Endangered and Threatened Wildlife and Plants: Notice of Availability and Opening of Comment Period for an Environmental Assessment/Habitat Conservation Plan and Receipt of an Application for an Incidental Take Permit for the Delmarva Fox Squirrel in Association with Home Port on Winchester Creek Development Project, Queen Anne's County, Maryland

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants: Notice of

Availability and Opening of Comment Period for an Environmental

Assessment/Habitat Conservation Plan and Receipt of an Application for

an Incidental Take Permit for the Delmarva Fox Squirrel in Association

with Home Port on Winchester Creek Development Project, Queen Anne's

County, Maryland

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.

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SUMMARY: This notice advises the public that Waterman Realty Company,

Winchester Creek Limited Partnership has applied to the U.S. Fish and

Wildlife Service for an incidental take permit pursuant to section

10(a)(1)(B) of the Endangered Species Act of 1973, as amended. The

application has been assigned permit number TE006310-0. The proposed

permit would authorize the incidental take of a Federally endangered

species, the Delmarva fox squirrel (Sciurus niger cinereus) known to

occur on property owned by the Applicant in Grasonville, Queen Anne's

County, Maryland. The proposed taking is incidental to the planned

housing and road construction and subsequent occupancy activities of

Home Port on Winchester Creek Housing Development on approximately 56

acres owned by WCLP. The permit would be in effect for 50 years.

The Service announces the receipt of the WCLP ITP application and

the availability of the proposed Home Port on Winchester Creek Housing

Development Habitat Conservation Plan and draft Implementing Agreement

which accompanies the ITP application, for public comment. In addition,

the Service also announces the availability of a draft Environmental

Assessment for the proposed issuance of the incidental take application

and signing of the agreement. This notice is provided pursuant to

section 10(c) of the Act and National Environmental Policy Act of 1969

regulations (40 CFR 1506.6).

The Service will evaluate the application, associated documents,

and comments submitted thereon to determine whether the application

meets the requirements of NEPA regulations and section 10(a) of the

Act. If it is determined that the requirements are met, a permit will

be issued for the incidental take of the DFS. The final NEPA and permit

determinations will not be completed until after the end of the comment

period and will fully consider all public comments received during the

comment period.

The Service specifically requests comments on the appropriateness

of the ``No Surprises'' assurance contained in this application, should

the Service determine that an ITP will be granted and based upon the

submitted HCP. Although not explicitly stated in the HCP, the Service

has, since August 1994, announced its intention to honor a ``No

Surprises'' Policy for applicants seeking ITPs. Copies of the Service's

``No Surprises'' policy may be obtained by making a written request to

the Regional Office (see ADDRESSES). In the event of unforeseen or

extraordinary circumstances affecting the DFS. WCLP will not be

required to provide additional mitigation measures. If the Service

makes a finding of extraordinary circumstances, which warrants

requiring additional mitigation or compensation, the primary

responsibility rests with the Federal government. The Service is

soliciting public comments and review of the applicability of the ``No

Surprises'' Policy to this application and HCP. All comments received,

including names and addresses, will become part of the official

administrative record and may be made available to the public.

DATES: Written comments on the permit application, HCP, IA and EA

should be sent to the Chesapeake Bay Field Office (see ADDRESSES) and

should be received on or before February 1, 1999.

ADDRESSES: Persons wishing to review the permit application, HCP, EA,

and IA may obtain a copy by writing the Service's Chesapeake Bay Field

Office, 177 Admiral Cochrane Drive, Annapolis, MD 21401. Requests for

the documentation must be in writing to be processed. Written data or

comments concerning the permit application, EA, HCP, and/or IA should

also be addressed to the Field Supervisor, U.S. Fish and Wildlife

Service, Chesapeake Bay Field Office, Annapolis, Maryland. Please refer

to permit #TE006310-0 when submitting comments. Documents will be

available for public inspection by written request, by appointment

only, during normal business hours (8:00 to 4:30). Requests for the

documentation of the ``No Surprises'' policy should be addressed to the

U.S. Fish and Wildlife Service, Region 5, 300 Westgate Center Drive,

Hadley, Massachusetts, 01035-9589, ATTN: Endangered Species Program.

