[Federal Register: March 25, 2004 (Volume 69, Number 58)]
[Page 15358-15360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Receipt of an Application for an Incidental Take Permit for 
Construction on Single-Family Lots, in Brevard County, FL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Maronda Homes, Inc. Of Florida (Applicant), seeks an 
incidental take permit (ITP) from the U.S. Fish and Wildlife Service, 
pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 
(Act), as amended. The ITP would authorize incidental take of the 
Florida scrub-jay (Aphelocoma coerulescens), on three adjoining single 
family lots for a period of one (1) year. The proposed taking, which 
would affect one family of scrub-jays, is incidental to land clearing 
and other activities associated with the construction of three single 
family homes on three 0.22-acre lots (0.66 acre total) in Brevard 
County, Florida (Project).
    The Applicant's Habitat Conservation Plan (HCP) describes the 
mitigation and minimization measures proposed to address the effects of 
the Project to the Florida scrub-jay. These measures are outlined in 
the SUPPLEMENTARY INFORMATION section below. We have determined that 
the Applicant's proposal, including the proposed mitigation and 
minimization measures, will individually and cumulatively have a minor 
or negligible effect on the species covered in the HCP. Therefore,

[[Page 15359]]

the ITP is a ``low-effect'' project and would qualify as a categorical 
exclusion under the National Environmental Policy Act (NEPA), as 
provided by the Department of Interior Manual (516 DM2, Appendix 1 and 
516 DM 6, Appendix 1). We announce the availability of the HCP for the 
incidental take application. Copies of the HCP may be obtained by 
making a request to the Regional Office (see ADDRESSES). Requests must 
be in writing to be processed. This notice is provided pursuant to 
Section 10 of the Endangered Species Act and NEPA regulations (40 CFR 

DATES: Written comments on the permit application, supporting 
documentation, categorical exclusion and HCP should be sent to the 
Service's Regional Office (see ADDRESSES) and should be received on or 
before April 26, 2004.

ADDRESSES: Persons wishing to review the application and HCP may obtain 
a copy by writing the Service's Southeast Regional Office, Atlanta, 
Georgia. Please reference permit number TE080452-0 in such requests. 
Documents will also be available for public inspection by appointment 
during normal business hours at the Regional Office, 1875 Century 
Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species 
Permits), or Field Supervisor, U.S. Fish and Wildlife Service, 6620 
Southpoint Drive South, Suite 310, Jacksonville, Florida 32216-0912.

Coordinator, (see ADDRESSES above), telephone: 404/679-7313, facsimile: 
404/679-7081; or Mr. Michael Jennings, Fish and Wildlife Biologist, 
Jacksonville Ecological Services Office, (see ADDRESSES above), 
telephone: 904/232-2580 extension 113.

