[Federal Register Volume 60, Number 162 (Tuesday, August 22, 1995)]
[Notices]
[Pages 43609-43611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20725]
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DEPARTMENT OF THE INTERIOR
Notice of Intent to Issue of an Incidental Take Permit, PRT-
802986, to Aronov Realty Management, Incorporated, in Baldwin County,
Alabama
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Public Notification of an Intent to Issue a Section 10(a)(1)(B)
Incidental Take Permit and Announcement of a Public Workshop/
Informational Meeting to Discuss Section 10 of the Endangered Species
Act and Management of the Bon Secour National Wildlife Refuge.
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SUMMARY: The Fish and Wildlife Service gives Notice Of An Intent to
Issue an incidental take permit to Aronov Realty and Management
Incorporated for the endangered Alabama Beach Mouse pursuant to the
Service's authority under Section 10(a)(1)(B) of the Endangered Species
Act of 1973 as amended (16 U.S.C. 1631 et seq.). The Service's decision
is reached after review of public comments on the application, the
adequacy of minimization and mitigation measures outlined in the
Applicant's Habitat Conservation Plan as measured against the Service's
issuance criteria found at Sec. 17.22 and Sec. 13.21, and the
availability of the best biological and commercial data available on
the Alabama beach mouse.
The Service published in the Federal Register a notice of
availability of the Applicant's Habitat Conservation Plan and the
Service's Environmental Assessment on May 30, 1995 (60 FR 28428). The
permit number PRT-802986 was assigned to the Applicant. The original
public comment period was to close on June 30, 1995. In the intervening
period, however, the Applicant proposed additional mitigation and
minimization measures for the project. In response to this additional
submittal, the Service extended the public comment period of the
application to July 15, 1995 through another Federal Register notice
dated June 20, 1995 (60 FR 32161-32162).
During the public comment period, the Service received two requests
for the Applicant's Habitat Conservation Plan and the Service's draft
Environmental Assessment for the project. The two requestors of the
documentation did not provide the Service any comments on the
application. One request for the documentation was received after the
close of the public comment period and was provided to the requestor.
The Service did receive, however, 23 individual comment letters from
members of the public, none of whom requested in writing the documents
available in either of the Federal Register notices. All of the public
comment letters expressed objections to the Applicant's request for
incidental taking of the Alabama beach mouse and other concerns as
outlined in the Supplementary Information section of this notice.
Because the Service has decided to issue a permit contrary to
objections, the Service is publishing this notice pursuant to
Sec. 17.22(c)(2) and it is to serve as the 10-day notice to objecting
parties.
DATES: The Service will likely issue an incidental take permit to the
Applicant no earlier than 10 days after the date of this Federal
Register notice but no later than 60 days of this Federal Register
notice.
ADDRESSES: Any questions regarding this action should be addressed to
Regional Permit Coordinator, U.S. Fish and Wildlife Service, 1875
Century Boulevard, Suite 200, Atlanta, Georgia 30345, (telephone 404/
679-7110, fax 404/679-7280).
FOR FURTHER INFORMATION CONTACT: Rick G. Gooch at the Atlanta, Georgia,
Regional Office at 404/679-7110.
SUPPLEMENTARY INFORMATION: Section 9 of the Act prohibits the
``taking'' of any threatened or endangered species, including the
Alabama beach mouse. The Service, under limited circumstances, may
issue authorizations to take threatened and endangered wildlife species
if such taking is
[[Page 43610]]
incidental to, and not the purpose of, otherwise lawful activities.
As stated above, the Service received 23 public citizen comment
letters, 22 of which were received during the open public comment
period. One additional comment letter, which was actually submitted as
a supplementary comment letter from the conservation organization, was
received after the close of the public comment period. The Service's
response to all public comments are set forth in this notice.
Both general and specific public comments are broken down as
follows, with an accompanied Service response:
Specific Public Concern 1
The mitigation/minimization measures, including the control of
cats, lighting restrictions, monitoring and control of the Alabama
beach mouse competitors, as outlined for the project will not be
enforceable.
Service Response: The Section 10 permit process provides the
opportunity for complete compliance by the permittee with a granted
permit through enforcement of the permit's terms and conditions.
