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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice. 

                    The Board of Water and Sewer Commissioners of the City of Mobile (“Board” or “Applicant”) has requested an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 (U.S.C. 1531                     *et seq.*), as amended (Act). The Applicant anticipates taking the threatened gopher tortoise (                    *Gopherus polyphemus*) over the next 99 years. The proposed taking is incidental to the establishment of a conservation bank to mitigate take of up to 128 tortoises for residential, commercial and other development by private property owners throughout Mobile County. Under the proposed plan, the Board will sell mitigation credits to private landowners seeking incidental take of occupied gopher tortoise habitat in Mobile County. The private landowners will pay a mutually agreeable mitigation fee to the Board and allow for the relocation of the affected tortoises to the conservation bank. For each tortoise taken, private landowners will be required to cover costs associated with protecting, managing, and monitoring 1.5 acres of habitat at the conservation bank.                 

                    A more detailed description of the mitigation and minimization measures to address the effects of the Project to the gopher tortoise is provided in the Applicant's habitat conservation plan (HCP), the Service's draft Environmental Assessment (EA), and in the                     **SUPPLEMENTARY INFORMATION**                     section below.                 

                    The Service announces the availability of a draft EA and HCP for the incidental take application. Copies of the draft EA and/or HCP may be obtained by making a request to the Regional Office (see                     **ADDRESSES**                    ). Requests must be in writing to be processed. This notice also advises the public that the Service has made a preliminary determination that issuing the ITP is not a major Federal action significantly affecting the quality of the human environment within the meaning of Section 102(2)(C) of the National Environmental Policy Act of 1969, as amended (NEPA). The preliminary Finding of No Significant Impact (FONSI) is based on information contained in the draft EA and HCP. The final determination will be made no sooner than 60 days from the date of this notice. This notice is provided pursuant to section 10 of the Act and NEPA regulations (40 CFR 1506.6).                 

The Service specifically requests information, views, and opinions from the public via this Notice on the federal action, including the identification of any other aspects of the human environment not already identified in the Service's draft EA. Further, the Service specifically solicits information regarding the adequacy of the HCP as measured against the Service's ITP issuance criteria found in 50 CFR Parts 13 and 17. 

                    If you wish to comment, you may submit comments by any one of several methods. Please reference permit number TE035340-0 in such comments. You may mail comments to the Service's Regional Office (see                     **ADDRESSES**                    ). You may also comment via the internet to “david_dell@fws.gov”. Please submit comments over the internet as an ASCII file avoiding the use of special characters and any form of encryption. Please also include your name and return address in your internet message. If you do not receive a confirmation from the Service that we have received your internet message, contact us directly at either telephone number listed below (see                     **FURTHER INFORMATION**                    ). Finally, you may hand deliver comments to either Service office listed below (see                     **ADDRESSES**                    ). Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the administrative record. We will honor such requests to the extent allowable by law. There may also be other circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and address, you must state this prominently at the beginning of your comments. We will not; however, consider anonymous comments. We                           ( print page 4037)                        will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.                 

# DATES:

                        Written comments on the ITP application, draft EA, and HCP should be sent to the Service's Regional Office (see                         **ADDRESSES**                        ) and should be received on or before March 19, 2001.                     

# ADDRESSES:

Persons wishing to review the application, HCP, and EA may obtain a copy by writing the Service's Southeast Regional Office, Atlanta, Georgia. Documents will also be available for public inspection by appointment during normal business hours at the Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or Field Supervisor, U.S. Fish and Wildlife Service, P. O. Drawer 1190, Daphne, Alabama 36526. Written data or comments concerning the application, or HCP should be submitted to the Regional Office. Please reference permit number TE035340-0 in requests of the documents discussed herein. 

# FOR FURTHER INFORMATION CONTACT:

                        Mr. David Dell, Regional HCP Coordinator, (see                         **ADDRESSES**                         above), telephone: 404/679-7313, facsimile: 404/679-7081; or Ms. Barbara Allen, Fish and Wildlife Biologist, Daphne Field Office, Alabama (see                         **ADDRESSES**                         above), telephone: 334/441-5181.                     

