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Notice: Receipt of Application for an Incidental Take Permit; Request for Comments

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Fish and Wildlife Service, Interior.


Notice of availability.


The City of Adrian (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The proposed duration of the permit is 30 years. The Applicant has prepared a Habitat Conservation Plan (HCP) to address potential impacts to the federally endangered Topeka shiner (Notropis topeka).

This notice, provided pursuant to section 10(a)(1)(B) of the Act, advises the public and other agencies of the availability of the HCP for review and comment.

The Service has made a preliminary determination that the HCP and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this determination is contained in an Environmental Action Statement and low-effect screening form, which are also available for public review.


Written data or comments must be received on or before October 5, 2007.


Send written comments to Tony Sullins, Field Supervisor, U.S. Fish and Wildlife Service, Twin Cities Field Office, 4101 East 80th Street, Bloomington, MN 55425. Fax number: 612-725-3609.

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Mr. Phil Delphey (612) 725-3548, extension 206.

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Availability of Documents

Individuals requesting copies of the applications and proposed HCP should contact the U.S. Fish and Wildlife Service by telephone at (612) 725-3548 or by letter (see ADDRESSES). Copies of the proposed HCP also are available for public inspection during regular business hours at the U.S. Fish and Wildlife Service, Bloomington Field Office, 4101 East 80th Street, Bloomington, MN, or at the Service's Regional Web site at:​midwest/​Endangered/​permits/​hcp/​index.html. All comments received become part of the official public record. Requests for such comments will be handled in accordance with the Freedom of Information Act and the Council on Environmental Quality's NEPA regulations [40 CFR 1506.6(f)]. 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 address from the record, which we will honor to the extent allowable by law. If a respondent wishes us to withhold his/her name and/or address, this must be stated prominently at the beginning of the comment.


Section 9 of the Act and its implementing Federal regulations prohibit the take of animal species listed as endangered or threatened. The definition of take under the Act includes the following activities: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct (16 U.S.C. 1538). The Service has principal trust responsibility for the conservation and protection of threatened and endangered species under the ESA. Section 10 of the ESA, 16 U.S.C. 1539, establishes a program whereby persons seeking to pursue activities that otherwise could give rise to liability for unlawful “take” of federally-protected species may receive an ITP, which protects them from such liability. To obtain an ITP, the applicant must submit an HCP and the taking must be incidental to, and not the purpose of, an otherwise lawful activity. Id. §§ 1539(a)(1)(B), 1539(a)(2)(A). Once the Service has determined that the applicant has satisfied these and other statutory criteria, it may issue the ITP.

The Applicant operates a municipal well field and is proposing to increase the annual consumption of groundwater at the well field from 50 million to 60.5 million gallons per year. The increase in the annual consumption of groundwater at the Adrian well field has the potential to impact water levels and stream flow in an unnamed stream that borders the well field to the south. The Topeka Start Printed Page 50976shiner (Notropis topeka), which is listed as endangered under the Endangered Species Act, inhabits the tributary stream. Proposed operations of the well field may cause take of Topeka shiners in the stream. The maximum pumping rate for the well field will remain unchanged. Therefore, anticipated impacts to stream flow and water levels in the tributary are expected to be minor.

The purposes of the HCP are to minimize incidental take, to mitigate the effects of any such take to the maximum extent practicable, and to avoid any appreciable reduction in the likelihood of the survival and recovery of this species in the wild. Topeka shiners rely on pools in the main channel of streams and off channel pools (e.g., oxbows). Therefore, the proposed mitigation strategy for the project is creation of new pool habitat in a stream reach inhabited by Topeka shiners. The Applicant proposes to follow the general design of similar pools constructed by the Service in Iowa at one of two proposed mitigation sites and to monitor the constructed habitat to ensure that it contains the physical habitat features essential to the conservation of Topeka shiners. The creation of new pool habitat, along with the proposed monitoring program, is intended to accomplish the following biological goals of the HCP: (1) Ensure that the current range of Topeka shiners in Minnesota is not diminished; and, (2) facilitate the ability of the existing Topeka shiners to increase their population stability and/or abundance within its current range.


The Service will evaluate the permit application, the HCP, and the comments submitted thereon to determine whether the application meets the requirements of section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended. If the requirements are met, the Service will issue an incidental take permit to the Applicant for take of Topeka shiners incidental to the otherwise lawful activities of the project. The Service will not make a final decision until after the end of the 30-day comment period and will fully consider all comments received during the comment period.


This document is published under the authority of the Endangered Species Act (16 U.S.C. 1531 et seq.).

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Dated: August 29, 2007.

Tony Sullins,

Field Supervisor.

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[FR Doc. E7-17520 Filed 9-4-07; 8:45 am]