Section 11 of the Act, Penalties and Enforcement, provides for
civil and/or criminal penalties for any person, including a business
entity, who knowingly violates any provision of any permit issued under
the Act. The mitigation and minimization measures outlined in the
Habitat Conservation Plan will become binding provisions of the
incidental take permit and will therefore become enforceable against
all persons who hold title to the land for the duration of the permit.
Specific Public Concern 2
One commentor felt that the applicant's earlier negotiations with
the Service concerning the possible sale of the land showed a lack of
cooperations, because, in the commentor's opinion, the asking price was
too high. The commentor urged the Service to view the applicant's
earlier non-cooperation as grounds for the Service to be
``uncooperative'' in processing the Section 10 permit application.
Service Response: The Service finds this comment to be without
support. Even if the commentor could demonstrate that the applicant had
not been cooperative in earlier land acquisition negotiations, that
fact would be irrelevant. The Service has worked cooperatively with the
applicant on an acceptable design of the project. The Service has
certain regulations which limit its ability to offer more than the
market value for a piece of property it wishes to acquire, either from
a willing seller or through condemnation. The statutory and regulatory
criteria for Section 10 permit issuance does not address an applicant's
behavior, whether it is cooperative or uncooperative.
Specific Public Concern 3
Insufficient biological data was used in the analysis of the impact
of the project on the Alabama beach mouse.
Service Response: The biological surveys conducted on the project
were approved by the Service and achieved the expected result of
identifying, in a qualitative manner, the general distribution and
population density of the Alabama beach mouse relative to the site's
habitat features. This data confirms the current scientific literature
for habitat selection of the Alabama beach mouse, and it provides an
accurate assessment of the population size and identifies habitat
utilization patterns. Additional survey data will not increase the
Service's ability to drawn conclusions of the effects of construction
of this project on the Alabama beach mouse.
Specific Public Concern 4
Development should be redesigned to avoid take of the Alabama beach
mouse.
Service Response: The Applicant, through consultation with the
Service, designed the project to minimize take of the Alabama beach
mouse. Alternatives explored by the applicant on design of the project
are identified in the Habitat Conservation Plan, including a no-build
alternative and several alternatives constructing a higher-density
development. It is the Service's position that the Section 10 issuance
criteria, including the criteria that the take be minimized and
mitigated to the maximum extent practicable, has been met in this case.
General Public Concern 1
Issuance of the incidental take permit will lead to a taking of an
endangered species, destroy the Alabama beach mouse, or otherwise not
promote the conservation of the species.
Service Response: A central premise of Section 10 of the Act is to
provide a legal means for private landowners to take, incidental to
other lawful activities, members of endangered or threatened wildlife
in exchange for a conservation plan (a Habitat Conservation Plan) which
minimizes and/or mitigates permitted take to the benefit of the
species.
The project may result in incidental taking of the Alabama beach
mouse in some areas. However, the Habitat Conservation Plan and the
implementing permit will contain minimization and mitigation measures
to minimize losses of individual Alabama beach mouse. Design of each
building's footprint, as outlined in the Habitat Conservation Plan,
will minimize destruction of secondary dunes and interdunal swales.
Conservation of the secondary dune system, the interdunal swale systems
and all of the primary dune system will be achieved. No construction of
habitable buildings is proposed within the primary dune system, which
is the critical habitat of the Alabama beach mouse. Controlling cats, a
known predator of the Alabama beach mouse, and addressing other
indirect effects of human habitation of the project, are also required
as a result of issuance of a permit. The competitors of the Alabama
beach mouse will also be monitored over the life of the project.
Control of human access to the beach will be maintained through
construction of boardwalks over the primary dune system. All of these
measures are mandatory elements of accepting the project and compliance
is assured through enforcement of the permit.
On review of the action of issuance of the permit and these
measures, and use of the best biological and commercial data available
on the species affected, the Service expects that the project will
result in minimal effects to the extant Alabama beach mouse population.
General Public Concern 2
Issuance of this incidental take permit will lead to future coastal
development projects on the Fort Morgan peninsula which will impact the
Alabama beach mouse population.
