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###### Department of the Interior

###### Fish and Wildlife Service

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice. 

# SUMMARY:

                        The Massachusetts Division of Fisheries and Wildlife has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit pursuant to Section 10(a)(1)(B) of the Endangered Species Act (Act). The requested permit, which is for a period of three years, would authorize the incidental take of the threatened piping plover                         *(Charadrius melodus)*                         in Massachusetts. The proposed take would occur as a result of specific actions relating to the management of recreational use of beaches where breeding piping plovers are found.                    

The Massachusetts Division of Fisheries and Wildlife has prepared a draft environmental assessment (EA) for the incidental take application. This notice is provided pursuant to Section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6).

# DATES:

Written comments on the application and draft EA should be received on or before June 19, 2000.

# ADDRESSES:

Written comments regarding the application and requests for copies of the draft EA and the conservation plan should be addressed to Field Supervisor, New England Field Office, 22 Bridge St., Unit 1, Concord, New Hampshire 03301-4986, telephone (603) 225-1411. Please refer to permit TE813653 when submitting comments. Comments regarding the conservation plan will be forwarded to the Massachusetts Division of Fisheries and Wildlife for review and response.

# FOR FURTHER INFORMATION CONTACT:

Susanna L. von Oettingen at the above address.

# SUPPLEMENTARY INFORMATION:

The Atlantic Coast piping plover was listed as a threatened species on January 10, 1986. Because of its listing as threatened, the piping plover is protected by the Act's prohibitions against “take”. However, the Service may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife under certain circumstances. Regulations governing permits are at 50 CFR 17.22, 17.23 and 17.32. For threatened species, such permits are available for scientific purposes, incidental take, or special purposes consistent with the purposes of the Act.

The Massachusetts Division of Fisheries and Wildlife (Division) has applied to the Service for an incidental take permit pursuant to Section 10(a)(1)(B) of the Act. This permit would authorize the incidental take of piping plovers through otherwise lawful activities occurring on plover breeding beaches. Included in the application is a conservation plan prepared by the Division detailing the activities that would result in incidental take and describing measures that mitigate, minimize and monitor the amount of take. In 1996, the Division was granted a Section 10(a)(1)(B) permit for the incidental take of piping plovers. The permit expired in 1998. The conservation plan included in the current application under review is an updated document and will replace the earlier conservation plan.

                    The revised recovery plan for the Atlantic Coast piping plover (U.S. Fish and Wildlife Service, 1996. Piping Plover (                    *Charadrius melodus*), Atlantic Coast Population, Revised Recovery Plan. Hadley, MA. 258 pp) identified New England (which includes Massachusetts) as a recovery unit. Guidelines in the recovery plan state that permits for incidental take that will reduce the productivity of breeding piping plovers should only be allowed in recovery units where the subpopulation has achieved at least 70% of its portion of the recovery goal. The 1999 preliminary estimate of 634 pairs of piping plovers in the New England recovery unit indicate that the population has exceeded the recovery goal of 627 pairs specified in the recovery plan. Furthermore, under an intensive management program, the Massachusetts piping plover population has increased more than four-fold over the last ten years, from 140 pairs in 1990 to 505 pairs in 1999.                

                    The purpose of the proposed incidental take permit is to provide increased flexibility in managing Massachusetts beaches for use by recreationists and homeowners, while assuring continued progress toward the recovery of the Massachusetts and Atlantic Coast populations of the piping plover. The additional flexibility in managing beaches will prevent a disproportionate expenditure of resources directed at the protection of a few nests or broods in areas where they may significantly disrupt beach access by large numbers of people and be highly vulnerable to disturbance and/or mortality. Management flexibility also                           ( print page 31593)                        will create incentives for the continued participation by beach management agencies and organizations involved in protecting piping plovers.                

The two alternatives presented by the Division in the conservation plan and the draft EA are limited to the proposed action and the no-action alternative (continuation of current management recommendations without increased flexibility for limited take).

