Receipt of a Request To Amend the Woodlands' 10(a)(1)(B) Permit for Incidental Take of the Bald Eagle

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of availability; request for comments.

SUMMARY:

The Woodlands Operating Company, L.P., has requested an amendment to the incidental take permit pursuant to Section 10(a) of the Endangered Species Act (Act) issued by the U.S. Fish and Wildlife Service (Service) on August 23, 2002 under permit number TE-048649. The permit authorizes incidental take of the threatened bald eagle (Haliaeetus leucocephalus) as a result of the otherwise lawful development of the East Lake Area of The Woodlands, Montgomery County, Texas. The requested amendment would authorize incidental take at all nests built by the pair of bald eagles whose territory is on the East Lake Area of the Woodlands and that a 330 foot management zone be established around each active nest site.

DATES:

To ensure consideration, written comments must be received on or before September 8, 2004.

ADDRESSES:

Persons wishing to review the application may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. In addition, the amendment application will be available for public inspection by written request, by appointment only, during normal business hours (8 to 4:30) at the Service's Clear Lake Ecological Services Field Office, 17629 El Camino Real, Suite 211, Houston, Texas 77058 (281/286-8282). Written comments concerning the application should be submitted to the Field Supervisor, U.S. Fish and Wildlife Service, Houston, Texas, at the above address. Please refer to the amendment to TE-048649 when submitting comments.

FOR FURTHER INFORMATION CONTACT:

Edith Erfling at the U.S. Fish and Wildlife Service, Clear Lake Ecological Services Field Office, 17629 El Camino Real, Suite 211, Houston, Texas 77058 (281/286-8282).

SUPPLEMENTARY INFORMATION:

Section 9 of the Act prohibits the “taking” of endangered species such as the bald eagle. 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.

Background

A pair of bald eagles were discovered in December of 1999 nesting on the east shore of Lake Woodlands, an amenity lake created for The Woodlands development. A Habitat Conservation Plan was developed and approved that addressed the measures the Applicant proposed to minimize and mitigate for the anticipated take and an incidental take permit was issued on August 23, 2002.

In early 2004, the Permittee discovered that the nesting pair of bald eagles that was the subject of the original permit action had constructed a second nest site approximately 1/4 mile south of the previous nest in an area of existing and ongoing development activity. Water lines, sanitary sewer lines, and storm sewer lines were installed within 200-300 feet of the new nest site presumably while the eagles were building the nest. The new nest is also located approximately 700 feet from Woodlands Parkway, which is used by 48,000 cars per day. As of May 2004, two eaglets had fledged from the new nest and have been seen perching in trees overlooking the on-going construction activity.

There was no construction activity or other known disturbance within 1500 feet of the old nest tree, which may have caused the pair of eagles to move to a new site. A hole was observed in the existing nest at the end of the 2003 nesting season.

Applicant: The Woodlands is a 28,000-acre master-planned new community development, located approximately 30 miles north of Houston, Montgomery County, Texas. The current population of The Woodlands is approximately 63,000 residents. At build-out, the total population is expected to reach 110,000 residents. This action may result in the abandonment of the nest site. The Permittee proposes to compensate for this incidental take by agreeing to provide buffers between forested areas and development as well as funding a bald eagle research project.

Pursuant to the June 10, 2004, order in Spirit of the Sage Council v. Norton, Civil Action No. 98-1873 (D. D.C.), the Service is enjoined from approving new section 10(a)(1)(B) permits or related documents containing “No Surprises” assurances until such time as the Service adopts new permit revocation rules specifically applicable to section 10(a)(1)(B) permits in compliance with public notice and comment requirements of the Administrative Procedure Act. This notice concerns a step in the review and processing of a section 10(a)(1)(B) permit and any subsequent permit issuance will be in accordance with the Court's order. Until such time as the Service's authority to issue permits with “No Surprises” assurances has been reinstated, the Service will not approve any incidental take permits or related documents containing “No Surprises” assurances.