Service Response: Most of the private land which fronts the Gulf of
Mexico on the Fort Morgan peninsula has the potential to support the
Alabama beach mouse. Consequently, every private landowner seeking
incidental take of endangered species will likely use the Section 10
permit or Section 7 consultation process. The Service for the past 2
years has secured Section 10 permits from every high density or large-
scale development on the Fort Morgan Peninsula, as well as from several
small property owners. It is therefore reasonable to conclude that
cumulative detrimental effects to extant Alabama beach mouse
populations from continued gulf-front construction will be minimized
through use of the Section 10 permits for coastal development. Also, it
is important to note that the Act is not a land use regulation. Only
local authorities (States and local governments) have the ability to
dictate zoning or other community safety,
[[Page 43611]]
health and welfare issues. Development on the Fort Morgan peninsula
will occur regardless of whether or not a Section 10 permit is obtained
from the Service. The Section 10 process addresses the impact of
otherwise lawful activities such as residential and commercial
development on an endangered and/or threatened wildlife species and
provides a mechanism for resolution of endangered species conservation
and private economic development. The applicant is required to comply
with all other laws and authorities to maintain the validity of an
issued incidental take permit for the Alabama beach mouse.
General Public Concern 3
The project would be constructed inside the Bon Secour National
Wildlife Refuge or otherwise compromise the biological resources of the
refuge.
Service Response: The lands subject to the application are
currently privately-owned, they are not owned or controlled by the
Service or any other governmental agency. They are identified, however,
as Priority I acquisition lands for inclusion into the refuge. This
designation does not alter ownership or restrict private property
rights. The Service concluded in the Environmental Assessment on the
project that acquisition of the site is the environmentally preferred
alternative, and would very much like to acquire the lands owned by the
Applicant for inclusion into the refuge. The Service, as outlined in
detail in the Environmental Assessment, has several options: (1)
Condemn the property, (2) accept it from (donated by) the applicant,
(3) acquire it from a willing seller at market value, or (4) have the
lands acquired by a third-party and donated to the Service.
The Service has no funding immediately available to purchase the
land, nor are monies likely to be available in the foreseeable future.
There is no reliable way to predict when or if the property would be
acquired, since a willing seller must be available for acquisition by
others (Option 4 above). The applicant has not indicated a willingness
to donate the property, nor sell it to the Service at an agreed-upon
price. Based on this uncertainty, it is problematical at best to
identify specific time schedules for acquisition. The situation is
similar should the Service pursue condemnation of the property. The
action of condemnation of the parcel for inclusion into the refuge is
separate but related to the action before the Service, (e.g.,
determining whether the Applicant's proposal satisfies conditions for
an incidental take permit). The statutory requirements of the Act do
not allow the Service to delay, or hold in abeyance, a decision of
issuance or denial on the application for incidental taking, while
acquisition funding is sought. Note also, that even if an incidental
take authorization is granted for the project, it will not preclude the
ability of the Service to exercise any options for land acquisition
presented in the above discussion should the property not be developed.
General Public Concern 4
Many commentors requested a public hearing to allow the community
to share its opinions on the project.
Service Response: The Act and its governing regulations mentioned
above do not require the Service to hold a public hearing for receipt
of applications for incidental taking. A 45-day public comment period
was provided for review of the documentation associated with the
request for incidental taking by the project. After review of these
comments, the Service concludes that no substantial new information on
the effects of the project on the Alabama beach mouse was provided. The
public comments submitted did indicate numerous misperceptions
concerning the Section 10 permit process and raised numerous questions
concerning the management of the adjacent refuge.
The Service will hold a public informational workshop near the
project site in Baldwin County as specified below:
Date: September 6, 1995.
Location: Gulf Shores Adult Activity Center, 260 Clubhouse Drive,
Gulf Shores, Alabama.
Time: 6:30 p.m. to 9:30 p.m.
The purpose of this public information meeting will be to provide
opportunities for the Service to explain the role of the Section 10
process when reviewing private developments which may affect endangered
species, to explain the status of the Service's land acquisition
efforts in the refuge, and to discuss other matter germane to the
refuge. All members of the public are invited to attend this
informational meeting.
Dated: August 15, 1995.
Noreen K. Clough,
Regional Director.
[FR Doc. 95-20725 Filed 8-21-95; 8:45 am]
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