SUPPLEMENTARY INFORMATION: If you wish to comment, you may submit 
comments by any one of several methods. Please reference permit number 
TE080452-0 in such comments. You may mail comments to the Service's 
Regional Office (see ADDRESSES). You may also comment via the Internet 
to david_dell@fws.gov. Please submit comments over the internet as an 
ASCII file avoiding the use of special characters and any form of 
encryption. Please also include your name and return address in your 
internet message. If you do not receive a confirmation from us that we 
have received your internet message, contact us directly at either 
telephone number listed below (see FOR FURTHER INFORMATION CONTACT). 
Finally, you may hand deliver comments to either Service office listed 
below (see ADDRESSES). Our practice is to make comments, including 
names and home addresses of respondents, available for public review 
during regular business hours. Individual respondents may request that 
we withhold their home address from the administrative record. We will 
honor such requests to the extent allowable by law. There may also be 
other circumstances in which we would withhold from the administrative 
record a respondent's identity, as allowable by law. If you wish us to 
withhold your name and address, you must state this prominently at the 
beginning of your comments. We will not, however, consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    The Florida scrub-jay (scrub-jay) is geographically isolated from 
other subspecies of scrub-jays found in Mexico and the western United 
States. The scrub-jay is found exclusively in peninsular Florida and is 
restricted to xeric uplands (predominately in oak-dominated scrub). 
Increasing urban and agricultural development and subsequent fire 
protection have resulted in habitat degradation, loss and fragmentation 
which adversely affected the distribution and numbers of scrub-jays. 
The total estimated population is between 7,000 and 11,000 individuals.
    The decline in the number and distribution of scrub-jays in east-
central Florida has been exacerbated by tremendous urban growth in the 
past 50 years. Much of the historic commercial and residential 
development has occurred on the dry soils which previously supported 
scrub-jay habitat. Based on existing soils data, much of the historic 
and current scrub-jay habitat of coastal east-central Florida occurs 
proximal to the current shoreline and larger river basins. Much of this 
area of Florida was settled early because few wetlands restricted urban 
and agricultural development. Due to the effects of urban and 
agricultural development over the past 100 years, much of the remaining 
scrub-jay habitat is now relatively small and isolated. What remains is 
largely degraded due to the exclusion of fire which is needed to 
maintain xeric uplands in conditions suitable for scrub-jays.
    Lots 3 and 4 are locations where scrub-jays were sighted during 
2002 county surveys for this species; no observations were recorded on 
Lot 5. Scrub-jays using the subject residential lots and adjacent 
properties are part of a larger complex of scrub-jays located in a 
matrix of urban and natural settings in areas of Brevard and northern 
Indian River counties. Within the City of Palm Bay, 20 families of 
scrub-jays persist in habitat fragmented by residential development. 
Scrub-jays in urban areas are particularly vulnerable and typically do 
not successfully produce young that survive to adulthood. Persistent 
urban growth in this area will likely result in further reductions in 
the amount of suitable habitat for scrub-jays. Increasing urban 
pressures are also likely to result in the continued degradation of 
scrub-jay habitat as fire exclusion slowly results in vegetative 
overgrowth. Thus, over the long-term, scrub-jays within the City of 
Palm Bay are unlikely to persist, and conservation efforts for this 
species should target acquisition and management of large parcels of 
land outside the direct influence of urbanization.
    Construction of the Project's infrastructure and facilities will 
result in harm to scrub-jays, incidental to the carrying out of these 
otherwise lawful activities. Habitat alteration associated with the 
proposed residential construction will reduce the availability of 
foraging and sheltering habitat and potential nesting habitat for one 
family of scrub-jays.
    Section 9 of the Act, and implementing regulations, prohibits 
taking the Florida scrub-jay. Taking, in part, is defined as an 
activity that kills, injures, harms, or harasses a listed endangered or 
threatened species. Section 10(a)(1)(B) of the Act provides an 
exemption, under certain circumstances, to the Section 9 prohibition if 
the taking is incidental to, and not the purpose of otherwise lawful 
    The Applicants do not propose to implement on-site minimization 
measures to reduce take of scrub-jays. All three lots, in combination, 
encompass about 0.66 acre and the footprint of the home, infrastructure 
and landscaping preclude retention of scrub-jay habitat. On-site 
minimization may not be a biologically viable alternative due to 
increasing negative demographic effects caused by urbanization.
    The Applicant proposes to mitigate for the loss of 0.66 acres of 
scrub-jay habitat by contributing $8,844 to the Florida Scrub-jay 
Conservation Fund administered by the National Fish and Wildlife 
Foundation. Funds in this account are ear-marked for use in the 
conservation and recovery of scrub-jays and may include habitat 
acquisition, restoration, and/or management.
    As earlier stated, the Service has determined that the Plan 
qualifies as a ``low-effect'' HCP as defined by the Service's Habitat 
Conservation Planning

[[Page 15360]]

Handbook (November 1996). Low-effect HCPs are those involving: (1) 
Minor or negligible effects on federally listed and candidate species 
and their habitats, and (2) minor or negligible effects on other 
environmental values or resources. The Applicant's HCP qualifies for 
the following reasons:
    1. Approval of the HCP would result in minor or negligible effects 
on the Florida scrub-jay population as a whole. The Service does not 
anticipate a significant reduction in population numbers as a result of 
the construction project.
    2. Approval of the HCP would not have adverse effects on known 
unique geographic, historic or cultural sites, or involve unique or 
unknown environmental risks.
    3. Approval of the HCP would not result in any significant adverse 
effects on public health or safety.
    4. The project does not require compliance with Executive Order 
11988 (Floodplain Management), Executive Order 11990 (Protection of 
Wetlands), or the Fish and Wildlife Coordination Act, nor does it 
threaten to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.
    5. Approval of the Plan would not establish a precedent for future 
action or represent a decision in principle about future actions with 
potentially significant environmental effects.
    The Service has therefore determined that issuance of an ITP to the 
Applicant qualifies as a categorical exclusion under the NEPA, as 
provided by the Department of the Interior Manual (516 DM 2, Appendix 1 
and 516 DM 6, Appendix 1). No further NEPA documentation will therefore 
be prepared.
    The Service will evaluate the HCP and comments submitted thereon to 
determine whether the application meets the requirements of section 
10(a) of the Act. If it is determined that those requirements are met, 
an ITP will be issued for the incidental take of the Florida scrub-jay. 
The Service will also evaluate whether the issuance of a Section 
10(a)(1)(B) ITP complies with Section 7 of the Act by conducting an 
intra-Service Section 7 consultation. The results of the consultation, 
in combination with the above findings, will be used in the final 
analysis to determine whether or not to issue the ITP; the final 
decision will be made no sooner than 30 days from the date of this 

    Dated: March 11, 2004.
J. Mitch King,
Acting Regional Director.
[FR Doc. 04-6666 Filed 3-24-04; 8:45 am]