The proposed action establishes strict statewide and site-specific eligibility criteria that must be met prior to the implementation of the proposed Section 10 incidental take permit. Statewide eligiblity requirements determine the level of take that will be allowed for each breeding season. Site-specific eligibility requirements determine whether a landowner may participate in permitted activities, and requires that these landowners make additional plover protection commitments, including the use of predator exclosures, prohibition of dogs, implementation of public outreach programs (for heavily-used public recreational beaches), and plover monitoring and reporting. The proposed permit would be effective during the 2000, 2001 and 2002 plover breeding seasons. Authorized take would only affect piping plovers; take of other federally-listed species is specifically excluded from the proposed action.

Incidental take likely to occur on eligible sites may result from several management activities outlined in the conservation plan. Certain activities will be automatically authorized statewide and at particular sites. Statewide activities automatically proposed to be authorized include the taking of chicks on paved or improved roads and in parking lots and take caused by fireworks located within one-half mile or more from plover nests or chicks. Additional proposed take automatically permitted at three sites includes: (1) Take from fireworks at Crane Beach, Ipswich; (2) take from unescorted essential vehicles on a specified portion of Crane's Beach; (3) take from unescorted vehicles on a specified portion of Plymouth Beach, Plymouth; and (4) take of chicks by unescorted vehicles on a specified portion of Sandy Neck, Barnstable.

Additional discretionary take may also be authorized at a limited number of sites that meet specific eligibility requirements. Landowners that choose to undertake such actions may apply to be included under the Division's proposed permit that will authorize the incidental take. Proposed authorized activities are: (1) Reduction of symbolically-fenced buffer areas around plover nests, applicable to one plover nest per site per year; (2) moving eggs from heavily-used pedestrian or vehicle access points; (3) limited use of escorted off-road vehicle caravans for recreational access during periods when unfledged chicks are present on the beach; and (4) limited use of vehicles for homeowner access after dark through areas with unfledged chicks.

Take of piping plovers primarily will occur either through direct mortality of chicks, harassment of chicks or adults, or mortality of eggs that occurs as the result of nest abandonment or inadequate incubation or nest defense. As a result of these takings, overall reproductive success will be reduced at individual sites, and adverse effects may occur to immediate habitats of individuals pairs or broods. However, the level of incidental take likely to occur will not reduce productivity enough to substantially slow progress toward recovery. Take that occurs as a result of a permit issued to the Division will not include mortality of adults, nor will actions undertaken within the scope of such a permit permanently degrade otherwise suitable habitat.

The Division has proposed to minimize and monitor the level of incidental take through a number of measures. Continued population growth over the duration of the permit should be ensured by conditioning the authorization of discretionary incidental take on maintaining average productivity of 1.5 chicks fledged per pair for the entire state, individual Management Units and individual sites. If statewide productivity falls below 1.5 chicks fledged per pair, incidental take authorized for the following year will be limited. The conservation plan encompasses a sufficiently large geographic area that should some sites experience adverse effects from environmental or demographic stochasticity, unsuccessful management, or larger incidental take than predicted, those set-backs may be balanced by more favorable conditions or results of management elsewhere in the planning unit. Finally, the proposed permit duration of three years will allow for a relatively rapid evaluation of the conservation plan in light of management results and changes in the overall status of the Massachusetts and New England plover populations that may occur in 2000, 2001 and 2002.

The 1996 Section 19(a)(1)(B) incidental take permit granted to the Division outlined eligibility requirements similar to those proposed in the current application. Due to a decrease in piping plover productivity in 1996, permit activities were not allowed to occur the following year in order to ensure the continued recovery of piping plovers in Massachusetts. Piping plover productivity also fell below the established eligibility criteria in 1997, again precluding the implementation of measures permitted in the 1996 Section 10 permit. The eligibility criteria proposed in the current Section 10(a)(1)(B) permit application provide a greater range of options than the previous permit. These options will allow greater flexibility to implement the portions of the proposed permit that will have the least impact on the recovery of the Massachusetts population of the piping plover.

Dated: May 11, 2000.

Mamie Parker,

Deputy Regional Director, Region 5.

[FR Doc. 00-12492  Filed 5-17-00; 8:45 am]

BILLING CODE 4310-55-M