[Federal Register: December 28, 2001 (Volume 66, Number 249)]
[Page 67290-67292]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Applications for Incidental Take Permits by Gulf Highlands LLC 
and Fort Morgan Paradise Joint Venture in Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; Reopening of public comment period.


    We, the U.S. Fish and Wildlife Service (Service), announce the 
availability of an Environmental Assessment and receipt of applications 
for incidental take permits for residential development in Alabama. We 
also provide notice that the public comment period for the proposal is 
reopened to allow all interested parties to submit written comments on 
the proposed incidental take permits. Comments previously submitted 
need not be resubmitted. The original public notice, 66 FR 54020-54022, 
opened the comment period from October 25 through December 10, 2001.
    Gulf Highlands LLC and Fort Morgan Paradise Joint Venture 
(Applicants) seek incidental take permits (ITP) from the Fish and 
Wildlife Service (Service) pursuant to section 10(a)(1)(B) of the 
Endangered Species Act of 1973, as amended (Act). The proposed take 
would be incidental to otherwise lawful activities, including 
construction of residential condominiums, commercial facilities, and 
recreational amenities on adjoining tracts of land owned by the 
Applicants. The proposed action would involve approval of the Habitat 
Conservation Plan (HCP) jointly developed by the Applicants, as 
required by section 10(a)(2)(B) of the Act, to minimize and mitigate 
for incidental take of the Federally-listed, endangered Alabama beach 
mouse (Peromyscus polionotus ammobates)(ABM), the endangered Kemp's 
ridley sea turtle (Lepidochelys kempii), the threatened green sea 
turtle (Chelonia mydas), and the threatened loggerhead sea turtle 
(Caretta caretta). The subject permits would authorize take of ABM and 
the three sea turtles along 2,844 linear feet of coastal dune habitat 
fronting the Gulf of Mexico in Baldwin County, Alabama. The Applicants' 
properties total 180.5 acres, but only 62 acres would be developed. 
Additionally, about 16 acres of platted road rights-of-way are 
encompassed by the project and bring the total area to 196.4 acres. A 
more 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 Applicants' HCP, the Service's Environmental Assessment 
(EA), and in the SUPPLEMENTARY INFORMATION section below.
    The Service announces the availability of an Environmental 
Assessment (EA) and Habitat Conservation Plan/Applications for 
Incidental Take. The permit applications incorporate the Applicants' 
HCP as the proposed action for evaluation in the Service's EA. Copies 
of the EA on compact disk and the HCP

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may be obtained by making a request to the Regional Office (see 
ADDRESSES). Requests must be in writing to be processed. This notice 
also advises the public that the Service has not made a preliminary 
determination of whether issuance of the ITPs would be a major Federal 
action significantly affecting the quality of the human environment 
within the meaning of section 102(2)(C) of the National Environmental 
Policy Act of 1969, as amended (NEPA). The Service must decide whether 
issuance of the proposed ITPs constitutes a major Federal action and 
whether to prepare a Finding of No Significant Impact based on the EA 
and public comment, or if preparation of an Environmental Impact 
Statement (EIS) is appropriate. The final determination will be made no 
sooner than the close of the comment period. This notice is provided 
pursuant to section 10 of the Act and NEPA regulations (40 CFR 1506.6).
    The Service specifically requests information, views, and opinions 
from the public via this Notice on the Federal action, including the 
identification of any other aspects of the human environment not 
already identified in the Service's EA. Further, the Service 
specifically solicits information regarding the adequacy of the HCP as 
measured against the Service's 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. Please reference permit numbers TE007985-0 and 
TE031307-0 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.
    Due to Court order, the Department of Interior has temporarily lost 
use of our internet capability, and likely will not regain it by the 
time this notice is published. We encourage the public to submit 
comments by mail or express courier, or to call (see FURTHER 
INFORMATION) to confirm whether our internet capability has been 
    If you do not receive a confirmation from the Service 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 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 

DATES: The original comment period closed December 10, 2001. The 
comment period is hereby reopened through January 4, 2002. Written 
comments on the ITP application, EA, and HCP should be sent to the 
Service's Regional Office (see ADDRESSES).

