[Federal Register: April 28, 2005 (Volume 70, Number 81)]


[Page 22059-22061]

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: Dorothy V. Jacobs and Paul A. Jacobs (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 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 

the City of Palm Bay, 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 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 Applicants' 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 May 31, 2005.

ADDRESSES: Persons wishing to review the application and HCP may obtain 

a copy by writing the Service's Southeast

[[Page 22060]]

Regional Office, Atlanta, Georgia. Please reference permit number 

TE089995-0 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.


Coordinator, (see ADDRESSES above), telephone: 404/679-7313, facsimile: 

404/679-7081; or Mr. Michael Jennings, Fish and Wildlife Biologist, 

Jacksonville Field Office, Jacksonville, Florida (see ADDRESSES above), 

telephone: 904/232-2580, ext. 113.

SUPPLEMENTARY INFORMATION: If you wish to comment, you may submit 

comments by any one of several methods. Please reference permit number 

TE089995-0 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 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 Applicants' residential construction will take place within 

section 5, Township 29 South, Range 37 East, Palm Bay, Brevard County, 

Florida on Lot 31, Block 316, Port Malabar Unit 9. Lot 31 is within 438 

feet of locations where scrub-jays were sighted during 2001-2002 

surveys for this species. 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 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 Applicants' parcel was 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 Applicants' residential lot falls within the 438-foot buffer 

established for known scrub-jay territories and/or point data. Although 

the Applicants' 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 propose 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 0.23-acre lot will utilize all the available land 

area. On-site minimization may not be a biologically viable alternative 

due to increasing negative demographic effects caused by urbanization.

[[Page 22061]]

    The Applicants propose 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.

    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 

Applicants' 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. 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 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: April 7, 2005.

Jacquelyn B. Parrish,

Acting Regional Director, Southeast Region.

[FR Doc. 05-8501 Filed 4-27-05; 8:45 am]