[Federal Register: June 13, 2006 (Volume 71, Number 113)]
[Page 34156-34158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Receipt of Application for Formal Modification of Issued 
Incidental Take Permit (ITP); Availability of an Environmental 
Assessment (EA); Baldwin County, AL

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: We, the Fish and Wildlife Service (Service), announce the 
availability of an EA and Habitat Conservation Plan (HCP)/Application 
for amendment to an issued incidental take permit. D & E Investments 
(permittee) requests an amendment to its ITP Number PRT-787172, which 
was issued in 1994 under the Endangered Species Act of 1973, as amended 
(Act), for the take of the Alabama beach mouse (Peromyscus polionotus 
ammobates) (ABM). The proposed take would be incidental to otherwise 
lawful activities, including the construction, occupancy, use, 
operation, and maintenance of a residential condominium at Kiva Dunes 
on the Fort Morgan Peninsula, in Baldwin County, Alabama.

DATES: We must receive your written comments on the ITP amendment 
application, modified HCP, and EA on or before July 13, 2006.

ADDRESSES: You may obtain hard or electronic copies of the application, 
HCP, and EA by sending a letter to the Service's Southeast Regional 
Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 
(Attn: HCP Coordinator), or to the Service's Ecological Services Field 
Office, 1208-B Main Street, Daphne, Alabama 36526, or by sending an e-
mail to Aaron_Valenta@fws.gov. Submit your written data or comments 
concerning the proposed amendment and/or the documents by mail to the 
Regional Office, by e-mail to Aaron_Valenta@fws.gov, or by hand-
delivery to either Service office. For more about how to request 
documents or submit comments, see ``Public Comments Solicited'' under 

FOR FURTHER INFORMATION CONTACT: Mr. Aaron Valenta, Regional Permit 
Coordinator (see ADDRESSES), telephone: (404) 679-4144; or Acting Field 
Supervisor, Daphne Field Office (see ADDRESSES), telephone: (251) 441-

SUPPLEMENTARY INFORMATION: We announce the availability of an EA and 
HCP/Application for amendment to an issued incidental take permit. The 
permittee requests an amendment to ITP Number PRT-787172, which was 
issued on April 29, 1994, under section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), for the 
take of the ABM. The proposed take would be incidental to otherwise 
lawful activities, including the construction, occupancy, use, 
operation, and maintenance of a residential condominium at Kiva Dunes 
on the Fort Morgan Peninsula, in Baldwin County, Alabama.
    The amendment would allow the permittee to build a 12-story 
condominium with eight units per floor on four beachfront lots, instead 
of the four single-family residences, yet unbuilt, that we originally 
approved the permittee to build. The proposed action would involve 
approval of the modified HCP developed by the permittee, as required by 
section 10(a)(2)(B) of the Act, to minimize and mitigate for incidental 
take of the ABM, the threatened green sea turtle (Chelonia mydas), the 
threatened loggerhead sea turtle (Caretta caretta), and the endangered 
Kemp's ridley sea turtle (Lepidochelys kempi). A detailed description 
of the mitigation and minimization measures to address the effects of 
the project to the ABM and sea turtles is provided in the permittee's 
HCP and also in our EA.

Public Comments Solicited

    We specifically request information, views, and opinions from the 
public via this notice, including the identification of any other 
aspects of the human environment not already identified in the EA. 
Further, we specifically solicit information regarding the adequacy of 
the HCP as measured against our ITP issuance criteria found in 50 CFR 
parts 13 and 17.
    If you wish to comment, you may submit comments by any one of 
several methods (see ADDRESSES). If you contact us via e-mail, please 
include your name and return mailing address in your e-mail message. If 
you do not receive a confirmation from us that we have received your e-
mail message, contact us directly by telephone (see FOR FURTHER 
    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 ABM is one of eight subspecies of the old field mouse 
restricted to coastal dunes. We estimate that ABM historically occupied 
approximately 45 kilometers (28 miles) of shoreline. Monitoring 
(trapping and field observations) of the ABM population on other 
private lands that hold, or are under review for, an ITP during the 
last five years indicates that the Fort Morgan Peninsula remains 
occupied (more or less continuously) by ABM along its primary and 
secondary dunes, as well as the escarpment and suitable interior 
    The permittee owns approximately 252 acres of land south of Alabama 
Highway 180 on the Fort Morgan Peninsula. The site is approximately 
12.5 miles west of the intersection of Highway 180 with Alabama Highway 
59 in Gulf Shores, Baldwin County, Alabama. On May 3, 1994, the Service 
issued ITP number PRT-787172, authorizing the take of ABM incidental to 
construction and occupancy of the Kiva Dunes development. The single 
project includes a golf course, and both multi-family and single-family 
residential areas located north of currently designated critical 
habitat. The ITP did not establish a maximum number of units to be 
developed as part of the project. The site development plan 
incorporated in the original HCP anticipated the construction and 
occupancy of 531 residential units within the 91 acres designated for