ADDRESSES: Persons wishing to review the application, HCP, and EA may 
obtain an electronic copy on compact disk by writing the Service's 
Southeast Regional Office, Atlanta, Georgia. 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), Ecological 
Services Field Office, 1208-B Main Street, Daphne, Alabama 36526, or 
Bon Secour National Wildlife Refuge, 12295 State Highway 180, Gulf 
Shores, Alabama 35603. Written data or comments concerning the 
application or HCP should be submitted to the Regional Office. Please 
reference permit numbers TE007985-0 and TE031307-0 in requests for the 
documents discussed herein.

Coordinator, (see ADDRESSES above), telephone: 404/679-7313, facsimile: 
404/679-7081; or Ms. Celeste South, Fish and Wildlife Biologist, Daphne 
Field Office, Alabama (see ADDRESSES above), telephone: 251/441-5181.

SUPPLEMENTARY INFORMATION: The ABM is one of eight subspecies of the 
oldfield mouse restricted to coastal dunes. The Service estimates that 
ABM historically occupied approximately 45 km (28 mi) of shoreline. By 
1987, the total occupied linear, shoreline habitat for the ABM, 
Choctawhatchee, and Perdido Key beach mice was estimated at less than 
35 km (22 mi). 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 the Fort Morgan Peninsula 
remains occupied (more or less continuously) by ABM along its primary 
and secondary dunes while ABM use interior habitats intermittently. The 
current occupied coastline for the ABM extends approximately 37 km (23 
    ABM habitat on the Applicants' properties consists of approximately 
38 acres of primary/secondary dunes, 21.7 acres of escarpment, 21.8 
acres of adjacent scrub and 90 acres of interior scrub. The total area 
of designated critical habitat among these habitats is 32.4 acres, 
consisting of open beach dunes and swales within the southern portions 
of the properties, extending from the mean high water line of the Gulf 
of Mexico northward for 500 feet.
    The green turtle has a circumglobal distribution and is found in 
tropical and sub-tropical 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 
350-2,300 nests annually. The Service's turtle nesting surveys of the 
Fort Morgan Peninsula, from Laguna Key west to Mobile Point, for the 
period 1994-2001 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 are deposited 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 outer coastal sand beaches of Alabama. The 
Service's nesting surveys of the Fort Morgan Peninsula, from Laguna Key 
to Mobile Point, for the 2001 report included over 70 loggerhead turtle 
nests, four of which were found on shoreline beaches along the 
Applicants' properties.
    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 is tropical and 
temperate seas in the Atlantic Basin and in the Gulf of Mexico. Nesting 

[[Page 67292]]

