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###### Department of the Interior

###### Fish And Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability.

# SUMMARY:

                        The Applicant has submitted three incomplete Habitat Conservation Plan (HCP) permit applications pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531*et seq.*) (Act). These permits were not processed because the applications did not meet either the statutory application criteria or the statutory issuance criteria.                     

The applicant initiated litigation over this project arguing that the Service has unconstitutionally “taken” his property without just compensation. The Service has taken the position that an acceptable plan could be produced and that a permit could be issued if an acceptable plan were submitted, but has decided that it is more efficient to draft a compliant HCP and issue the permit than to continue to litigate. This draft HCP is offered as part of his ITP application. The draft Finding of No Significant Impact (FONSI)/HCP made available by this notice were prepared by the Service based on information previously provided by the Applicant and other information acquired by the Service. The Applicant has been assigned permit number TE041642-0. The permit, which is for a period of 30 years upon approval, would authorize the incidental take of the threatened bald eagle (Haliateetus leucocephalus). The proposed take would occur as a result of the construction and occupancy of a single-family home in Fairfax County, Virginia. 

The Service has prepared the FONSI/HCP for the incidental take permit (ITP) application. This notice is provided pursuant to section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6). 

      ( print page 32960)    

# DATES:

Written comments on this draft FONSI/HCP should be received on or before July 19, 2001.

# ADDRESSES:

Persons wishing to review the FONSI/HCP may obtain a copy by written or telephone request to John Wolflin, U.S. Fish and Wildlife Service, 177 Admiral Cochrane Drive, Annapolis, MD 21401 (410-573-4500). Documents will be available for public inspection by written request or by appointment only during normal business hours (8:00 to 4:30) at the U.S. Fish and Wildlife Service, Annapolis, MD. Data or comments concerning the FONSI/HCP should be submitted in writing to the Project Leader, U.S. Fish and Wildlife Service Office, Annapolis, MD at the above address. Please refer to permit number TE041642-0 when submitting comments.

# FOR FURTHER INFORMATION CONTACT:

John Wolflin at the above U.S. Fish and Wildlife Service Office, Annapolis, MD.

# SUPPLEMENTARY INFORMATION:

## Background

Section 9 of the Act prohibits the “taking” of endangered and threatened species such as the bald eagle. However, the Service, under limited circumstances, may issue permits to take endangered or threatened wildlife species where the taking is incidental to, and not the purpose of, an otherwise lawful activity. Regulations governing permits for endangered species are at 50 CFR 17.22. 

*Applicant:*                     Mr. John Taylor plans to construct and sell a single-family home in an existing subdivision. After the initial judicial determination that the Service had effectively denied the inadequate applications submitted by the applicant, the Service has developed the draft FONSI/HCP that meets the statutory application and issuance criteria required for the issuance of this permit. Five alternatives were developed.                

Alternative 1, The No Action Alternative. Under this Alternative, the lot would remain in its existing naturally wooded condition. Since the lot would not be cleared for the construction of a single family home, this alternative would avoid all take of bald eagles and no ITP permit would be necessary. However, the stated purpose of acquiring the land by the applicant was to build a house and sell the lot. Therefore, this alternative would not satisfy the needs and purpose of the proposed project and was rejected. 

Under Alternative 2, the Proposed Action. The Service would issue a section 10(a)(1)(B) ITP for the take of bald eagles resulting from clearing, construction, and occupancy of the house. The proposed HCP includes implementation of a time of year restriction on development activities, measures to minimize impacts to on-site bald eagle habitat, protection of forested buffers on-site, and in addition to the minimization measures, a private conservation organization will provide/insure funding for off-site artificial nest construction to mitigate for the possible abandonment of the nest by the resident nesting eagles. 

Alternative 3 is the Alternate Development Configuration Alternative. If the local zoning authority does not issue the variances to the extent envisioned by this HCP, it might require that the house be placed further back on the lot thus reducing the amount of a front lot setback variance, or moving the house further forward, or turning the house at 90 degrees to comply with side lot setbacks. The Service will need to re-analyze the specific impacts on the bald eagles anticipated from the site plan as approved and determine whether or not it could still address the standards of minimization of impacts to the maximum extent practicable under this alternative. 

Alternative 4 is the Increased Impact Alternative. The applicant initially proposed placing a Mod-u-Kraf modular home comprising 1560 square feet on the site which would have entailed cutting the majority of the trees on the site and maintaining little or no vegetative buffer on the property. The applicant's initial and October, 1998 HCP's provided no specific site plan detailing the exact configuration he envisioned, no analysis of the impacts anticipated from development within 250 feet of the nest tree, and no specific mitigation or minimization proposals other than construction outside of the nesting season. Therefore, the Service determined that these requests for an HCP were incomplete and could not meet the issuance criteria of section 10(a)(2)(A) of the Act. The Service has developed Alternative 2 in order to fulfill the goal of constructing a house of at least 1560 square feet which would also minimize the impacts of normal human occupancy activities on the site which likely would disturb, harm or harass the bald eagles. 

                    Alternative 5 is the Conservation Acquisition Alternative under which the site would be acquired by a government, private association, or lands trust organization to be retained in its natural condition. Although the project site is located within                     1/2                     mile of the Mason Neck National Wildlife Refuge and county and state parks, the parcel is an isolated block that is less than                     1/2                     acre of habitat within a residential community, and therefore has not been considered a priority for acquisition by various public or private land protection programs or organizations or the Service's National Wildlife Refuge System.                 

## Public Comments Solicited 

The Service solicits written comments on the draft FONSI/HCP described. All comments received by the date specified above will be considered prior to approval of the FONSI/HCP. 

## Authority 

The authority for this action is section 10(a)(1)(B) of the Endangered Species Act, 16 U.S.C. 1539(a)(B). 

Dated: May 1, 2001. 

Richard O. Bennett, 

Acting Regional Director. 

[FR Doc. 01-15390 Filed 6-18-01; 8:45 am] 

BILLING CODE 4310-55-P