[Federal Register: January 12, 2005 (Volume 70, Number 8)]
[Page 2184-2186]
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: Deleta Earle (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 0.23 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 0.23 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 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 February 11, 2005.

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 TE090970-0 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, 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, 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 
TE090970-0 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 FURTHER INFORMATION). 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 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 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.
    The applicant's residential construction will take place within 
Section 5, Township 29 South, Range 37 East, Palm Bay, Brevard County, 
Florida. Lot 21, Block 340, Port Malabar Unit 9, is within 438 feet of 
locations where scrub-jays were sighted during surveys for this species 
from 1999 to 2002. Scrub-jays using the subject residential lot 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

[[Page 2185]]

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 parcel was within occupied scrub-
jay habitat, we calculated the maximum average ``shift'' in territory 
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 Applicant's residential lot falls within the 438-foot buffer 
established for known scrub-jay territories and/or point data. The lot 
provides habitat for foraging, sheltering, and possibly nesting. 
Accordingly, loss of this habitat due to residential construction will 
result in the destruction of scrub-jay habitat.
    The Applicant agrees 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 
lot encompasses about 0.23 acre and the footprint of the home, 
infrastructure, and landscaping preclude retention of scrub-jay 
habitat. On-site minimization is not considered to be a biologically 
viable alternative due to increasing negative demographic effects 
caused by urbanization.
    The Applicant proposes to mitigate for the loss of 0.23 acre of 
scrub-jay habitat by contributing $3,082 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 $3,082 is sufficient 
to acquire and perpetually manage 0.46 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.
    The Service has 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 environmental assessment or environmental 
impact statement. This preliminary determination 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 as a low-effect plan 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 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.
    The Service has 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.
    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, 
the ITP will be issued for the incidental take of the Florida scrub-
jay. The Service 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.

[[Page 2186]]

    Dated: December 23, 2004.
Cynthia K. Dohner,
Acting Regional Director, Southeast Region.
[FR Doc. 05-611 Filed 1-11-05; 8:45 am]