FOR FURTHER INFORMATION CONTACT:

Mr. John Wolflin or Ms. Keren Giovengo, Chesapeake Bay Field Office

(see Addresses above), 410-573-/4574/4538.

SUPPLEMENTARY INFORMATION: Section 9 of the Act and Federal regulation

prohibits the ``taking'' of a species listed as endangered or

threatened. Under the Act, the term ``take'' means to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect listed

wildlife, or to attempt to engage in any such conduct. The Service may,

under limited circumstances, issue permits to ``incidentally take''

listed species, if such taking is incidental to, and not the purpose

of, otherwise lawful activities. Regulations governing permits for

endangered species are promulgated in 50 CFR 17.22.

Background

The DFS is a southeastern subspecies of Sciurus niger, a species

found naturally throughout the eastern United States. Historically, DFS

were distributed throughout the Delmarva peninsula and into

southeastern Pennsylvania and southern New Jersey, but these squirrels

now persist naturally in only four Maryland counties: Queen Anne's,

Talbot, Dorchester, and Kent (historic transplant). Although

quantitative population data are scant, DFS may be locally abundant in

mature pine and mixed hardwood forest in these counties: however, this

species is typically observed in low densities, and populations may be

adversely affected by reductions in numbers of only a few individuals.

In addition to remnant natural populations. DFS translations have

figured prominently in the recovery program, and DFS have been

reintroduced to 17 sites within their historical range. Although it

appears that squirrel colonies have been successfully established at 11

of these sites, more assessment and investigation is needed to verify

their status.

Owing to he disappearance of the DFS from 90% of its former range,

the DFS was listed as Federally endangered on March 11, 1967 (32 FR

4001). Although exact causes are unknown, the dramatic decline is

attributed to habitat destruction primarily through forest management

practices and urbanization (residential and commercial development)

throughout its range. Historically, overhunting of DFS may have been an

additional cause.

Two DFS sightings has been documented on the Home Port on

Winchester Creek Housing Development

[[Page 72322]]

site. In addition, DFS sightings have been documented directly adjacent

to the site on adjacent property. Additional documented occurrences of

DFS in the nearby area are approximately 1-3 miles away on private land

within Gransonville and adjacent Queenstown, Maryland.

The WCLP has applied to the Service for an incidental take permit

pursuant to Section 10(a) of the Act. The Applicant proposes to

implement an HCP for the DFS that will allow the home and road

construction and subsequent occupancy activities in DFS habitat. The

Applicant's proposed development may result in take, as defined in the

Act and its implementing regulations, of listed species. Authorized

take would only affect DFS; take of other federally-listed species is

specifically excluded from the proposed action. This permit would

authorize the incidental take of DFS at Home Port on Winchester Creek

Housing Development trough otherwise lawful activities, specifically

the planned home and road construction and subsequent occupancy

activities, occurring in DFS habitat. The HCP and permit would be in

effect for 50 years upon issuance. Included in the application is an

HCP detailing the activities that would result in incidental take and

describing measures that mitigate, minimize and monitor the amount of

take. The application also includes an IA and EA. Homeowners that

undertake such actions will be included under the WCLP's proposed

permit that will authorize the incidental take.

The Applicant proposes the construction and subsequent occupancy of

Home Port on Winchester Creek Housing Development in Grasonville,

Maryland, for economic proposes. The design of the development project

consists of 16 residential homes on approximately 56 acres of mixed

forested/agricultural habitat. Approximately 25 acres of the site is

forested, with approximately 27 acres of the site in agricultural

habitat. The project site is bordered on the shoreline by a forested

buffer with the majority of acreage in the interior of the property

consisting of agricultural fields. A large stand of mature forest lies

in the southern corner of the property and includes both upland and

nontidal wetlands.