[[Page 34157]]

residential development, which was in accordance with the then-current 
Baldwin County zoning for the site. The original site development plan 
was to consist of 30 single-family home sites abutting critical 
habitat, known at that time to be occupied by the ABM, and 60 single-
family home sites in other areas of the property, and multi-family 
development in the interior portions of the property. The ITP took into 
consideration the impacts of the permittee's project as described in 
the original development plans, and, authorized construction of two 
dune walkovers within ABM Critical Habitat. A subsequent modification 
of the ITP issued by the Service on December 12, 1997, authorized the 
construction and maintenance of an additional 16 dune walkovers within 
critical habitat to allow individual homeowners to access the beach 
portions of their property without impacting the dune system by 
pedestrian traffic.
    The ITP imposes numerous conditions to ensure appropriate 
avoidance, minimization, and mitigation of adverse impacts to ABM on 
the property as a result of project development. Among its major 
conservation measures, the ITP reduces the impacts from the 
construction on lots abutting critical habitat (Lots 1B through 30B), 
including the home site footprint, driveway, patio, deck, landscaping, 
and foundation plantings, by limiting construction to 45 percent of the 
area lying between the east-west roadway (Kiva Way) and the Critical 
Habitat line. As a result, 55 percent of the area lying between Kiva 
Way and the Critical Habitat line must be permanently preserved. In 
addition, the ITP includes written criteria and specifications for 
implementing the conservation provisions of the HCP, including measures 
for long-term protection, management, and enhancement of dedicated ABM 
habitat to the maximum extent practicable. Golf course construction was 
completed in 1995 and utilities have been installed. South of Kiva Way, 
construction has been completed on six homes and initiated on three 
additional homes. North of Kiva Way, 45 homes have been completed or 
are under construction.
    The permittee seeks to replat four undeveloped single-family home 
sites south of Kiva Way (Lots 27, 28, 29, and 30) on the east side of 
the property. In lieu of building single-family units on these lots as 
originally planned, the permittee proposes to build a 12-story 
condominium with eight units per floor, with a parking deck and other 
amenities. Zoning for the condominium building has been approved by the 
Baldwin County Commission.
    Under the proposed site development plan modification, the 
condominium building and associated amenities, including landscaping 
and lighting, would occupy a total combined area of 1.24 acres of the 
total 2.75 acres on Lots 27-30. All of the proposed construction 
activity would occur within 45 percent of the area on these lots that 
is already authorized to be developed under the ITP. Other 
modifications proposed by the permittee include the use of lighting 
restrictions on the condominium building and a reduction in the number 
of dune walkovers, from four for the original four lots, to two total 
for the proposed condominium building. The total occupancy of the 
overall Kiva Dunes project would be approximately 21 percent less than 
that contemplated under the original site development plan authorized 
under the ITP and HCP.
    The Service's EA considers the effect of the project on nesting sea 
turtles as well as ABM. The green sea turtle has a circumglobal 
distribution and is found in tropical and subtropical waters. The 
Florida population of this species is federally listed as endangered; 
elsewhere the species is listed as threatened. Primary nesting beaches 
in the southeastern United States occur in a six-county area of east-
central and southeastern Florida, where nesting activity ranges from 
approximately 350 to 2,300 nests annually. Our turtle nesting surveys 
of the Fort Morgan Peninsula, from Laguna Key west to Mobile Point, 
from 1994 to 2005, have not confirmed any green turtle nests, though 
some crawls were suspected in 1999 and 2000.
    The loggerhead turtle is listed as a threatened species throughout 
its range. This species is circumglobal, preferring temperate and 
tropical waters. In the southeastern United States, 50,000 to 70,000 
nests occur annually, about 90 percent of which occur in Florida. Most 
nesting in the Gulf outside of Florida appears to be in the Chandeleur 
Islands of Louisiana; Ship, Horn and Petit Bois Islands in Mississippi; 
and the Gulf-fronting sand beaches of Alabama. For the past six years, 
our nesting surveys of the Fort Morgan Peninsula, from Laguna Key to 
Mobile Point, have confirmed that loggerheads continually nest within 
the area. In 2004, we documented 53 nests; however, Hurricane Ivan 
destroyed the majority of those nests prior to hatchling emergence.
    The Kemp's ridley sea turtle is an endangered species throughout 
its range. Adults are found mainly in the Gulf of Mexico. Immature 
turtles can be found along the Atlantic coast as far north as 
Massachusetts and Canada. The species' historic range includes tropical 
and temperate seas in the Atlantic Basin and within the Gulf of Mexico. 
Nesting occurs primarily in Tamaulipas, Mexico, but occasionally 
nesting activities have been documented in Texas and other Southern 
States, including an occasional nest in North Carolina. In 1999, a 
Kemp's ridley sea turtle nested on Bon Secour National Wildlife Refuge, 
which is approximately two miles west of the Kiva Dunes site.
    The EA considers the effects of two project alternatives: (1) A no-
action alternative that would not change the original ITP; and (2) an 
amendment to the ITP that would authorize the construction of a 12-
story condominium on the lots currently permitted for four single 
residences. The difference between the two alternatives relates to the 
number of residents that would occupy the four Gulf-front lots (numbers 
27 through 30). The amount of undisturbed habitat remaining on the site 
after construction has been completed would be the same.
    Alternative 2, the construction of the condominium building, would 
cause the permanent loss of 45 percent of the habitat north of Critical 
Habitat for the four lots, or 1.24 acres. The area would include all 
construction and improvements, including amenities, parking, lighting, 
and landscaping. However, all of these impacts would occur within the 
footprint of the development authorized by the original ITP. Therefore, 
as is the case with Alternative 1, the direct habitat loss that would 
result from the implementation of this alternative would not exceed 
that currently permitted.
    The overall density of the project would be less than originally 
planned under the County's zoning density authorization. The previously 
issued ITP included the entire Kiva Dunes development. Although the 
number of occupants on the four single-family home sites within the 
permitted area would increase with the placement of the condominium 
building, the total occupancy within the overall development would be 
decreased from that contemplated and approved under the original ITP. 
As originally proposed, the site development plan for the Kiva Dunes 
project had 531 units. Under the proposed site development plan 
modification, there would be 420 units. This represents a decrease of 
111 units from that authorized by the ITP, or 21 percent fewer 
individuals utilizing the permitted area based on the Service's 
calculation of four persons per unit during peak season. Therefore, the