# SUPPLEMENTARY INFORMATION:

The gopher tortoise was listed in 1987 as a threatened species in the western part of its geographic range, west of the Tombigbee and Mobile Rivers in Alabama, Mississippi and Louisiana. The gopher tortoise is a burrowing animal that historically inhabited fire-maintained longleaf pine communities on moderately well drained to xeric soils in the Coastal Plain. These longleaf pine communities consisted of relatively open fire-maintained forests, without a closed overstory, with a well developed herbaceous plant layer of grasses and forbs. About 80% of the original habitat for gopher tortoises was lost by the time the species was listed due to conversions to urban and agricultural land use. On remaining forests, management practices converting longleaf pine to densely planted pine stands for pulpwood production, fire exclusion, and infrequently prescribed fire further reduced the open forest with grasses and forbs that tortoises need for burrowing, nesting, and feeding. Over 19,000 gopher tortoises have been estimated to occur in the listed range. The tortoise, however, is a long-lived animal with low reproductive rates. Remaining populations, though relatively widespread, are individually small, fragmented, and usually in poor habitat without adequate reproduction for a self-sustaining viable population. 

In Mobile County, Alabama, development and fragmentation of tortoise habitat are a significant threat to the remaining tortoise population of the project area. The Applicant proposes to establish a conservation bank on land owned by the Board to benefit the federally threatened gopher tortoise. This HCP provides a mechanism to address development threats to the tortoise, to provide private landowners in Mobile County with viable gopher tortoise mitigation alternatives, and to provide the Board with a financial incentive to manage its lands for the benefit of this species. 

Under section 9 of the Act and its implementing regulations, “taking” of endangered and threatened wildlife is prohibited. However, the Service, under limited circumstances, may issue permits to take such wildlife if the taking is incidental to and not the purpose of otherwise lawful activities. The Applicant has prepared an HCP as required for the incidental take permit application. 

Under this HCP, the Board is applying for a 10(a)(1)(B) permit which would then be extended to private landowners who have tortoises on their property through a Certificate of Inclusion. Those landowners would purchase mitigation credit(s) from the Board after review and approval by the Service. After allowing for the relocation of affected tortoises onto Board property, they would have authorization to develop their property. The 222-acre conservation bank site occurs on lands (over 7,000 acres in total) owned by the Board that are permanently protected from development and that surround Big Creek Land in western Mobile County. A significant proportion of the site contains mature longleaf pine forest on well-drained, sandy soils. The site is in need of management activities that restore more open, longleaf-pine canopy conditions, reduce hardwood encroachment, reduce invasive exotic species, and restore more natural fire regimes. In addition, the resident tortoise population is significantly depleted, thus requiring translocation of tortoises to the site in order to establish a viable population. Should conservation banking prove to be a viable strategy for the Board and conservation of the tortoise, the Board is open to considering devoting more of the remaining 7,000 acres to serve as a gopher tortoise conservation bank. 

The EA considers the environmental consequences of 5 alternatives, including the proposed action and no-action alternatives. The proposed action alternative is the issuance of a permit under section 10(a) of the Act that would authorize incidental take of up to 128 gopher tortoises from private landowners who would be required to obtain a certificate of inclusion from the Board. The proposed action would require the Applicant to implement their Habitat Conservation Plan which requires that for each tortoise taken, 1.5 acres of longleaf pine habitat at the conservation bank is restored, protected, and managed for a period of 99 years. Under the no-action alternative, the Incidental Take Permit would not be issued. There will be no concerted effort to restore, enhance, or maintain longleaf pine forest at the conservation bank owned by the Board. There is no legal obligation under the ESA for private property owners to actively manage their property for the benefit of the gopher tortoise. In the absence of this proposed ITP, much of the occupied habitat in Mobile County will be lost to benign neglect as the canopy becomes too dense to support gopher tortoises. The third alternative is to offer financial incentives to protect existing gopher tortoise habitat on private lands. This would be a useful approach for those landowners with sizeable tracts of fire-maintained longleaf pine that contain occupied habitat or habitat that is readily restorable. For this reason, in part, the Service maintaines the ability to deny Certificates of Inclusion under this HCP when the agency deems that large tracts of occupied, suitable gopher tortoise habitat in Mobile County can and should be addressed through other appropriate means. The fourth alternative is to require on-site mitigation by issuing individual HCPs to landowners in Mobile county, requiring each to mitigate such take on the property where take occurs. 

As stated above, the Service has made a preliminary determination that the issuance of the ITP is not a major Federal action significantly affecting the quality of the human environment within the meaning of section 102(2)(C) of NEPA. This preliminary information may be revised due to public comment received in response to this notice and is based on information contained in the draft EA and HCP. 

                    The Service will also 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                           ( print page 4038)                        results of the biological opinion, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP.                 

Dated: January 9, 2001. 

Sam D. Hamilton, 

Regional Director. 

[FR Doc. 01-1303 Filed 1-16-01; 8:45 am] 

BILLING CODE 4310-55-P