[Federal Register Volume 63, Number 251 (Thursday, December 31, 1998)]
[Notices]
[Pages 72321-72322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34673]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Endangered and Threatened Wildlife and Plants: Notice of 
Availability and Opening of Comment Period for an Environmental 
Assessment/Habitat Conservation Plan and Receipt of an Application for 
an Incidental Take Permit for the Delmarva Fox Squirrel in Association 
with Home Port on Winchester Creek Development Project, Queen Anne's 
County, Maryland

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.

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SUMMARY: This notice advises the public that Waterman Realty Company, 
Winchester Creek Limited Partnership has applied to the U.S. Fish and 
Wildlife Service for an incidental take permit pursuant to section 
10(a)(1)(B) of the Endangered Species Act of 1973, as amended. The 
application has been assigned permit number TE006310-0. The proposed 
permit would authorize the incidental take of a Federally endangered 
species, the Delmarva fox squirrel (Sciurus niger cinereus) known to 
occur on property owned by the Applicant in Grasonville, Queen Anne's 
County, Maryland. The proposed taking is incidental to the planned 
housing and road construction and subsequent occupancy activities of 
Home Port on Winchester Creek Housing Development on approximately 56 
acres owned by WCLP. The permit would be in effect for 50 years.
    The Service announces the receipt of the WCLP ITP application and 
the availability of the proposed Home Port on Winchester Creek Housing 
Development Habitat Conservation Plan and draft Implementing Agreement 
which accompanies the ITP application, for public comment. In addition, 
the Service also announces the availability of a draft Environmental 
Assessment for the proposed issuance of the incidental take application 
and signing of the agreement. This notice is provided pursuant to 
section 10(c) of the Act and National Environmental Policy Act of 1969 
regulations (40 CFR 1506.6).
    The Service will evaluate the application, associated documents, 
and comments submitted thereon to determine whether the application 
meets the requirements of NEPA regulations and section 10(a) of the 
Act. If it is determined that the requirements are met, a permit will 
be issued for the incidental take of the DFS. The final NEPA and permit 
determinations will not be completed until after the end of the comment 
period and will fully consider all public comments received during the 
comment period.
    The Service specifically requests comments on the appropriateness 
of the ``No Surprises'' assurance contained in this application, should 
the Service determine that an ITP will be granted and based upon the 
submitted HCP. Although not explicitly stated in the HCP, the Service 
has, since August 1994, announced its intention to honor a ``No 
Surprises'' Policy for applicants seeking ITPs. Copies of the Service's 
``No Surprises'' policy may be obtained by making a written request to 
the Regional Office (see ADDRESSES). In the event of unforeseen or 
extraordinary circumstances affecting the DFS. WCLP will not be 
required to provide additional mitigation measures. If the Service 
makes a finding of extraordinary circumstances, which warrants 
requiring additional mitigation or compensation, the primary 
responsibility rests with the Federal government. The Service is 
soliciting public comments and review of the applicability of the ``No 
Surprises'' Policy to this application and HCP. All comments received, 
including names and addresses, will become part of the official 
administrative record and may be made available to the public.

DATES: Written comments on the permit application, HCP, IA and EA 
should be sent to the Chesapeake Bay Field Office (see ADDRESSES) and 
should be received on or before February 1, 1999.

ADDRESSES: Persons wishing to review the permit application, HCP, EA, 
and IA may obtain a copy by writing the Service's Chesapeake Bay Field 
Office, 177 Admiral Cochrane Drive, Annapolis, MD 21401. Requests for 
the documentation must be in writing to be processed. Written data or 
comments concerning the permit application, EA, HCP, and/or IA should 
also be addressed to the Field Supervisor, U.S. Fish and Wildlife 
Service, Chesapeake Bay Field Office, Annapolis, Maryland. Please refer 
to permit #TE006310-0 when submitting comments. Documents will be 
available for public inspection by written request, by appointment 
only, during normal business hours (8:00 to 4:30). Requests for the 
documentation of the ``No Surprises'' policy should be addressed to the 
U.S. Fish and Wildlife Service, Region 5, 300 Westgate Center Drive, 
Hadley, Massachusetts, 01035-9589, ATTN: Endangered Species Program.
FOR FURTHER INFORMATION CONTACT:
Mr. John Wolflin or Ms. Keren Giovengo, Chesapeake Bay Field Office 
(see Addresses above), 410-573-/4574/4538.