[[Page 34158]]

preferred alternative would result in the reduction of overall 
residential density within the permit area.
    All avoidance, minimization, and mitigation measures for ABM 
protection provided in the ITP (as described in Alternative 1) would be 
maintained under this alternative. In addition, the permittee proposes 
other modifications to the current amended HCP that would reduce 
habitat impacts for ABM, as well as additional measures to protect sea 
turtles. The permittee would evaluate the escarpment prior to 
construction and retain the greatest amount of escarpment possible in 
the construction of the condominium building. The number of dune 
walkovers would be reduced from four to two. One of the two remaining 
dune walkovers would have to be larger than originally proposed under 
the Amendment to the ITP, based on more recent communication from the 
Fort Morgan Volunteer Fire Department requesting that additional beach 
access be provided for life safety issues. The impacts of the dune 
walkovers on critical habitat would be reduced from approximately 8000 
square feet to approximately 5000 square feet. Lighting restrictions 
and other measures required by the Service would also be incorporated 
to address protected species that were not included in the original 

    Authority: This notice is provided pursuant to section 10 of the 
Act and National Environmental Policy Act regulations at 40 CFR 

    Dated: May 24, 2006.
Cynthia K. Dohner,
Acting Regional Director.
 [FR Doc. E6-9170 Filed 6-12-06; 8:45 am]