[Federal Register: September 7, 2005 (Volume 70, Number 172)]
[Page 53243-53245]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Receipt of Four Applications for Incidental Take Permits for 
Construction of Single-Family Homes in Brevard County, FL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Eugene T. Butler, Carlos E. Gauthier, Robert Moren, and Kheino 
A. Phidd (Applicants) individually 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 a combined total of about 1.03 acres of Florida scrub-jay 
(Aphelocoma coerulescens) (scrub-jay) foraging, sheltering, and 
possibly nesting habitat incidental to lot preparation for the 
construction of single-family homes and supporting infrastructure in 
Brevard County, Florida (Projects). Requested permit duration is one 
year for all applicants, except for Moren, who requests a 10-year 
permit term. The destruction of 1.03 acre of foraging, sheltering, and 
possibly nesting habitat is expected to result in the take of three 
families of scrub-jays.
    Each of the Applicants' Habitat Conservation Plans (HCPs) describe 
the mitigation and minimization measures proposed to address the 
effects of the proposed Project to the Florida scrub-jay. These 
measures are outlined in the SUPPLEMENTARY INFORMATION section below. 
We have determined that each 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 HCPs. Therefore, the ITPs are ``low-effect'' projects and 
qualify as categorical exclusions under the National Environmental 
Policy Act (NEPA), as provided by the Department of Interior Manual 
(516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). We announce the 
availability of the HCPs for the incidental take applications. Copies 
of the HCPs 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 1506.6).

DATES: Written comments on the ITP applications and HCPs should be sent 
to the Service's Regional Office (see ADDRESSES) and should be received 
on or before October 7, 2005.

ADDRESSES: Persons wishing to review the applications and HCPs may 
obtain a copy by writing the Service's Southeast Regional Office, 
Atlanta, Georgia. Please reference permit number TE099682-0, for 
Butler, number TE099683-0, for Gauthier, number TE099684-0, for Moren, 
and number TE099685-0, for Phidd, 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 Ms. Paula Sisson, General Biologist, Jacksonville 
Field Office, Jacksonville, Florida (see ADDRESSES above), telephone: 
904/232-2580, ext. 126.

SUPPLEMENTARY INFORMATION: If you wish to comment, you may submit 
comments by any one of several methods. Please reference permit number 
TE099682-0, for Butler, number TE099683-0, for Gauthier, number 
TE099684-0, for Moren, and number TE099685-0, for Phidd, in such 
comments. You may mail comments to the Service's Regional Office (see 
ADDRESSES). You may also comment via the Internet to http://www.david_dell@fws.gov">
http://www.david_dell@fws.gov. Please submit comments over the internet as an ASCII 
lease 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

[[Page 53244]]

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 
    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.
    Proposed residential construction for Eugene T. Butler would take 
place within Section 5, Township 29 South, Range 37 East, Palm Bay, 
Brevard County, Florida on Lot 48, Block 337. Proposed residential 
construction for Carlos E. Gauthier would take place within Section 16, 
Township 29 South, Range 37 East, Palm Bay, Brevard County, Florida on 
Lot 21, Block 790. Proposed residential construction for Robert Moren 
would take place within Section 5, Township 29 South, Range 37 East, 
Palm Bay, Florida on Lot 15, Block 341. Proposed residential 
construction for Kheino A. Phidd would take place within Section 8, 
Township 29 South, Range 37 East, Palm Bay, Brevard County, Florida on 
Lot 13, Block 434. Each of these lots is within 438 feet of locations 
where scrub-jays were sighted during surveys for this species from 
    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 southern 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 suppression 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 parcels lie 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 Applicants' 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-foot 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 four Applicants' residential lots fall within the 438-foot 
buffer established for known scrub-jay territories and/or point data. 
The Applicants' properties provide habitat for foraging, sheltering, 
and possibly nesting. Accordingly, loss of this habitat due to 
residential construction will result in the destruction of scrub-jay 
    The Applicants agree to avoid construction during the nesting 
season if active nests are found onsite, but no other on-site 
minimization measures are proposed to reduce take of scrub-jays. The 
lots combined encompass about 1.03 acres and the footprint of the 
homes, infrastructure, and landscaping preclude retention of scrub-jay 
habitat. On-site minimization is not expected to be a biologically 
viable alternative due to increasing negative demographic effects 
caused by urbanization.
    In combination, the Applicants propose to mitigate for the loss of 
1.03 acres of scrub-jay habitat by contributing a total of $11,187 
($2,785 for Butler, $2,440 for Gauthier, $3,290 for Moren, and $2,672 
for Phidd) 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 
$11,187 is sufficient to acquire and perpetually manage about 2.06 
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

[[Page 53245]]

ensure future management of acquired scrub-jay habitat.
    We have determined that the HCPs are low-effect plans that are 
categorically excluded from further NEPA analysis, and do 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. Each 
of the Applicants' HCPs 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. We do not anticipate 
significant direct or cumulative effects to the Florida scrub-jay 
population as a result of the construction projects.
    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.
    We have determined that issuance of each of these incidental take 
permits qualify 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 
    We will evaluate the HCPs and comments submitted thereon to 
determine whether the applications meet the requirements of section 
10(a) of the Act. If it is determined that those requirements are met, 
the ITPs 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) 
ITPs comply 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 ITPs.

    Dated: August 4, 2005.
Cynthia K. Dohner,
Acting Regional Director.
[FR Doc. 05-17676 Filed 9-6-05; 8:45 am]