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Notice of Availability of Documents associated With Proceedings Pursuant To Remand Involving the Incidental Take Permit Issued to Waterman's Realty Co./Winchester Creek Limited Partnership for the Home Port on Winchester Creek Habitat Conservation Plan

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Fish and Wildlife Service, Department of the Interior.


Notice of availability.


Waterman's Realty Company/Winchester Creek Limited Partnership was issued an Incidental Take Permit (ITP), permit number TE006310, on May 13, 1999, for incidental take of the Delmarva fox squirrel. The U.S. Fish and Wildlife Service (Service) announces that it has completed the process required to implement the remand ordered by the United States Court of Appeals for the District of Columbia Circuit and that a final decision document is available. The Service has determined that no changes to the Home Port incidental take permit are required as a result of the updated analysis presented in the decision document.


Persons wishing to review the Service's final decision document may obtain a copy at http://Start Printed Page​r5cbfo or by written or telephone request to John Wolflin, U.S. Fish and Wildlife Service, 177 Admiral Cochrane Drive, Annapolis, Maryland 21401, 410-573-4573.

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John Wolflin at the above Service Office, Annapolis, Maryland.

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On May 13, 1999, the Service issued an ITP for incidental “take” of the Delmarva fox squirrel. The ITP was issued pursuant to Section 10 of the Endangered Species Act (ESA), § 10(a)(2)(B), 16 U.S.C. 1539(a)(2)(B), and its implementing regulations at 50 CFR 17.22(b)(1).

On September 7, 1999, a neighbor to the proposed development (Gerber) and Defenders of Wildlife filed suit in Federal district court alleging violations of the National Environmental Policy Act, the ESA and the Administrative Procedure Act related to issuance of the ITP for the Home Port on Winchester Creek Habitat Conservation Plan.

The District Court for the District of Columbia granted summary judgment on all counts in favor of the Service on May 15, 2001. See Gerber v. Babbitt, 146 F.Supp.2d 1 (D. D.C. 2001). On appeal, the U.S. Court of Appeals for the D.C. Circuit remanded the matter to the District Court with instructions to remand to the agency to address two issues. See id. at 184. Specifically, the Court of Appeals held that the Service should have made a map of the mitigation area available during the public comment period and should have made an independent finding as to whether a possible project change identified in the record (the “Reduced Take Alternative”) was practicable.

Pursuant to the remand, the Service conducted an independent analysis which was reflected in the draft document entitled “Draft—Assessment of Practicability of the Reduced Take Alternative on Remand.” That document, in addition to the map, were made available for a 60-day public comment period starting May 9, 2003, (see 68 Fed. Reg. 25058). The Service received two comment letters, one from Mr. Gerber and one from Defenders of Wildlife. The Service has reviewed and considered those comments and has prepared a final decision document entitled “U.S. Fish and Wildlife Service's Decision Regarding the Incidental Take Permit (TE006310) to Maureen D. Waterman Following Remand” which includes the Service's responses to the comments received and is now available for public review at the address listed above.


The primary author of this notice is Glenn Smith, Assistant Coordinator, Division of Endangered Species, Northeast Region, U.S. Fish and Wildlife Service.

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Authority: The authority for this action is Section 10 of the Endangered Species Act (ESA), § 10(a)(2)(B), 16 U.S.C. 1539(a)(2)(B), and its implementing regulations at 50 CFR 17.22(b)(1).

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Dated: August 28, 2003.

Richard O. Bennett,

Acting Regional Director, Region 5, Fish and Wildlife Service.

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[FR Doc. 03-22608 Filed 9-2-03; 10:53 am]