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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

NOTICE: NOTICES

ACTION: Environmental statements; availability, etc.:

DOCUMENT ACTION: Notice of availability.

SUBJECT CATEGORY: 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 Construction and Operation of a Residential, Commercial, and/or Retail Development on Portions of the Approximately 70-acre GDF Property in Austin, Travis County, TX

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

DOCUMENT SUMMARY: GDF Realty Investments, Ltd., and Purcell Investments, L.P., (Applicants) have applied for an incidental take permit (TE171255) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) for the goldencheeked 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 70acre GDF property in Austin, Travis County, Texas.

SUMMARY: Incidental take permits—; Travis County, TX; golden-cheeked warbler,

SUPPLEMENTAL 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 nonjeopardy 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 federallylisted endangered species have been documented as occurring on portions of the 70acre property. These species are identified above.

Under the Proposed Alternative, the Service has included an option that includes onsite and offsite mitigation for impacts to the goldencheeked 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 70acre property. The proposed action on the 70acre property includes a development area of approximately 40.2 acres, an onsite 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 onsite mitigation land. It will be combined with a separate onsite 22.7acre acquisition and will be preserved and managed as part of the BCP in perpetuity. The proposed preserve (onsite mitigation land and 22.7acre
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acquisition) was designed to include most of the onsite area known to be occupied by the goldencheeked warbler. With respect to the five federallylisted karst invertebrates, the preserve was designed and configured to incorporate the remaining suite of biotic and abiotic factors needed to promote the integrity of fullyfunctioning 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 goldencheeked warbler and five federallylisted 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 (PRT838754, PRT841088, PRT841090, PRT841093, PRT841117, PRT841120, and PRT841125), 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 216acre 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 (TE027690) was never issued.

Since the June 2000 Federal Register Notice, approximately 146 acres of the former 216acre 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. [FR Doc. E725381 Filed 122807; 8:45 am]
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