Skip to Content


Receipt of Application for Formal Modification of Issued Incidental Take Permit (ITP); Availability of an Environmental Assessment (EA); Baldwin County, AL

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble


Fish and Wildlife Service, Interior.




We, the Fish and Wildlife Service (Service), announce the availability of an EA and Habitat Conservation Plan (HCP)/Application for amendment to an issued incidental take permit. D & E Investments (permittee) requests an amendment to its ITP Number PRT-787172, which was issued in 1994 under the Endangered Species Act of 1973, as amended (Act), for the take of the Alabama beach mouse (Peromyscus polionotus ammobates) (ABM). The proposed take would be incidental to otherwise lawful activities, including the construction, occupancy, use, operation, and maintenance of a residential condominium at Kiva Dunes on the Fort Morgan Peninsula, in Baldwin County, Alabama.


We must receive your written comments on the ITP amendment application, modified HCP, and EA on or before July 13, 2006.


You may obtain hard or electronic copies of the application, HCP, and EA by sending a letter to the Service's Southeast Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: HCP Coordinator), or to the Service's Ecological Services Field Office, 1208-B Main Street, Daphne, Alabama 36526, or by sending an e-mail to Submit your written data or comments concerning the proposed amendment and/or the documents by mail to the Regional Office, by e-mail to, or by hand-delivery to either Service office. For more about how to request documents or submit comments, see “Public Comments Solicited” under SUPPLEMENTARY INFORMATION.

Start Further Info


Mr. Aaron Valenta, Regional Permit Coordinator (see ADDRESSES), telephone: (404) 679-4144; or Acting Field Supervisor, Daphne Field Office (see ADDRESSES), telephone: (251) 441-6181.

End Further Info End Preamble Start Supplemental Information


We announce the availability of an EA and HCP/Application for amendment to an issued incidental take permit. The permittee requests an amendment to ITP Number PRT-787172, which was issued on April 29, 1994, under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), for the take of the ABM. The proposed take would be incidental to otherwise lawful activities, including the construction, occupancy, use, operation, and maintenance of a residential condominium at Kiva Dunes on the Fort Morgan Peninsula, in Baldwin County, Alabama.

The amendment would allow the permittee to build a 12-story condominium with eight units per floor on four beachfront lots, instead of the four single-family residences, yet unbuilt, that we originally approved the permittee to build. The proposed action would involve approval of the modified HCP developed by the permittee, as required by section 10(a)(2)(B) of the Act, to minimize and mitigate for incidental take of the ABM, the threatened green sea turtle (Chelonia mydas), the threatened loggerhead sea turtle (Caretta caretta), and the endangered Kemp's ridley sea turtle (Lepidochelys kempi). A detailed description of the mitigation and minimization measures to address the effects of the project to the ABM and sea turtles is provided in the permittee's HCP and also in our EA.

Public Comments Solicited

We specifically request information, views, and opinions from the public via this notice, including the identification of any other aspects of the human environment not already identified in the EA. Further, we specifically solicit information regarding the adequacy of the HCP as measured against our ITP issuance criteria found in 50 CFR parts 13 and 17.

If you wish to comment, you may submit comments by any one of several methods (see ADDRESSES). If you contact us via e-mail, please include your name and return mailing address in your e-mail message. If you do not receive a confirmation from us that we have received your e-mail message, contact us directly by telephone (see FOR FURTHER INFORMATION CONTACT).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the administrative record. We will honor such requests to the extent allowable by law. There may also be other circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and address, you must state this prominently at the beginning of your comments. We will not, however, consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.


The ABM is one of eight subspecies of the old field mouse restricted to coastal dunes. We estimate that ABM historically occupied approximately 45 kilometers (28 miles) of shoreline. Monitoring (trapping and field observations) of the ABM population on other private lands that hold, or are under review for, an ITP during the last five years indicates that the Fort Morgan Peninsula remains occupied (more or less continuously) by ABM along its primary and secondary dunes, as well as the escarpment and suitable interior habitat.

