
Anthony D. Leger,
Acting Regional Director, Region 5.
[FR Doc. 04-18629 Filed 8-12-04; 8:45 am]