[Federal Register: February 15, 2005 (Volume 70, Number 30)]
[Page 7755-7756]
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 Brevard County, FL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Steven J. Therrien (Applicant) requests 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 Applicant 
anticipates taking about 0.24 acre of Florida scrub-jay (Aphelocoma 
coerulescens) (scrub-jay) foraging, sheltering, and possibly nesting 
habitat incidental to lot preparation for the construction of a single-
family home and supporting infrastructure in Brevard County, Florida 
(Project). The destruction of 0.24 acre of foraging, sheltering, and 
possibly nesting habitat is expected to result in the take of one 
family of scrub-jays.
    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, the 
ITP is a ``low-effect'' project and qualifies as a categorical 
exclusion 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 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 March 17, 2005.

ADDRESSES: Persons wishing to review the application and HCP may obtain 
a copy by writing the Service's Southeast Regional Office at the 
address below. Please reference permit number TE093117-0 in such 
requests. Documents will also be available for public inspection by 
appointment during normal business hours at the U.S. Fish and Wildlife 
Service, Southeast Regional Office, 1875 Century Boulevard, Suite 200, 
Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or U.S. Fish 
and Wildlife Service, Jacksonville Field Office, 6620 Southpoint Drive 
South, Suite 310, Jacksonville, Florida 32216-0912 (Attn: Field 

Coordinator, Southeast Regional Office (see ADDRESSES above), 
telephone: 404/679-7313, facsimile: 404/679-7081; or Ms. Paula Sisson, 
Fish and Wildlife 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 
TE093117-0 in such comments. You may mail comments to the Service's 
Southeast 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 above (see FOR FURTHER 
INFORMATION CONTACT). Finally, you may hand-deliver comments to either 
Service office listed above (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 addresses 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 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 (mostly consisting of oak-dominated scrub). 
Increasing urban and agricultural development has 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

[[Page 7756]]

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 of scrub-jay habitat is largely degraded due to 
the interruption of the natural fire regime, which is needed to 
maintain xeric uplands in conditions suitable for scrub-jays.
    Residential construction is proposed on Lot 8, Block 59, Unit 3, in 
Section 23, Township 23 South, Range 35 East, City of Port St. John, 
Brevard County, Florida. Lot 8 is immediately adjacent to Lot 7, on 
which a scrub-jay was observed by Brevard County staff in 2001-2002, 
and it is also part of territory cluster polygons mapped in 1999 and 
2003. The project site is situated in the southern end of an area 
supporting a 47-family cluster of birds. 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 Port St. John are unlikely to persist in urban 
settings, 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 Applicant's single-family residence and 
infrastructure 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, sheltering, and possible nesting habitat for 
one family of scrub-jays. The Applicant proposes to conduct 
construction activities outside of the nesting season. Other on-site 
minimization measures are not practicable as the footprint of the home, 
infrastructure, and landscaping on the 0.24-acre lot will utilize all 
the available land area. Retention of scrub-jay habitat on site may not 
be a biologically viable alternative because of increasing negative 
demographic effects caused by urbanization.
    The Applicant proposes to mitigate for the loss of 0.24 acre of 
scrub-jay habitat by contributing $3,216 to the Florida Scrub-jay 
Conservation Fund administered by the National Fish and Wildlife 
Foundation. Funds in this account are earmarked for use in the 
conservation and recovery of scrub-jays and may include habitat 
acquisition, restoration, and/or management. The $3,216 is sufficient 
to acquire and perpetually manage 0.48 acre 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.
    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 based on 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 as a low-effect plan 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 future actions with 
potentially significant environmental effects.
    We have determined that approval of the Plan qualifies as a 
categorical exclusion under 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.
    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.

    Dated: January 26, 2005.
Sam Hamilton,
Regional Director, Southeast Region.
[FR Doc. 05-2885 Filed 2-14-05; 8:45 am]