primarily in Tamaulipas, Mexico, but occasionally also in Texas and 
other southern states, including an occasional nest in North Carolina. 
The Service's nesting surveys of the Fort Morgan Peninsula, from Laguna 
Key to Mobile Point, for the period 1994-2001 report no nests of the 
Kemp's ridley sea turtle on beaches along the Applicants' properties. 
In 1999, a Kemp's ridley sea turtle nested on Bon Secour National 
Wildlife Refuge and another along the Gulf Island's National Seashore 
in Perdido Key Florida. In 2001, two dead Kemp's ridley sea turtle 
hatchlings were recovered, one on Bon Secour National Wildlife Refuge, 
and the second in Gulf Shores, Alabama.
    The two projects, Gulf Highlands Condominiums (GHC) and Beach Club 
West (BCW), are separate developments but are being considered together 
at the request of Gulf Highlands LLC and Fort Morgan Paradise Joint 
Venture, the respective Applicants. The two Applicants have joined 
together to produce a single Habitat Conservation Plan (HCP), as 
required by the Endangered Species Act, for their projects. The 
Applicants hope to obtain their permits and jointly implement the 
provisions of the HCP.
    The EA considers the effects of six project alternatives, including 
a no-action alternative that would result in no new construction on the 
Project site, and a single family home alternative that would result in 
build out of the properties as originally platted. Neither of these 
alternatives would be economically feasible for the applicants. The 
remaining four alternatives involve various arrangements of high-rise 
condominiums. The important differences among these four alternatives 
relate to the amount of beach front developed, the width and placement 
of an undeveloped ABM ``corridor'' to allow ABM movements to and from 
the dune and escarpment habitats, and the placement of the condominium 
towers. One of these alternatives was suggested by the Service as a 
``less-take'' alternative and would move the development approximately 
300 feet north of the escarpment. The applicants have cited legal and 
economical reasons for why the less-take alternative could not be 
    In the Applicant's preferred alternative, the two projects involve 
construction of large condominium developments near the Gulf of Mexico 
on approximately 62 of the total 180.5 acres of wet beach, coastal 
dune, escarpment, wetlands, and scrub habitats owned by the applicants. 
An additional 16 acres of platted road rights-of-way, owned by Baldwin 
County, exist within the project boundary. The project area therefore 
encompasses about 196.4 acres. Applicant land holdings extend from the 
Gulf to Alabama Highway 180. Only part of this acreage would actually 
be developed, totaling about 62.7 acres of ABM habitat. The remaining 
area, some of which is ABM habitat, would be conserved in perpetuity. 
Six 20-story condominium towers (two for BCW and four for GHC), 
thirteen single family units, and a commercial development including 
about 20 housing units on the upper level would be constructed. 
Collectively this development would contain 973 living units. Other 
facilities would include parking lots, access roads, swimming pools, 
tennis courts, patios, a club house, shops, a proposed medical 
facility, sidewalks, landscaped areas, small freshwater lakes-detention 
ponds, trails, and dune walkovers for access to the Gulf of Mexico. The 
condominium structures would be oriented on an east-west alignment 
starting approximately 660 to 730 feet north of the Gulf of Mexico. The 
applicants own approximately 2,844 feet of Gulf frontage. As proposed 
in the Applicants' preferred alternative, 1,835 feet of that frontage 
would be developed and 909 feet conserved in perpetuity. The area south 
of the structures would be sloped by the applicants and native 
vegetation planted.
    All proposed alternatives include measures designed to avoid or 
minimize take. In addition to these measures, in the applicant's 
preferred alternative, a planned development adjoining the western 
boundary of the project, the French Caribbean, would not be constructed 
and would remain undeveloped as an ABM conservation area. Fort Morgan 
Paradise Joint Venture owns the French Carribean development, and has 
offered to forego its construction. As this development has received a 
Corps of Engineers wetland permit, and was subject to review under 
section 7 of the Endangered Species Act, there is no ITP required for 
    Based on trapping data and other research, the ABM uses portions 
(some on a permanent basis, others episodically) of the entire tract of 
land, except for wetlands, heavily vegetated areas, and northern 
sections that lack suitable soil for burrowing. The proposed project 
would adversely impact the ABM population directly by killing 
individuals in the construction areas via crushing or entombment and 
indirectly by introduction of house pets (cats), introduction of 
competitors (house mice), attraction of predators, permanent human 
disturbances and fragmentation of habitat and ABM populations. 
Occupation of the proposed structures could adversely affect sea turtle 
nesting by disorienting nesting females and misorienting hatchlings by 
excess artificial lighting, trampling nests, and trapping or 
disorienting nesting females and emerging hatchlings among tire ruts or 
beach equipment left after dark.
    Under section 9 of the Act and its implementing regulations, 
``taking'' of endangered and threatened wildlife is prohibited. 
However, the Service, under limited circumstances, may issue permits to 
take such wildlife if the taking is incidental to and not the purpose 
of otherwise lawful activities. The Applicants have prepared an HCP as 
required for the incidental take permit application, and as described 
above as part of the proposed project.
    As stated above, the Service has not made a preliminary 
determination whether the issuance of the ITPs is a major Federal 
action significantly affecting the quality of the human environment 
within the meaning of section 102(2)(C) of NEPA. This determination 
will be made incorporating public comment received in response to this 
notice and will be based on information contained in the EA and HCP.
    The Service will also evaluate whether the issuance of section 
10(a)(1)(B) ITPs complies with section 7 of the Act by conducting an 
intra-Service section 7 consultation. The results of the biological 
opinion, in combination with the above findings, will be used in the 
final analysis to determine whether or not to issue the ITP.

    Dated: December 20, 2001.
Sam D. Hamilton,
Regional Director.
[FR Doc. 01-31907 Filed 12-27-01; 8:45 am]