[Federal Register: September 21, 2004 (Volume 69, Number 182)]
[Page 56455-56456]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Draft Environmental Assessment/Habitat Conservation Plan and 
Receipt of an Application for an Incidental Take Permit for the Pinery 
West Subdivision, City of Parker, Douglas County, CO

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application


SUMMARY: This notice advises the public that U.S. Homes (Applicant) has 
applied to the U.S. Fish and Wildlife Service (Service) for an 
incidental take permit pursuant to section 10(a)(1)(B) of the 
Endangered Species Act (ESA) of 1973, as amended. The proposed permit 
would authorize the incidental take of the Preble's meadow jumping 
mouse, Zapus hudsonius preblei (Preble's), federally-listed as 
threatened, through loss and modification of its habitat associated 
with the Pinery West Subdivision, City of Parker, Douglas County, 
Colorado. The duration of the permit would be 30 years from the date of 
    We announce the receipt of the Applicant's incidental take permit 
application, which includes a combined Environmental Assessment/Habitat 
Conservation Plan (EA/HCP) for Preble's for the Pinery West 
Subdivision. The proposed EA/HCP is available for public review and 
comment. It fully describes the proposed project and the measures the 
Applicant would undertake to minimize and mitigate project impacts to 
the Preble's.
    The Service requests comments on the EA/HCP and associated 
documents for the proposed issuance of the incidental take permit. All 
comments on the EA and permit application will become part of the 
administrative record and will be available to the public. We provide 
this notice pursuant to section 10(a) of the ESA and National 
Environmental Policy Act regulations (40 CFR 1506.6).

DATES: Written comments on the permit application and EA/HCP should be 
received on or before November 22, 2004.

ADDRESSES: Comments regarding the permit application and EA/HCP should 
be addressed to Susan Linner, Field Supervisor, U.S. Fish and Wildlife 
Service, Colorado Field Office, 755 Parfet Street, Suite 361, Lakewood, 
Colorado 80215. Comments also may be submitted by facsimile to (303) 

[[Page 56456]]

FOR FURTHER INFORMATION CONTACT: Ms. Barbara Spagnuolo, Fish and 
Wildlife Biologist, Colorado Field Office, telephone (303) 275-2370.


Document Availability

    Individuals wishing copies of the EA/HCP and associated documents 
for review should immediately contact the above office. Documents also 
will be available for public inspection, by appointment, during normal 
business hours at the above address.


    Section 9 of the ESA and Federal regulations prohibit the ``take'' 
of a species listed as endangered or threatened. Take is defined under 
the ESA, in part, as to kill, harm, or harass a federally listed 
species. However, the Service may issue permits to authorize 
``incidental take'' of listed species under limited circumstances. 
Incidental take is defined under the ESA as take of a listed species 
that is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity under limited circumstances. Regulations 
governing permits for threatened species are promulgated in 50 CFR 
    The Pinery West Subdivision Property is located approximately seven 
miles south of Parker on Route 83, along Cherry Creek, in the City of 
Parker, Douglas County, State of Colorado. The project site is 127.1 
hectares (314.3 acres), but the proposed project will directly impact a 
maximum of 6.3 hectares (15.5 acres), according to the Service's 
definition of Preble's habitat, that may result in incidental take of 
the Preble's. An HCP has been developed as part of the preferred 
alternative to allow for the incidental take of the Preble's by 
permitting a commercial and industrial subdivision to be constructed in 
an area that may be periodically used as foraging, breeding, or 
hibernation habitat.
    In addition to the Proposed Action, alternatives considered 
included: (a) waiting for the Douglas County Regional HCP to be 
approved; (b) construction of the subdivision at an alternative site; 
(c) an alternative site design that included a residential development; 
and (d) no action. The EA analyzes the onsite, offsite, and cumulative 
impacts of the proposed project and all associated development and 
construction activities and mitigation activities on the Preble's, and 
also on vegetation, wildlife, wetlands, geology/soils, land use, water 
resources, air and water quality, and cultural resources.
    Only one federally-listed species, the threatened Preble's, occurs 
onsite and has the potential to be adversely affected by the project. 
To mitigate impacts that may result from incidental take, the HCP 
provides mitigation that will likely provide a net benefit to the 
Preble's mouse and other wildlife by enhancing the Cherry Creek 
corridor onsite and its associated riparian areas through revegetation 
efforts, including planting of native grasses and shrubs, and 
protecting existing habitat along Cherry Creek from any future 
development by placing land in open space. Following construction, 1.9 
hectares (4.8 acres) of uplands and 16.9 hectares (39.7 acres) of 
floodplain will be reseeded. Willows also will be planted on 0.8 
hectare (2.0 acres) of floodplain. In addition, grazing will be removed 
and noxious weeds will be controlled on 52.04 hectares (128.6 acres). 
The Applicant also proposes to dedicate 52.04 hectares (128.6 acres) of 
the project that is not developed to Douglas County as open space. Two 
large sediment control ponds will be constructed to collect storm water 
from the completed subdivision. The water will be discharged at a 
controlled rate, thus minimizing erosion and facilitating revegetation 
of upland areas with additional water. Measures will be taken during 
construction to minimize impact to the habitat, including the use of 
silt fencing to reduce the amount of sediment from construction 
activities that reaches the creek. All of the proposed mitigation area 
is within the boundaries of the Pinery West Subdivision property, all 
of which is included in the drainage basin of Cherry Creek.
    This notice is provided pursuant to section 10(c) of the ESA. We 
will evaluate the permit application, the EA/HCP, and comments 
submitted therein to determine whether the application meets the 
requirements of section 10(a) of the ESA. If it is determined that 
those requirements are met, a permit will be issued for the incidental 
take of the Preble's in conjunction with the construction of Pinery 
West Subdivision. The final permit decision will be made no sooner than 
60 days after the date of this notice.
    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 the 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 that contain 
``No Surprises'' assurances.

Sharon Rose,
Regional Director, Denver, Colorado.
[FR Doc. 04-21171 Filed 9-20-04; 8:45 am]