E7-25381. Notice of Availability of a Draft Environmental Assessment / Habitat Conservation Plan and Receipt of Application for Issuance of a Permit for Incidental Take of the Golden-Cheeked Warbler and Five Karst Invertebrates During the ...

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of availability.

SUMMARY:

GDF Realty Investments, Ltd., and Purcell Investments, L.P., (Applicants) have applied for an incidental take permit (TE-171255) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) for the golden-cheeked warbler (Dendroica chrysoparia) and five karst invertebrates: Tooth Cave spider (Neoleptoneta myopica), Bone Cave harvestman (Texella reyesi), Tooth Cave pseudoscorpion (Tartarocreagris texana), Kretschmarr Cave mold beetle (Texamaurops reddelli), and Tooth Cave ground beetle (Rhadine persephone). The proposed take would occur as the result of construction and operation of a residential, commercial, and/or retail development with associated streets and utilities on portions of the approximately 70-acre GDF property in Austin, Travis County, Texas.

DATES:

To ensure consideration, written comments must be received on or before February 29, 2008.

ADDRESSES:

Persons wishing to review the Environmental Assessment and Habitat Conservation Plan (EA/HCP) may obtain a copy by written or telephone request to Cyndee Watson, U.S. Fish and Wildlife Service (Service), 10711 Burnet Road, Suite 200, Austin, Texas 78758, (512/490-0057 ext. 223), or on the Web at http://www.fws.gov/​southwest/​es/​austintexas/​. Documents will be available for public inspection by written request, or by appointment only during normal business hours (8 a.m. to 4:30 p.m.) at the U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas. Comments concerning the issuance of this permit should be submitted in writing to the Field Supervisor, Adam Zerrenner, at the above address. Please refer to permit number TE-171255-0 when submitting comments.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

FOR FUTHER INFORMATION CONTACT:

Adam Zerrenner at the U.S. Fish and Wildlife Service Austin Office, 10711 Burnet Road, Suite 200, Austin, Texas 78758, (512/490-0057 ext. 248), or [e-mail].

SUPPLEMENTARY INFORMATION:

Section 9 of the Endangered Species Act of 1973, as amended (Act) prohibits the “taking” of endangered species. However, the Service, under limited circumstances, may issue permits to take endangered wildlife species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for endangered species are at 50 CFR 17.22. This notice is provided pursuant to section 10(c) of the Endangered Species Act and National Environmental Policy Act regulations (40 CFR 1506.6).

The Service has prepared the EA/HCP for the incidental take application. A determination of jeopardy or non-jeopardy to the species and a decision pursuant to the National Environmental Policy Act (NEPA) will not be made until at least 60 days from the date of publication of this notice. This notice is provided pursuant to Section 10(c) of the Act and National Environmental Policy Act regulations (40 CFR 1506.6).

Applicant: GDF Realty Investments, Ltd. (Mr. R. James George) and Purcell Investments, L.P. (Dr. Fred Purcell) own approximately 70 acres, a portion of which is proposed for residential, commercial and/or retail development. These 70 acres are divided into two separate tracts and are located near the northwest corner of Ranch Road 620 and Ranch Road 2222, on the northwest side of Austin, Travis County. Six federally-listed endangered species have been documented as occurring on portions of the 70-acre property. These species are identified above. [?USGPO Galley End:?]

Under the Proposed Alternative, the Service has included an option that includes on-site and off-site mitigation for impacts to the golden-cheeked warbler and karst invertebrates.

The Proposed Alternative includes the issuance of a permit under section 10(a)(1)(B) of the Act to authorize incidental take of the species listed above during the construction and operation of a residential, commercial, and/or retail development with attendant roads and utilities on portions of the 70-acre property. The proposed action on the 70-acre property includes a development area of approximately 40.2 acres, an on-site preserve (mitigation) of approximately 7 acres, and sale of approximately 22.7 acres to Travis County or other similar entity to be protected and managed as part of the Balcones Canyonlands Preserve (BCP).

Under the Proposed Alternative, the Applicants will provide (fee simple or conservation easement) the on-site mitigation land. It will be combined with a separate on-site 22.7-acre acquisition and will be preserved and managed as part of the BCP in perpetuity. The proposed preserve (on-site mitigation land and 22.7-acre acquisition) was designed to include most of the on-site area known to be occupied by the golden-cheeked warbler. With respect to the five federally-listed karst invertebrates, the preserve was designed and configured to incorporate the remaining suite of biotic and abiotic factors needed to promote the integrity of fully-functioning karst ecosystems on which the endangered invertebrates depend.

The Habitat Conservation Plan (HCP) as part of the Proposed Alternative would substantially avoid impacts to the golden-cheeked warbler and five federally-listed karst invertebrates listed above. Impacts that cannot be avoided would be minimized and mitigated to the maximum extent practicable. The draft EA/HCP describes the impacts that would likely result to the affected species (the take); what steps the Applicants would take to avoid, minimize, and mitigate such impacts; the funding that would be made available to implement those steps; the alternative actions; and the options available within them.

Two other alternatives included in the EA/HCP are the “no action” alternative and the “past development alternatives considered.” The “no action” alternative assumes that the proposed development does not occur, and that no application for an incidental take permit is processed. The “past development alternatives considered” pertain to larger and smaller development areas that were discussed.

In accordance with the Act, and 50 CFR 17.22, in December 1997 the Applicants applied for seven section 10(a)(1)(B) incidental take permits (PRT-838754, PRT-841088, PRT-841090, PRT-841093, PRT-841117, PRT-841120, and PRT-841125), covering approximately 216 acres known as the Hart Triangle (former entire tract), Travis County, Texas. These permits would have allowed for take of the affected species associated with construction, operation, and occupation of residential and commercial development along with streets, utilities, and other improvements and facilities. However, the Service concluded that the seven HCPs would not have avoided, minimized, and mitigated for the potential impacts to the affected species to the maximum extent practicable. Therefore, because of this and other inadequacies in the applications, the Service denied all seven applications.

Subsequently, the Applicants filed suit against the Service claiming it had “taken” their property under the 5th Amendment. The plaintiffs and the Service agreed to enter mediation beginning in October 1999. After further HCP negotiations, the Service prepared a draft EA/HCP for development of portions of the 216-acre Hart Triangle. The draft EA/HCP was noticed in the Federal Register on June 02, 2000, but was never accepted by the Applicants, and therefore never finalized. The permit (TE-027690) was never issued.

Since the June 2000 Federal Register Notice, approximately 146 acres of the former 216-acre Hart Triangle have been sold and/or transferred to Travis County and are managed as part of the BCP. The incidental take permit application under consideration is for the remaining 70 acres.

Christopher T. Jones,

Acting Regional Director, Southwest Region, Albuquerque, New Mexico.