The anticipated incidental take will be limited to the permanent

loss of habitat on 0.50 acres, and the degraded/disturbed habitat on

9.6 acres, with species present, being harmed or harassed. In addition,

anticipated incidental take will be limited to harm of up to 15 DFS

within the 50-year ITP period, that may be associated with vehicular

strikes associated with any construction and subsequent residential

occupancy activities within the subject property.

The WCLP has agreed to implement the following measures to

minimize, mitigate and monitor impacts that may result from incidental

take of the DFS: (a) implement an education and public awareness

program for construction workers, contractors, and homeowners: (2)

implement a maximum speed limit of 15 mph for vehicles and equipment

(includes construction workers, contractors, and homeowners: (3)

request the installation of DFS road sings, three-way stop signs, and

two-way stop signs in order to minimize potential vehicles strikes of

DFS: (4) maintain specified areas adjacent to road sides/edges and

forest edges as an open area for purpose of providing visibility and

deterrence to DFS movement to minimize vehicle strike: (5) record Deeds

of Open Space and Environmental Easements, a Declaration of Covenants.

Conditions and Restrictions, 1A and the Record Plat in the land records

of Queen Anne's County that establishes specific limits of disturbances

and sets buffers for forested habitat for each lot to protect DFS from

human disturbances: (6) implement, enforce, and obey regulations

pertaining to restraint and control of domestic pets to minimize

harassment or mortality of DFS: (7) have a contact representative on

site during construction activities and an additional contact

representative with the Homeowner's Association. In addition fencing

(temporary during construction activities, permanent for home occupancy

activities) will be erected in order to establish specific limits of

disturbance and buffers: (8) report dead and/or injured DFS to USFWS:

(9) if necessary, relocate any DFS found in construction area: (10)

prohibit trash dumping except into containers, igniting open-air fires,

discharge of firearms on site during construction, and unleashed pets

on site during construction activities: (11) prohibit unleashed

domestic pets outside of residences or fences: and (12 prohibit small

game hunting (excluding waterfowl). In addition, WCLP proposes to fund

the maintenance and restoration or enhancement of approximately 5 acres

of suitable DFS habitat in the HCP area, contribute to a trust fund and

other long-term mechanism to ensure successful implementation of

restoration activities, and to place under conservation restrictions

approximately 31 areas of off-site habitat as identified in the HCP.

The EA considers the environmental consequences of three

alternatives, including the proposed action, a no-action alternative,

and a no-take determination alternative. The proposed action

alternative is the issuance of a permit under Section 10(a) of the Act

that would authorize incidental take of the DFS that may occur in the

habitats of Home on Winchester Creek Development, and implementation of

the HCP and IA as submitted by the Applicant. The proposed action would

require the Applicant to implement their HCP. The HCP provides

mitigation measures for the proposed incidental taking including

habitat enhancement, permanent protection of an off-site parcel, and

contribution to a trust fund. The HCP provides a funding mechanism for

these mitigation measures. Under the no-action alternative, the

Applicant would not develop the proposed development site in Queen

Anne's County and thus avoid the take of DFS. No ITP would be deemed

necessary or issued. The no-take determination alternative would entail

impacts as those described for the proposed action, however, ``taking''

of DFS would occur without minimization or mitigation of take. Thus,

the number of DFS taken would be unrestricted and eventual reduction in

the local population would be likely.

The Service provides this notice pursuant to section 10(c) of the

Act. The Service will 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 evaluation of the permit application,

the NCP, EA, IA and comments submitted thereon, will be used in the

final analysis 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 the WCLP for the incidental take of

DFS during the proposed construction and subsequent occupancy of Home

Port on Winchester Creek Housing Development. We will make the final

permit decision no sooner than 30 days from the date of this notice.

Dated: December 28, 1998.

Ronald E. Lambertson,

Regional Director, Region 5.

[FR Doc. 98-34673 Filed 12-30-98; 8:45 am]

BILLING CODE 4310-55-M