[Federal Register: June 19, 2001 (Volume 66, Number 118)]
[Page 32959-32960]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish And Wildlife Service

Notice of Availability of a Finding of No Significant Impact/
Habitat Conservation Plan for Issuance of an Incidental Take Permit for 
the Gunston Manor Subdivision, Block 40, Lots 11-17, Single-Family Home 
Construction, Mason Neck, Fairfax County, Virginia

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: The Applicant has submitted three incomplete Habitat 
Conservation Plan (HCP) permit applications pursuant to section 
10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (Act). These permits were not processed because 
the applications did not meet either the statutory application criteria 
or the statutory issuance criteria.
    The applicant initiated litigation over this project arguing that 
the Service has unconstitutionally ``taken'' his property without just 
compensation. The Service has taken the position that an acceptable 
plan could be produced and that a permit could be issued if an 
acceptable plan were submitted, but has decided that it is more 
efficient to draft a compliant HCP and issue the permit than to 
continue to litigate. This draft HCP is offered as part of his ITP 
application. The draft Finding of No Significant Impact (FONSI)/HCP 
made available by this notice were prepared by the Service based on 
information previously provided by the Applicant and other information 
acquired by the Service. The Applicant has been assigned permit number 
TE041642-0. The permit, which is for a period of 30 years upon 
approval, would authorize the incidental take of the threatened bald 
eagle (Haliateetus leucocephalus). The proposed take would occur as a 
result of the construction and occupancy of a single-family home in 
Fairfax County, Virginia.
    The Service has prepared the FONSI/HCP for the incidental take 
permit (ITP) application. This notice is provided pursuant to section 
10(c) of the Act and National Environmental Policy Act regulations (40 
CFR 1506.6).

[[Page 32960]]

DATES: Written comments on this draft FONSI/HCP should be received on 
or before July 19, 2001.

ADDRESSES: Persons wishing to review the FONSI/HCP may obtain a copy by 
written or telephone request to John Wolflin, U.S. Fish and Wildlife 
Service, 177 Admiral Cochrane Drive, Annapolis, MD 21401 (410-573-
4500). Documents will be available for public inspection by written 
request or by appointment only during normal business hours (8:00 to 
4:30) at the U.S. Fish and Wildlife Service, Annapolis, MD. Data or 
comments concerning the FONSI/HCP should be submitted in writing to the 
Project Leader, U.S. Fish and Wildlife Service Office, Annapolis, MD at 
the above address. Please refer to permit number TE041642-0 when 
submitting comments.

FOR FURTHER INFORMATION CONTACT: John Wolflin at the above U.S. Fish 
and Wildlife Service Office, Annapolis, MD.



    Section 9 of the Act prohibits the ``taking'' of endangered and 
threatened species such as the bald eagle. However, the Service, under 
limited circumstances, may issue permits to take endangered or 
threatened wildlife species where the taking is incidental to, and not 
the purpose of, an otherwise lawful activity. Regulations governing 
permits for endangered species are at 50 CFR 17.22.
    Applicant: Mr. John Taylor plans to construct and sell a single-
family home in an existing subdivision. After the initial judicial 
determination that the Service had effectively denied the inadequate 
applications submitted by the applicant, the Service has developed the 
draft FONSI/HCP that meets the statutory application and issuance 
criteria required for the issuance of this permit. Five alternatives 
were developed.
    Alternative 1, The No Action Alternative. Under this Alternative, 
the lot would remain in its existing naturally wooded condition. Since 
the lot would not be cleared for the construction of a single family 
home, this alternative would avoid all take of bald eagles and no ITP 
permit would be necessary. However, the stated purpose of acquiring the 
land by the applicant was to build a house and sell the lot. Therefore, 
this alternative would not satisfy the needs and purpose of the 
proposed project and was rejected.
    Under Alternative 2, the Proposed Action. The Service would issue a 
section 10(a)(1)(B) ITP for the take of bald eagles resulting from 
clearing, construction, and occupancy of the house. The proposed HCP 
includes implementation of a time of year restriction on development 
activities, measures to minimize impacts to on-site bald eagle habitat, 
protection of forested buffers on-site, and in addition to the 
minimization measures, a private conservation organization will 
provide/insure funding for off-site artificial nest construction to 
mitigate for the possible abandonment of the nest by the resident 
nesting eagles.
    Alternative 3 is the Alternate Development Configuration 
Alternative. If the local zoning authority does not issue the variances 
to the extent envisioned by this HCP, it might require that the house 
be placed further back on the lot thus reducing the amount of a front 
lot setback variance, or moving the house further forward, or turning 
the house at 90 degrees to comply with side lot setbacks. The Service 
will need to re-analyze the specific impacts on the bald eagles 
anticipated from the site plan as approved and determine whether or not 
it could still address the standards of minimization of impacts to the 
maximum extent practicable under this alternative.
    Alternative 4 is the Increased Impact Alternative. The applicant 
initially proposed placing a Mod-u-Kraf modular home comprising 1560 
square feet on the site which would have entailed cutting the majority 
of the trees on the site and maintaining little or no vegetative buffer 
on the property. The applicant's initial and October, 1998 HCP's 
provided no specific site plan detailing the exact configuration he 
envisioned, no analysis of the impacts anticipated from development 
within 250 feet of the nest tree, and no specific mitigation or 
minimization proposals other than construction outside of the nesting 
season. Therefore, the Service determined that these requests for an 
HCP were incomplete and could not meet the issuance criteria of section 
10(a)(2)(A) of the Act. The Service has developed Alternative 2 in 
order to fulfill the goal of constructing a house of at least 1560 
square feet which would also minimize the impacts of normal human 
occupancy activities on the site which likely would disturb, harm or 
harass the bald eagles.
    Alternative 5 is the Conservation Acquisition Alternative under 
which the site would be acquired by a government, private association, 
or lands trust organization to be retained in its natural condition. 
Although the project site is located within \1/2\ mile of the Mason 
Neck National Wildlife Refuge and county and state parks, the parcel is 
an isolated block that is less than \1/2\ acre of habitat within a 
residential community, and therefore has not been considered a priority 
for acquisition by various public or private land protection programs 
or organizations or the Service's National Wildlife Refuge System.

Public Comments Solicited

    The Service solicits written comments on the draft FONSI/HCP 
described. All comments received by the date specified above will be 
considered prior to approval of the FONSI/HCP.


    The authority for this action is section 10(a)(1)(B) of the 
Endangered Species Act, 16 U.S.C. 1539(a)(B).

    Dated: May 1, 2001.
Richard O. Bennett,
Acting Regional Director.
[FR Doc. 01-15390 Filed 6-18-01; 8:45 am]