SUPPLEMENTARY INFORMATION: Section 9 of the Act and Federal regulation 
prohibits the ``taking'' of a species listed as endangered or 
threatened. Under the Act, the term ``take'' means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect listed 
wildlife, or to attempt to engage in any such conduct. The Service may, 
under limited circumstances, issue permits to ``incidentally take'' 
listed species, if such taking is incidental to, and not the purpose 
of, otherwise lawful activities. Regulations governing permits for 
endangered species are promulgated in 50 CFR 17.22.

Background

    The DFS is a southeastern subspecies of Sciurus niger, a species 
found naturally throughout the eastern United States. Historically, DFS 
were distributed throughout the Delmarva peninsula and into 
southeastern Pennsylvania and southern New Jersey, but these squirrels 
now persist naturally in only four Maryland counties: Queen Anne's, 
Talbot, Dorchester, and Kent (historic transplant). Although 
quantitative population data are scant, DFS may be locally abundant in 
mature pine and mixed hardwood forest in these counties: however, this 
species is typically observed in low densities, and populations may be 
adversely affected by reductions in numbers of only a few individuals.
    In addition to remnant natural populations. DFS translations have 
figured prominently in the recovery program, and DFS have been 
reintroduced to 17 sites within their historical range. Although it 
appears that squirrel colonies have been successfully established at 11 
of these sites, more assessment and investigation is needed to verify 
their status.
    Owing to he disappearance of the DFS from 90% of its former range, 
the DFS was listed as Federally endangered on March 11, 1967 (32 FR 
4001). Although exact causes are unknown, the dramatic decline is 
attributed to habitat destruction primarily through forest management 
practices and urbanization (residential and commercial development) 
throughout its range. Historically, overhunting of DFS may have been an 
additional cause.
    Two DFS sightings has been documented on the Home Port on 
Winchester Creek Housing Development

