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###### Department of the Interior

###### Fish and Wildlife Service

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability; receipt of application.

# SUMMARY:

                        This notice advises the public that Mick and Donna Ghormley, Ken Bilyeu, and Forrest Dickerson (Applicants) have applied to the Fish and Wildlife Service (Service or “we”) for an incidental take permit (ITP), pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The requested 25-year permit would authorize the incidental take of the federally-listed as threatened bald eagle (                        *Haliaeetus leucocephalus*), associated with the lawful construction of three residential homes, associated utilities, access driveways, and human-use activities adjacent to a nest tree. The property is located adjacent to Netarts Bay, Tillamook County, Oregon.                    

We are requesting comments on the permit application and on whether the proposed Habitat Conservation Plan (HCP) qualifies as a “low effect” HCP, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. We explain the basis for this possible determination in a draft Environmental Action Statement (EAS), which is also available for public review.

# DATES:

Written comments must be received by 5 p.m. on December 30, 2004.

# ADDRESSES:

Comments should be addressed to Kemper McMaster, State Supervisor, Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Ave., Suite 100, Portland, Oregon, 97266; facsimile (503) 231-6195.

# FOR FURTHER INFORMATION CONTACT:

                        Richard Szlemp, Fish and Wildlife Biologist (                        *see***ADDRESSES**                        ), or telephone (503) 231-6179.                    

# SUPPLEMENTARY INFORMATION:

## Availability of Documents

                    Individuals wishing copies of the application, proposed HCP, or EAS, should contact the Service by telephone (                    *see***FOR FURTHER INFORMATION CONTACT**                    ) or by letter (                    *see***ADDRESSES**                    ). Copies of the subject documents also are available for public inspection during regular business hours at the Oregon Fish and Wildlife Office (                    *see***ADDRESSES**                    ).                

## Background

Section 9 of the Act and its implementing regulations prohibit the take of animal species listed as endangered or threatened. Under the Act, the following activities are defined as take: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). However, under section 10(a) of the Act, the Service may issue permits to authorize incidental take of listed animal species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32. The Applicants are seeking a permit for the incidental take of the bald eagle during the life of the permit.

Proposed covered activities under this HCP include construction of three conventional homes, associated utilities, access driveways and parking areas, and activities associated with occupation of the homes. The proposed three residential lots (lot 400, approx. 0.52 acre; lot 500, approx. 0.43 acre; and lot 201, approx. 4.3 acres) are platted in a subdivision. The Whiskey Creek bald eagle nest tree occurs on lot 400. The nest was discovered in 2001 and has been monitored for the past 4 years. There have been no chicks or eggs observed to date.

                    The proposed minimization and mitigation measures include protecting all but one of the 26 suitable bald eagle perch trees (greater than 30 inches in diameter) on the three lots. The proposed access road to lot 201 comes close to four other large trees and excavation near these trees will be minimized as practicable. The landowner plans to preserve the remaining large trees as a management action. This proposal has the potential to impact nesting success of the Whisky Creek bald eagle pair by loss of the nest tree and/or disturbance (                    *i.e.*, noise and human activity). The possibility that the nest tree will be lost is related to the likelihood that the proposed houses and utilities will cut the roots of the nest tree or the adjacent large spruce tree. All excavations for house foundations, driveways and septic fields are proposed outside of the estimated root zones for each tree (50 feet from the nest tree). Outdoor construction will be prohibited from 15 January to 15 August of any year if the nest is successful and                           ( print page 69618)                        from 15 January to 15 May of any year if the nest is not successful.                

Approval of the HCP may qualify as a categorical exclusion under NEPA, as provided by the Departmental Manual (516 DM 2, Appendix 1, and 516 DM 6, Appendix 1) and as a “low effect” plan as defined by the Habitat Conservation Planning Handbook (Service, November 1996). Determination of low effect HCPs is based upon the plan having: Minor or negligible effects on federally-listed, proposed, and candidate species and their habitats; minor or negligible effects on other environmental values or resources; and impacts that considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects would not result, over time, in cumulative effects to the environmental values or resources which would be considered significant. If it is found to qualify as a low-effect HCP, further NEPA documentation would not be required.

## Public Review and Comment

                    If you wish to comment on the permit application, draft Environmental Action Statement or the proposed HCP, you may submit your comments to the address listed in the                     **ADDRESSES**                     section of this document. We will evaluate this permit application, associated documents, and comments submitted thereon to determine whether the permit application meets the requirements of section 10(a) of the Act and NEPA regulations. Individual respondents may request that we withhold their home address from the record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, are available for public inspection in their entirety. If we determine that the requirements are met, we will issue an incidental take permit under section 10(a)(1)(B) of the Act to the Applicants for the take of the bald eagle, incidental to otherwise lawful activities in accordance with the terms of the permit. We will not make our final decision until after the end of the 30-day comment period and will fully consider all comments received during the comment period.                

                    Pursuant to an order issued on June 10, 2004, by the District Court for the District of Columbia in                     *Spirit of the Sage Council*                     v.                     *Norton,*                     Civil Action No. 98-1873 (D. D.C.), the Service is enjoined from issuing new section 10(a)(1)(B) permits or related documents containing “No Surprises” assurances, as defined by the Service's “No Surprises” rule published at 63 FR 8859 (February 23, 1998), 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 Procedures 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 June 10, 2004, order has been rescinded or the Service's authority to issue permits with “No Surprises” assurances has been otherwise reinstated, the Service will not approve any incidental take permits or related documents that contain “No Surprises” assurances.                

The Service provides this notice pursuant to section 10(c) of the Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6).

Dated: November 2, 2004.

Daniel H. Diggs,

Acting Deputy Regional Director, Fish and Wildlife Service, Portland, Oregon.

[FR Doc. 04-26418 Filed 11-29-04; 8:45 am]

BILLING CODE 4310-55-P