[Federal Register: November 30, 2004 (Volume 69, Number 229)]
[Page 69617-69618]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Proposed Low Effect Habitat Conservation Plan for Whiskey Creek 
Bald Eagle Nest Site in Tillamook County, OR

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; receipt of application.


SUMMARY: This notice advises the public that Mick and Donna Ghormley, 
Ken Bilyeu, and Forrest Dickerson (Applicants) have applied to the Fish 
and Wildlife Service (Service or ``we'') for an incidental take permit 
(ITP), pursuant to section 10(a)(1)(B) of the Endangered Species Act of 
1973, as amended (Act). The requested 25-year permit would authorize 
the incidental take of the federally-listed as threatened bald eagle 
(Haliaeetus leucocephalus), associated with the lawful construction of 
three residential homes, associated utilities, access driveways, and 
human-use activities adjacent to a nest tree. The property is located 
adjacent to Netarts Bay, Tillamook County, Oregon.
    We are requesting comments on the permit application and on whether 
the proposed Habitat Conservation Plan (HCP) qualifies as a ``low 
effect'' HCP, eligible for a categorical exclusion under the National 
Environmental Policy Act (NEPA) of 1969, as amended. We explain the 
basis for this possible determination in a draft Environmental Action 
Statement (EAS), which is also available for public review.

DATES: Written comments must be received by 5 p.m. on December 30, 

ADDRESSES: Comments should be addressed to Kemper McMaster, State 
Supervisor, Fish and Wildlife Service, Oregon Fish and Wildlife Office, 
2600 SE 98th Ave., Suite 100, Portland, Oregon, 97266; facsimile (503) 

FOR FURTHER INFORMATION CONTACT: Richard Szlemp, Fish and Wildlife 
Biologist (see ADDRESSES), or telephone (503) 231-6179.


Availability of Documents

    Individuals wishing copies of the application, proposed HCP, or 
EAS, should contact the Service by telephone (see FOR FURTHER 
INFORMATION CONTACT) or by letter (see ADDRESSES). Copies of the 
subject documents also are available for public inspection during 
regular business hours at the Oregon Fish and Wildlife Office (see 


    Section 9 of the Act and its implementing regulations prohibit the 
take of animal species listed as endangered or threatened. Under the 
Act, the following activities are defined as take: to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect listed 
animal species, or attempt to engage in such conduct (16 U.S.C. 1538). 
However, under section 10(a) of the Act, the Service may issue permits 
to authorize incidental take of listed animal species. ``Incidental 
take'' is defined by the Act as take that is incidental to, and not the 
purpose of, carrying out an otherwise lawful activity. Regulations 
governing incidental take permits for threatened and endangered species 
are found in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 
17.32. The Applicants are seeking a permit for the incidental take of 
the bald eagle during the life of the permit.
    Proposed covered activities under this HCP include construction of 
three conventional homes, associated utilities, access driveways and 
parking areas, and activities associated with occupation of the homes. 
The proposed three residential lots (lot 400, approx. 0.52 acre; lot 
500, approx. 0.43 acre; and lot 201, approx. 4.3 acres) are platted in 
a subdivision. The Whiskey Creek bald eagle nest tree occurs on lot 
400. The nest was discovered in 2001 and has been monitored for the 
past 4 years. There have been no chicks or eggs observed to date.
    The proposed minimization and mitigation measures include 
protecting all but one of the 26 suitable bald eagle perch trees 
(greater than 30 inches in diameter) on the three lots. The proposed 
access road to lot 201 comes close to four other large trees and 
excavation near these trees will be minimized as practicable. The 
landowner plans to preserve the remaining large trees as a management 
action. This proposal has the potential to impact nesting success of 
the Whisky Creek bald eagle pair by loss of the nest tree and/or 
disturbance (i.e., noise and human activity). The possibility that the 
nest tree will be lost is related to the likelihood that the proposed 
houses and utilities will cut the roots of the nest tree or the 
adjacent large spruce tree. All excavations for house foundations, 
driveways and septic fields are proposed outside of the estimated root 
zones for each tree (50 feet from the nest tree). Outdoor construction 
will be prohibited from 15 January to 15 August of any year if the nest 
is successful and

[[Page 69618]]

from 15 January to 15 May of any year if the nest is not successful.
    Approval of the HCP may qualify as a categorical exclusion under 
NEPA, as provided by the Departmental Manual (516 DM 2, Appendix 1, and 
516 DM 6, Appendix 1) and as a ``low effect'' plan as defined by the 
Habitat Conservation Planning Handbook (Service, November 1996). 
Determination of low effect HCPs is based upon the plan having: Minor 
or negligible effects on federally-listed, proposed, and candidate 
species and their habitats; minor or negligible effects on other 
environmental values or resources; and impacts that considered together 
with the impacts of other past, present, and reasonably foreseeable 
similarly situated projects would not result, over time, in cumulative 
effects to the environmental values or resources which would be 
considered significant. If it is found to qualify as a low-effect HCP, 
further NEPA documentation would not be required.

Public Review and Comment

    If you wish to comment on the permit application, draft 
Environmental Action Statement or the proposed HCP, you may submit your 
comments to the address listed in the ADDRESSES section of this 
document. We will evaluate this permit application, associated 
documents, and comments submitted thereon to determine whether the 
permit application meets the requirements of section 10(a) of the Act 
and NEPA regulations. Individual respondents may request that we 
withhold their home address from the record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the record a respondent's identity, as allowable by 
law. If you wish us to withhold your name and/or address, you must 
state this prominently at the beginning of your comment. All 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, are available for public inspection in their entirety. 
If we determine that the requirements are met, we will issue an 
incidental take permit under section 10(a)(1)(B) of the Act to the 
Applicants for the take of the bald eagle, incidental to otherwise 
lawful activities in accordance with the terms of the permit. We will 
not make our final decision until after the end of the 30-day comment 
period and will fully consider all comments received during the comment 
    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.
    The Service provides this notice pursuant to section 10(c) of the 
Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6).

    Dated: November 2, 2004.
Daniel H. Diggs,
Acting Deputy Regional Director, Fish and Wildlife Service, Portland, 
[FR Doc. 04-26418 Filed 11-29-04; 8:45 am]