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site. In addition, DFS sightings have been documented directly adjacent 
to the site on adjacent property. Additional documented occurrences of 
DFS in the nearby area are approximately 1-3 miles away on private land 
within Gransonville and adjacent Queenstown, Maryland.
    The WCLP has applied to the Service for an incidental take permit 
pursuant to Section 10(a) of the Act. The Applicant proposes to 
implement an HCP for the DFS that will allow the home and road 
construction and subsequent occupancy activities in DFS habitat. The 
Applicant's proposed development may result in take, as defined in the 
Act and its implementing regulations, of listed species. Authorized 
take would only affect DFS; take of other federally-listed species is 
specifically excluded from the proposed action. This permit would 
authorize the incidental take of DFS at Home Port on Winchester Creek 
Housing Development trough otherwise lawful activities, specifically 
the planned home and road construction and subsequent occupancy 
activities, occurring in DFS habitat. The HCP and permit would be in 
effect for 50 years upon issuance. Included in the application is an 
HCP detailing the activities that would result in incidental take and 
describing measures that mitigate, minimize and monitor the amount of 
take. The application also includes an IA and EA. Homeowners that 
undertake such actions will be included under the WCLP's proposed 
permit that will authorize the incidental take.
    The Applicant proposes the construction and subsequent occupancy of 
Home Port on Winchester Creek Housing Development in Grasonville, 
Maryland, for economic proposes. The design of the development project 
consists of 16 residential homes on approximately 56 acres of mixed 
forested/agricultural habitat. Approximately 25 acres of the site is 
forested, with approximately 27 acres of the site in agricultural 
habitat. The project site is bordered on the shoreline by a forested 
buffer with the majority of acreage in the interior of the property 
consisting of agricultural fields. A large stand of mature forest lies 
in the southern corner of the property and includes both upland and 
nontidal wetlands.
    The anticipated incidental take will be limited to the permanent 
loss of habitat on 0.50 acres, and the degraded/disturbed habitat on 
9.6 acres, with species present, being harmed or harassed. In addition, 
anticipated incidental take will be limited to harm of up to 15 DFS 
within the 50-year ITP period, that may be associated with vehicular 
strikes associated with any construction and subsequent residential 
occupancy activities within the subject property.
    The WCLP has agreed to implement the following measures to 
minimize, mitigate and monitor impacts that may result from incidental 
take of the DFS: (a) implement an education and public awareness 
program for construction workers, contractors, and homeowners: (2) 
implement a maximum speed limit of 15 mph for vehicles and equipment 
(includes construction workers, contractors, and homeowners: (3) 
request the installation of DFS road sings, three-way stop signs, and 
two-way stop signs in order to minimize potential vehicles strikes of 
DFS: (4) maintain specified areas adjacent to road sides/edges and 
forest edges as an open area for purpose of providing visibility and 
deterrence to DFS movement to minimize vehicle strike: (5) record Deeds 
of Open Space and Environmental Easements, a Declaration of Covenants. 
Conditions and Restrictions, 1A and the Record Plat in the land records 
of Queen Anne's County that establishes specific limits of disturbances 
and sets buffers for forested habitat for each lot to protect DFS from 
human disturbances: (6) implement, enforce, and obey regulations 
pertaining to restraint and control of domestic pets to minimize 
harassment or mortality of DFS: (7) have a contact representative on 
site during construction activities and an additional contact 
representative with the Homeowner's Association. In addition fencing 
(temporary during construction activities, permanent for home occupancy 
activities) will be erected in order to establish specific limits of 
disturbance and buffers: (8) report dead and/or injured DFS to USFWS: 
(9) if necessary, relocate any DFS found in construction area: (10) 
prohibit trash dumping except into containers, igniting open-air fires, 
discharge of firearms on site during construction, and unleashed pets 
on site during construction activities: (11) prohibit unleashed 
domestic pets outside of residences or fences: and (12 prohibit small 
game hunting (excluding waterfowl). In addition, WCLP proposes to fund 
the maintenance and restoration or enhancement of approximately 5 acres 
of suitable DFS habitat in the HCP area, contribute to a trust fund and 
other long-term mechanism to ensure successful implementation of 
restoration activities, and to place under conservation restrictions 
approximately 31 areas of off-site habitat as identified in the HCP.
    The EA considers the environmental consequences of three 
alternatives, including the proposed action, a no-action alternative, 
and a no-take determination alternative. The proposed action 
alternative is the issuance of a permit under Section 10(a) of the Act 
that would authorize incidental take of the DFS that may occur in the 
habitats of Home on Winchester Creek Development, and implementation of 
the HCP and IA as submitted by the Applicant. The proposed action would 
require the Applicant to implement their HCP. The HCP provides 
mitigation measures for the proposed incidental taking including 
habitat enhancement, permanent protection of an off-site parcel, and 
contribution to a trust fund. The HCP provides a funding mechanism for 
these mitigation measures. Under the no-action alternative, the 
Applicant would not develop the proposed development site in Queen 
Anne's County and thus avoid the take of DFS. No ITP would be deemed 
necessary or issued. The no-take determination alternative would entail 
impacts as those described for the proposed action, however, ``taking'' 
of DFS would occur without minimization or mitigation of take. Thus, 
the number of DFS taken would be unrestricted and eventual reduction in 
the local population would be likely.
    The Service provides this notice pursuant to section 10(c) of the 
Act. The Service will evaluate whether the issuance of a section 
10(a)(1)(B) ITP 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 evaluation of the permit application, 
the NCP, EA, IA and comments submitted thereon, will be used in the 
final analysis to determine whether the application meets the 
requirements of section 10(a) of the Act. If the requirements are met, 
the Service will issue a permit to the WCLP for the incidental take of 
DFS during the proposed construction and subsequent occupancy of Home 
Port on Winchester Creek Housing Development. We will make the final 
permit decision no sooner than 30 days from the date of this notice.

    Dated: December 28, 1998.
Ronald E. Lambertson,
Regional Director, Region 5.
[FR Doc. 98-34673 Filed 12-30-98; 8:45 am]
BILLING CODE 4310-55-M