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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice. 

# SUMMARY:

                        Sundown Development and Realty (Applicant) is requesting an incidental take permit (ITP) for a period of five years, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531*et seq.*). The Applicant anticipates take of three federally threatened Florida scrub-jays (                        *Aphelocoma coerulescens*) (scrub-jay) incidental to clearing approximately 0.70 acre of scrub-jay foraging and roosting habitat in preparation for construction of a combination of office space and three-story townhomes on a 5.25-acre parcel (project). The anticipated take would occur in section 30, Township 40 South, Range 43 East, Village of Tequesta, Palm Beach County, Florida. The Applicant's Habitat Conservation Plan (HCP) describes the mitigation and minimization measures proposed to address the effects of the project on the scrub-jay. These measures are also outlined in the                         **SUPPLEMENTARY INFORMATION**                         section below.                     

                        The Service announces the availability of the Applicant's ITP application, HCP and Environmental Assessment (EA). Copies of the application, HCP and EA may be obtained by making a request to the Southeast Regional Office (see                         **ADDRESSES**                        ). Requests must be in writing to be processed. This notice is provided pursuant to section 10 of the Act and National Environmental Policy Act (NEPA) regulations (40 CFR 1506.6).                     

# DATES:

                        Written comments on the ITP application, EA, and HCP should be sent to the Service's Southeast Regional Office (see                         **ADDRESSES**                        ) and should be received on or before January 3, 2006.                     

# ADDRESSES:

Persons wishing to review the application, EA, and HCP, may obtain a copy by writing the Service's Southeast Regional Office, at the address below. Please reference permit application number TE095780-0 in such requests. Documents will also be available for public inspection by appointment during normal business hours at either the Southeast Regional Office, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or at the South Florida Ecological Services Office, U.S. Fish and Wildlife Service, 1339 20th Street, Vero Beach, Florida 32960-3559 (Attn: Field Supervisor). 

# FOR FURTHER INFORMATION CONTACT:

                        Mr. David Dell, Regional HCP Coordinator, Southeast Regional Office (see                         **ADDRESSES**                         above), at 404-679-7313, facsimile: 404-679-7081; or Ms. Constance Cassler, Fish and Wildlife Biologist, South Florida Ecological Services Office (see                         **ADDRESSES**                         above), at 772-562-3909, extension 243.                     

# SUPPLEMENTARY INFORMATION:

                    If you wish to comment, you may submit comments by any one of several methods. Please reference permit application number TE095780-0 in such comments. You may mail comments to the Service's Southeast 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 e-mail message. If you do not receive a confirmation that we have received your e-mail message, contact us directly at either telephone number listed above (see                     **FOR FURTHER INFORMATION CONTACT**                    ). Finally, you may hand-deliver comments to either Service office listed above (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 addresses 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 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.                 

The scrub-jay is geographically isolated from other subspecies of scrub-jays found in Mexico and the western United States. The scrub-jay is found exclusively in peninsular Florida and is restricted to xeric uplands (well drained, sandy soils supporting a growth of oak dominated scrub). Increasing urban and agricultural development has resulted in habitat loss and fragmentation, which has adversely affected the distribution and numbers of scrub-jays. The total estimated population is between 7,000 and 11,000 individuals. 

                    Although little is known about the historic distribution and abundance of scrub-jays in southeastern Florida, it can be reasonably assumed that this species once occupied most of the non-forested xeric uplands along the Atlantic Coast                           ( print page 66457)                        Ridge of southeastern Florida. Martin and northern Palm Beach counties have experienced tremendous human population growth over the last 100 years, and as a result, much of the natural environment in this area has been altered. Much of the commercial and residential development has occurred on the xeric uplands that historically supported scrub-jay populations. What remains is largely degraded, due to the invasion by exotic species and by interruption of the natural fire regime, which is needed to maintain xeric uplands in conditions suitable for scrub-jays.                 

Scrub-jays using the project site are part of a larger complex of this species that occupy xeric uplands of southeastern Florida, from northern Palm Beach County northward to the St. Lucie River in northeastern Martin County. The largest assemblage of scrub-jays in this metapopulation occurs in and around Johnathan Dickinson State Park. The continued survival and recovery of scrub-jays in this area is dependent on the maintenance of suitable habitat and the restoration of unsuitable habitat. 

Scrub-jay use of the project site and adjacent lands has been assessed on several occasions. Scrub-jay surveys were conducted by Environmental Services, Inc., from June 30 to July 3, 2003. A Service biologist confirmed the survey results and delineated additional habitat being utilized for foraging by three scrub-jays on November 19, 2003. The project site comprises areas of bare sand, concrete pads, native and exotic vegetation, and can be classified as disturbed upland scrub. Scattered sandy patches interspersed with low growing vegetation provide foraging and caching opportunities for scrub-jays. 

The project site is surrounded by Great American RV on the south and by Cypress Manor Apartments on the west. The project site and surrounding lands have been negatively influenced by previous land clearing, development, and invasion by exotic species. Due to the proximity of the project site to existing residential development and urban infrastructure, fire has been actively excluded due to safety concerns. As a result, the condition of the xeric habitat within the project site is degraded; periodic fire or land management practices that mimic fire are required to maintain habitat conditions suitable for the scrub-jay. 

Land clearing in preparation for a combination of office space and three-story town homes would destroy habitat and could result in death of, or injury to, scrub-jays, incidental to the carrying out of these otherwise lawful activities. Habitat alteration associated with the proposed development would reduce the availability of foraging habitat for scrub-jays. 

The Applicant's HCP and the Service's EA describe the following minimization and mitigation strategy which would be employed by the Applicant to offset the impacts of the project to the scrub-jay: 
    - The Applicant agrees to contribute $109,830.97 to the Florida Scrub Jay Conservation Fund. As discussed in the Applicant's HCP, this amount will purchase 1.4 acres of scrub habitat (providing a 2:1 compensation ratio) at current land values, plus a fee for perpetual management, along with a 5 percent administrative (overhead) fee.
    - The Applicant agrees to plant a 0.20 acre portion of the landscape buffer, required by local building codes, with scrub vegetation as part of the Casa del Sol project.
    - The Applicant agrees that no land clearing activities will take place during the scrub-jay breeding or nesting season (March-June).

The EA considers the environmental consequences of one action alternative that would require issuance of an ITP and two alternatives in which an ITP would not be issued. The preferred alternative would result in the loss of about 0.70 acre of occupied scrub-jay habitat according to the HCP as submitted and described above. Under the proposed alternative, as mitigation, the Applicant would contribute funding for scrub-jay conservation. The Applicant's contribution to the Florida Scrub Jay Conservation Fund would be used to acquire and manage scrub-jay habitat in other areas in Palm Beach County, Florida and to help ensure the long-term survival of viable populations of the species. 

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 based on our consideration of public comments received in response to this notice and is based on information contained in the 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 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. 

Noreen Walsh, 

Acting Regional Director, Southeast Region. 

[FR Doc. 05-21799 Filed 11-1-05; 8:45 am] 

BILLING CODE 4310-55-P