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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice of availability. 

# SUMMARY:

The Family Crisis Center (Applicant) has applied for an incidental take permit (TE-094076-0) pursuant to section 10(a) of the Endangered Species Act (Act). The requested permit would authorize incidental take of the endangered Houston toad. The proposed take would occur as a result of the construction and operation of a retail thrift store on a 1.38-acre property located on State Highway 71 in the Tahitian Village Subdivision, Bastrop County, Texas. 

# DATES:

To ensure consideration, written comments must be received on or before December 21, 2004. 

# ADDRESSES:

Persons wishing to review the application may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. Persons wishing to review the Environmental Assessment/Habitat Conservation Plan (EA/HCP) may obtain a copy by contacting Clayton Napier, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-0057). Documents will be available for public inspection by written request, by appointment only, during normal business hours (8 to 4:30) at the U.S. Fish and Wildlife Service Office, Austin, Texas. Written data or comments concerning the application and EA/HCP should be submitted to the Supervisor, U.S. Fish and Wildlife Service, Austin, Texas, at the above address. Please refer to permit number TE-094076-0 when submitting comments. 

# FOR FURTHER INFORMATION CONTACT:

Clayton Napier at U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758. 

# SUPPLEMENTARY INFORMATION:

Section 9 of the Act prohibits the “taking” of endangered species such as the Houston toad. However, the Fish and Wildlife Service (Service), under limited circumstances, may issue permits to take endangered wildlife species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for endangered species are at 50 CFR 17.22. 

The Service has prepared the EA/HCP for the incidental take application. A determination of jeopardy or non-jeopardy to the species and a decision pursuant to the National Environmental Policy Act (NEPA) will not be made until at least 60 days from the date of publication of this notice. This notice is provided pursuant to section 10(c) of the Act and NEPA regulations (40 CFR 1506.6). 

*Applicant:*                     The Family Crisis Center plans to construct a retail thrift store within 5 years, on a 1.38-acre property located on State Highway 71 in the Tahitian Village Subdivision, Bastrop County, Texas. This action will eliminate 1.38-acres or less of Houston toad habitat and result in indirect impacts within the lot. The Applicant proposes to compensate for this incidental take of the Houston toad by providing $2,760.00 to the Houston Toad Conservation Fund at the National Fish and Wildlife Foundation for the specific purpose of land acquisition and management within Houston toad habitat.                 

                    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 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 containing “No Surprises” assurances.                 

Bryan Arroyo, 

Acting Regional Director, Southwest Region.

[FR Doc. 04-23619 Filed 10-21-04; 8:45 am] 

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