[Federal Register: July 20, 2004 (Volume 69, Number 138)]
[Page 43429-43431]
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: David Sime (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 0.33 acre of Florida scrub-jay (Aphelocoma coerulescens) 
(scrub-jay) foraging, sheltering, and possibly nesting habitat,

[[Page 43430]]

incidental to lot preparation for the construction of a single-family 
home and supporting infrastructure in Brevard County, Florida 
(Project). The destruction of 0.33 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 August 19, 2004.

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 TE086774-0 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 32216-0912.

Coordinator, (see ADDRESSES above), telephone: (404) 679-7313, 
facsimile: (404) 679-7081; or Mr. Rob Bittner, Fish and Wildlife 
Biologist, Jacksonville Field Office, Jacksonville, Florida (see 
ADDRESSES above), telephone: (904) 232-2580, ext. 120.

SUPPLEMENTARY INFORMATION: If you wish to comment, you may submit 
comments by any one of several methods. Please reference permit number 
TE086774-0 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.
    A family of scrub-jays is known to have used the residential lot 
during 2001 as a nesting site, then were observed again in 2002 using 
the site for foraging. The 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 northern 
Brevard County. The project site is positioned on the extreme western 
edge of an area supporting 16 families of scrub-jays. 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 are unlikely to persist in urban 
settings, and conservation efforts for this species should target 
acquisition and management of large parcels of land outside the direct 
influence of urbanization.
    Construction of the Project's infrastructure and facilities will 
result in harm to scrub-jays, incidental to the carrying out of these 
otherwise lawful activities. Habitat alteration associated with the 
proposed residential construction will reduce the availability of 
foraging, sheltering, and possible nesting habitat for one family of 
scrub-jays. The Applicant proposes 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 0.33 acre lot will utilize all the available land 
area. Retention of scrub-jay habitat on-site may not be a biologically 
viable alternative due to increasing negative demographic effects 
caused by urbanization.
    The Applicant proposes to mitigate the take of scrub-jays through 
contribution of $4,422 to the Florida Scrub-jay Conservation Fund 
administered by the National Fish and

[[Page 43431]]

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 $4,422 is sufficient 
to acquire and perpetually manage 0.66 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 
Applicant's 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.
    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.

    Dated: July 3, 2004.
Mitch King,
Acting Regional Director, Southeast Region.
[FR Doc. 04-16410 Filed 7-19-04; 8:45 am]