The permittee owns approximately 252 acres of land south of Alabama Highway 180 on the Fort Morgan Peninsula. The site is approximately 12.5 miles west of the intersection of Highway 180 with Alabama Highway 59 in Gulf Shores, Baldwin County, Alabama. On May 3, 1994, the Service issued ITP number PRT-787172, authorizing the take of ABM incidental to construction and occupancy of the Kiva Dunes development. The single project includes a golf course, and both multi-family and single-family residential areas located north of currently designated critical habitat. The ITP did not establish a maximum number of units to be developed as part of the project. The site development plan incorporated in the original HCP anticipated the construction and occupancy of 531 residential units within the 91 acres designated for Start Printed Page 34157residential development, which was in accordance with the then-current Baldwin County zoning for the site. The original site development plan was to consist of 30 single-family home sites abutting critical habitat, known at that time to be occupied by the ABM, and 60 single-family home sites in other areas of the property, and multi-family development in the interior portions of the property. The ITP took into consideration the impacts of the permittee's project as described in the original development plans, and, authorized construction of two dune walkovers within ABM Critical Habitat. A subsequent modification of the ITP issued by the Service on December 12, 1997, authorized the construction and maintenance of an additional 16 dune walkovers within critical habitat to allow individual homeowners to access the beach portions of their property without impacting the dune system by pedestrian traffic.

The ITP imposes numerous conditions to ensure appropriate avoidance, minimization, and mitigation of adverse impacts to ABM on the property as a result of project development. Among its major conservation measures, the ITP reduces the impacts from the construction on lots abutting critical habitat (Lots 1B through 30B), including the home site footprint, driveway, patio, deck, landscaping, and foundation plantings, by limiting construction to 45 percent of the area lying between the east-west roadway (Kiva Way) and the Critical Habitat line. As a result, 55 percent of the area lying between Kiva Way and the Critical Habitat line must be permanently preserved. In addition, the ITP includes written criteria and specifications for implementing the conservation -provisions of the HCP, including measures for long-term protection, management, and enhancement of dedicated ABM habitat to the maximum extent practicable. Golf course construction was completed in 1995 and utilities have been installed. South of Kiva Way, construction has been completed on six homes and initiated on three additional homes. North of Kiva Way, 45 homes have been completed or are under construction.

The permittee seeks to replat four undeveloped single-family home sites south of Kiva Way (Lots 27, 28, 29, and 30) on the east side of the property. In lieu of building single-family units on these lots as originally planned, the permittee proposes to build a 12-story condominium with eight units per floor, with a parking deck and other amenities. Zoning for the condominium building has been approved by the Baldwin County Commission.

Under the proposed site development plan modification, the condominium building and associated amenities, including landscaping and lighting, would occupy a total combined area of 1.24 acres of the total 2.75 acres on Lots 27-30. All of the proposed construction activity would occur within 45 percent of the area on these lots that is already authorized to be developed under the ITP. Other modifications proposed by the permittee include the use of lighting restrictions on the condominium building and a reduction in the number of dune walkovers, from four for the original four lots, to two total for the proposed condominium building. The total occupancy of the overall Kiva Dunes project would be approximately 21 percent less than that contemplated under the original site development plan authorized under the ITP and HCP.

The Service's EA considers the effect of the project on nesting sea turtles as well as ABM. The green sea turtle has a circumglobal distribution and is found in tropical and subtropical waters. The Florida population of this species is federally listed as endangered; elsewhere the species is listed as threatened. Primary nesting beaches in the southeastern United States occur in a six-county area of east-central and southeastern Florida, where nesting activity ranges from approximately 350 to 2,300 nests annually. Our turtle nesting surveys of the Fort Morgan Peninsula, from Laguna Key west to Mobile Point, from 1994 to 2005, have not confirmed any green turtle nests, though some crawls were suspected in 1999 and 2000.

