[Federal Register: March 25, 2004 (Volume 69, Number 58)]
[Page 15360-15362]
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 of a Single-Family Home in the City of Palm Bay, Brevard 
County, FL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Mr. and Mrs. James Elliott and Mr. and Mrs. Jose Gracia 
(Applicants) request an incidental take permit (ITP) pursuant to 
section 10(a)(1)(B) of the Endangered Species Act of 1973 (U.S.C. 1531 
et seq.), as amended (Act). The Applicants anticipate taking about one-
half acre of Florida scrub-jay (Aphelocoma coerulescens) (scrub-jay) 
foraging habitat, incidental to lot preparation for the construction of 
a single-family home and supporting infrastructure in the City of Palm 
Bay, Brevard County, Florida (Project). The destruction of one-half 
acre of foraging habitat is expected to result in the take of one 
family of scrub-jays.
    The Applicants' 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, 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 ITP application 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 TE070785-0 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. Mike Jennings, Fish and Wildlife Biologist, 
Jacksonville Field Office, Jacksonville, Florida (see ADDRESSES above), 
telephone: 904/232-2580.

SUPPLEMENTARY INFORMATION: If you wish to comment, you may submit 
comments by any one of several methods. Please reference permit number 
TE070785-0 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

[[Page 15361]]

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 species 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 have resulted in habitat 
loss and fragmentation which has 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.
    Residential construction will take place within section 5, Township 
29 South, Range 37 East, Palm Bay, Brevard County, Florida, on lots 7 
and 8 of Block 329, Port Malabar Unit 9. Lots 7 and 8 are within 438 
feet of locations where scrub-jays were sighted during 2001-2002 
surveys for this species. 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.
    The subject residential parcel lies within a ``high density'' urban 
setting, and the corresponding territory size of the resident scrub-
jays has been estimated to range from 5.2 to 10.8 acres based on 
average territory sizes of scrub-jay in other urban areas. Data 
collected from 12 scrub-jay families within the city limits of Palm Bay 
during the 2000 and 2001 nesting seasons provided information about 
survival and reproductive success of scrub-jays, but did not attempt to 
estimate territory sizes. This information indicated that territory 
boundaries tended to shift from year to year, making calculations of 
territory size difficult. Similarly, point data do not reliably 
indicate occupied habitat over time since birds in urban settings tend 
to move within and between years. Thus, using known territory 
boundaries and point data to delineate occupied habitat likely 
underestimates areas occupied by scrub-jays.
    To assess whether the Applicant's parcels were within occupied 
scrub-jay habitat, we calculated the maximum average ``shift'' in 
territories locations between 2000 and 2001. Based on these estimates, 
we calculated a maximum average shift of 438 feet between years. We 
subsequently used the 438 feet as a buffer to surround known territory 
boundaries and point locations for scrub-jays. We reasoned that 438 
feet represented a biologically-based buffer, within which scrub-jays 
were likely to occur. Application of the 438 buffer to known 
territories and point locations provides a quantitative method to 
delineate occupied scrub-jay habitat in highly urbanized areas within 
the city limits of Palm Bay.
    The Applicant's residential lots fall within the 438 buffer 
established for known scrub-jay territories and/or point data. Although 
the applicant's property lacks substantial woody vegetation typically 
required for scrub-jay nesting and sheltering habitat, it does provide 
suitable foraging habitat. Accordingly, loss of this habitat due to 
residential construction will result in the destruction of scrub-jay 
foraging habitat.
    The Applicants do not propose to implement on-site minimization 
measures to reduce take of scrub-jays. Both lots, in combination, 
encompass about 0.5 acres 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 Applicants propose to mitigate for the loss of 0.5 acres of 
scrub-jay habitat by contributing $6,700 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. The $6,700 is sufficient 
to acquire and perpetually manage 1.0 acres of 
suitable occupied scrub-jay habitat based on a replacement ratio of two 
mitigation acres per one impact acre. The cost is based on previous 
acquisitions of mitigation lands in southern Brevard County at an 
average $5,700 per acre, plus a $1,000 per acre management endowment 
necessary to ensure future management of acquired scrub-jay habitat.
    As stated above, we have determined that the HCP is a low-effect 
plan that is categorically excluded from further NEPA analysis, and 
does not require the preparation of an EA or EIS. This preliminary 
information may be revised due to public comment received in response 
to this notice. Low-effect HCPs are those involving: (1) Minor or 
negligible effects on federally listed or 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 
    1. Approval of the HCP would result in minor or negligible effects 
on the Florida scrub-jay population as a whole. We do not anticipate 
significant direct or cumulative effects to the Florida scrub-jay 
population 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

[[Page 15362]]

future actions with potentially significant environmental effects.

    We have determined that approval of the Plan 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). 
Therefore, no further NEPA documentation will be prepared.
    We 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, 
the ITP will be issued for the incidental take of the Florida scrub-
jay. We will also evaluate whether issuance of the section 10(a)(1)(B) 
ITP complies with section 7 of the Act by conducting an intra-Service 
section 7 consultation. The results of this consultation, in 
combination with the above findings, will be used in the final analysis 
to determine whether or not to issue the ITP.

    Dated: March 11, 2004.
J. Mitch King,
Acting Regional Director.
[FR Doc. 04-6667 Filed 3-24-04; 8:45 am]