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###### Department of the Interior

###### Fish and Wildlife Service

# AGENCY:

Fish and Wildlife Service, Interior

# ACTION:

 Notice of availability.

# SUMMARY:

                        This notice advises the public and other agencies of the availability for review and comment of a Environmental Assessment/Habitat Conservation Plan (EA/HCP) and Implementing Agreement. On March 29, 2000 Magic Carpet Woods Association (Applicant) applied for an Incidental Take Permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act, 16 U.S.C. 1531,                         *et seq.*) from the U.S. Fish and Wildlife Service (Service). This notice is provided pursuant to section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6). An April 20, 2000 Notice made available for a permit to authorize the incidental take associated with harassment (                        *i.e.,*                         harm) of the pipping plover (                        *Charadrius melodus;*                         bird) which is federally listed as endangered. The take would occur as a result of residential construction adjacent to Lake Michigan beachfront in Leelanau Township, Leelanau County, Michigan. That application has been assigned permit number TE-025433.                    

Copies of the revised EA/HCP and Implementing Agreement may be obtained by making a request to the Regional Office address below. Comments on the EA/HCP must be submitted in writing. All comments received, including names and addresses, will become part of the public record and will be available for review pursuant to section 10(c) of the Act. The comment period is 30 days because the application was received prior to issuance of the “Five-Point Policy” (June 1, 2000; 65 FR 35242).

# DATES:

Written comments must be received on or before COB December 13, 2000.

# ADDRESSES:

 Persons wishing to review the documents may obtain copies by writing, telephoning, fax, or e-mail to either of the two Service positions listed in the following paragraphs. The EA/HCP is also available at the following Internet address: www/midwest.fws.gov/nepa/

Documents will be available for public inspection during normal business hours (8:00-4:30), at the U.S. Fish and Wildlife Service Regional Office in Fort Snelling, Minnesota, and at the East Lansing Field Office in East Lansing, Michigan. Written comments should be submitted to the Regional HCP Coordinator at the address or via FAX listed below. All comments received will become part of the administrative record and may be released to the public. Please refer to permit number TE-025433 when submitting comments.

Regional HCP Coordinator, U.S. Fish and Wildlife Services, 1 Federal Drive, Fort Snelling, MN 55111-4056, Telephone: 612/713-5343, Fax: 612/713-5292

Field Supervisor, U.S. Fish and Wildlife Service, East Lansing Field Office, 2651 Coolidge Rd., Suite 101, East Lansing, Michigan 48823-6316, Telephone: 517/351-2555 

# FOR FURTHER INFORMATION CONTACT:

 Mr. Peter Fasbender, Regional HCP Coordinator, U.S. Fish and Wildlife Service, Fort Snelling, Minnesota, telephone (612) 713-5343, or email peter_fasbender@fws.gov.

# SUPPLEMENTARY INFORMATION:

Section 9 of the Act and federal regulations prohibit “take” of fish or wildlife species listed as endangered or threatened. Take of listed fish or wildlife is defined under the Act to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. However, the Service, under limited circumstances, may issue permits to take listed species, provided such take is incidental to, and not the purpose of, an otherwise lawful activity. Regulations governing permits for threatened species are found in 50 CFR 17.32.

## Background

The proposed Magic Carpet Woods Association residential construction is located on approximately 91 acres at the north end of Kehl Road in Leelanau Township, Leelanau Township, Leelanau County, Michigan. The beachfront of the property is part of the Lake Michigan Cathead Bay shoreline. Magic Carpet Woods Association is requesting a 25-year incidental take permit for potential take (harassment) of the piping plover on the beach of the Association property. The beach/dune portion of the property is the only part potentially containing piping plover habitat. This area consists of open, unvegetated beach and grassy low dunes that abuts a forested portion. The beach/dune is narrow and averages about 85 feet wide.

                    Piping plovers have nested in recent years at the adjacent Leelanau State Park, although none nested there or elsewhere in Cathead Bay in 2000. No plovers have been known to nest on or as near as one-half mile of the Association beach, nor have they ever been recorded using the Association beach. The beach currently does not have characteristics of good nesting habitat. There may be potential for plovers to nest on the property in the future if an expanded plover population exhibits variation in acceptable breeding habitat characteristics or natural forces alter current beach characteristics. On July 6, 2000, the Service published a proposal to designate critical habitat for the piping plover. All of the Cathead Bay shoreline is included in a proposed 3.7 mile long unit potentially containing primary constituent elements of critical habitat. The open dune portion of the project site contains several hundred individual Pitcher's thistle (                    *Cirsium pitcheri*) plants, a threatened species.                

Piping plovers are known to be extremely sensitive to disturbance by human activity. Direct and indirect effects of human activity throughout the Great lakes and Atlantic coast breeding range is strongly implicated in the species decline that lead to its listing as an endangered species in 1985. The project involves construction of 13 single family residences within the forested portion of the property adjacent to and parallel with the one-half mile long beach. Broadwalk may be constructed through the vegetated dunes, but otherwise the project will not result in any construction on, or other physical alteration of the beach portion of the property. Construction of the proposed project would result in human activity along a section of beach presently associated with undeveloped land.

                    Potential take of piping plovers would occur through harassment of adults and chicks. The HCP provides conservation and protective measures to minimize and mitigate such take to a level that will not reduce productivity to slow progress toward recovery. The HCP provides for seasonally restructions of human presence on the beach, control of all pets during the critical nesting and rearing period, control of garbage,                           ( print page 67754)                        presence during selected periods of a piping plover steward, access to the beach by Service biologists or designees for annual monitoring on the property regardless of whether piping plovers next there, provide funding for a piping plover captive rearing program, and other measures. In the event piping plovers next on the property in the future, nests will be fully protected with predator exclosures, signing, monitoring and all other measures normally taken for next protection on public lands. The presence of Association residence owners is likely to eliminate unregulated trespass on the property. Take that may occur as a result of the permit issued, will not include direct mortality of adults or chicks.                

As a result of comments received on the original draft EA/HCP, the Service and Applicant have revised the EA/HCP. The Proposed Action consists of the issuance of an incidental take permit and implementation of the HCP. The revised EA considers four action alternatives and the “No Action” Alternative. The NEPA process will be completed after the comment period. After completing the NEPA process, the Service will evaluate the permit application (if appropriate to the selected Alternative), the HCP, and comments submitted thereon 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 magic Carpet Woods Association for the incidental take of the piping plover from human activity associated with residential development on the Association property. The final permit decision will be made no sooner than 30 days from the date of this notice.

Dated: November 6, 2000.

Charles M. Wooley,

Assistant Regional Director, Ecological Services, Region 3, Fort Snelling, Minnesota.

[FR Doc. 00-28900  Filed 11-9-00; 8:45 am]

BILLING CODE 4310-55-M