The loggerhead turtle is listed as a threatened species throughout its range. This species is circumglobal, preferring temperate and tropical waters. In the southeastern United States, 50,000 to 70,000 nests occur annually, about 90 percent of which occur in Florida. Most nesting in the Gulf outside of Florida appears to be in the Chandeleur Islands of Louisiana; Ship, Horn and Petit Bois Islands in Mississippi; and the Gulf-fronting sand beaches of Alabama. For the past six years, our nesting surveys of the Fort Morgan Peninsula, from Laguna Key to Mobile Point, have confirmed that loggerheads continually nest within the area. In 2004, we documented 53 nests; however, Hurricane Ivan destroyed the majority of those nests prior to hatchling emergence.

The Kemp's ridley sea turtle is an endangered species throughout its range. Adults are found mainly in the Gulf of Mexico. Immature turtles can be found along the Atlantic coast as far north as Massachusetts and Canada. The species' historic range includes tropical and temperate seas in the Atlantic Basin and within the Gulf of Mexico. Nesting occurs primarily in Tamaulipas, Mexico, but occasionally nesting activities have been documented in Texas and other Southern States, including an occasional nest in North Carolina. In 1999, a Kemp's ridley sea turtle nested on Bon Secour National Wildlife Refuge, which is approximately two miles west of the Kiva Dunes site.

The EA considers the effects of two project alternatives: (1) A no-action alternative that would not change the original ITP; and (2) an amendment to the ITP that would authorize the construction of a 12-story condominium on the lots currently permitted for four single residences. The difference between the two alternatives relates to the number of residents that would occupy the four Gulf-front lots (numbers 27 through 30). The amount of undisturbed habitat remaining on the site after construction has been completed would be the same.

Alternative 2, the construction of the condominium building, would cause the permanent loss of 45 percent of the habitat north of Critical Habitat for the four lots, or 1.24 acres. The area would include all construction and improvements, including amenities, parking, lighting, and landscaping. However, all of these impacts would occur within the footprint of the development authorized by the original ITP. Therefore, as is the case with Alternative 1, the direct habitat loss that would result from the implementation of this alternative would not exceed that currently permitted.

The overall density of the project would be less than originally planned under the County's zoning density authorization. The previously issued ITP included the entire Kiva Dunes development. Although the number of occupants on the four single-family home sites within the permitted area would increase with the placement of the condominium building, the total occupancy within the overall development would be decreased from that contemplated and approved under the original ITP. As originally proposed, the site development plan for the Kiva Dunes project had 531 units. Under the proposed site development plan modification, there would be 420 units. This represents a decrease of 111 units from that authorized by the ITP, or 21 percent fewer individuals utilizing the permitted area based on the Service's calculation of four persons per unit during peak season. Therefore, the Start Printed Page 34158preferred alternative would result in the reduction of overall residential density within the permit area.

All avoidance, minimization, and mitigation measures for ABM protection provided in the ITP (as described in Alternative 1) would be maintained under this alternative. In addition, the permittee proposes other modifications to the current amended HCP that would reduce habitat impacts for ABM, as well as additional measures to protect sea turtles. The permittee would evaluate the escarpment prior to construction and retain the greatest amount of escarpment possible in the construction of the condominium building. The number of dune walkovers would be reduced from four to two. One of the two remaining dune walkovers would have to be larger than originally proposed under the Amendment to the ITP, based on more recent communication from the Fort Morgan Volunteer Fire Department requesting that additional beach access be provided for life safety issues. The impacts of the dune walkovers on critical habitat would be reduced from approximately 8000 square feet to approximately 5000 square feet. Lighting restrictions and other measures required by the Service would also be incorporated to address protected species that were not included in the original ITP.

Start Authority

Authority: This notice is provided pursuant to section 10 of the Act and National Environmental Policy Act regulations at 40 CFR 1506.6.

End Authority Start Signature

Dated: May 24, 2006.

Cynthia K. Dohner,

Acting Regional Director.

End Signature End Supplemental Information

[FR Doc. E6-9170 Filed 6-12-06; 8:45 am]