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Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for Wintering Piping Plovers
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 10, 2001 (Volume 66, Number 132)]
[Rules and Regulations]
[Page 36037-36086]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy01-11]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG13
Endangered and Threatened Wildlife and Plants; Final
Determination of Critical Habitat for Wintering Piping Plovers
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), designate 137
areas along the coasts of North Carolina, South Carolina, Georgia,
Florida, Alabama, Mississippi, Louisiana, and Texas as critical habitat
for the wintering population of the piping plover (Charadrius melodus).
This includes approximately 2,891.7 kilometers (km) (1,798.3 miles
(mi)) of mapped shoreline and approximately 66,881 hectares (ha)
(165,211 acres (ac)) of mapped area along the Gulf and Atlantic coasts
and along margins of interior bays, inlets, and lagoons.
The population of piping plovers that breeds in the Great Lakes
States is listed as endangered, while all other piping plovers are
threatened species under the Endangered Species Act of 1973, as amended
(Act). All piping plovers are considered threatened species under the
Act when on their wintering grounds. Critical habitat identifies
specific areas that are essential to the conservation of a listed
species, and that may require special management considerations or
protection. The primary constituent elements for the piping plover
wintering habitat are those habitat components that are essential for
the primary biological needs of foraging, sheltering, and roosting, and
only those areas containing these primary constituent elements within
the designated boundaries are considered critical habitat. The primary
constituent elements are found in coastal areas that support intertidal
beaches and flats (between annual low tide and annual high tide) and
associated dune systems and flats above annual high tide. Section 7 of
the Act requires Federal agencies to ensure that actions they
authorize, fund, or carry out are not likely to adversely modify
designated critical habitat. As required by section 4 of the Act, we
considered economic and other relevant impacts prior to making a final
decision on what areas to designate as critical habitat.
DATES: This final rule is effective August 9, 2001.
ADDRESSES: The complete administrative record for this rule is on file
at the U.S. Fish and Wildlife Service, Ecological Services Field
Office, TAMUCC, Box 338, 6300 Ocean Drive, Corpus Christi, Texas,
78412. You may view the complete file for this rule, by appointment,
during normal business hours at the above address. Copies of the final
economic analysis and information regarding this critical habitat
designation are available on the Internet at http://plover.fws.gov.
FOR FURTHER INFORMATION CONTACT: Allan Strand, Acting Field Supervisor,
at the above address (telephone 361/994-9005; facsimile 361/994-8262;
email winterplovercomments@fws.gov).
SUPPLEMENTARY INFORMATION:
Background
Description
The piping plover (Charadrius melodus), named for its melodic
mating call, is a small, pale-colored North American shorebird. It
weighs 43-63 grams (1.5-2.25 ounces) and is 17-18 centimeters (cm)
(about 8 inches) long (Haig 1992). Its light sand-colored plumage
blends in well with beaches and sand flats, part of its primary
habitat. During the breeding season, the legs are bright orange, and
the short stout bill is orange with a black tip. There are two single
dark bands, one around the neck and one across the forehead between the
eyes. Plumage and leg color help distinguish this bird from other
plovers. In winter, the bill turns black, the legs remain orange but
pale, and the black plumage bands on the head and neck are lost. Chicks
have speckled gray, buff, and brown down, a black beak, orange legs,
and a white collar around the neck. Juveniles resemble wintering adults
and obtain their adult plumage the spring after they fledge (Prater et
al. 1977).
Range and Biology
Piping plovers breed in three discrete areas of North America: The
Northern Great Plains, the Great Lakes, and the Atlantic Coast. The
Northern Great Plains population historically bred from Alberta to
Ontario, Canada, south to Kansas and Colorado. While Great Lakes
breeding sites once ranged throughout the Great Lakes region, recent
nesting records are limited to Michigan and Wisconsin. Atlantic Coast
breeding sites are found from Newfoundland, Canada, south to North
Carolina. Generally, piping plovers favor open sand, gravel, or cobble
beaches for breeding. Breeding sites are generally found on islands,
lake shores, coastal shorelines, and river margins.
Piping plovers winter in coastal areas of the United States from
North Carolina to Texas. They also winter along the coast of eastern
Mexico and on Caribbean islands from Barbados to Cuba and the Bahamas
(Haig 1992). The international piping plover winter censuses of 1991
and 1996 located only 63 percent and 42 percent of the estimated number
of breeding birds, respectively (Haig and Plissner 1993, Plissner and
Haig 1997). Of the birds located on the United States wintering grounds
during these two censuses, 89 percent were found on the Gulf Coast and
8 percent were found on the Atlantic Coast. Information from
observation of color-banded piping plovers indicates that the winter
ranges of the breeding populations overlap to a significant degree.
Therefore, the source breeding population of a given wintering
individual cannot be determined in the field unless it has been banded
or otherwise marked.
Piping plovers begin arriving on the wintering grounds in July,
with some late-nesting birds arriving in September. A few individuals
can be found on the wintering grounds throughout the year, but
sightings are rare in late May, June, and early July. Migration is
poorly understood, but most piping plovers probably migrate non-stop
from interior breeding areas to wintering grounds (Haig 1992). However,
concentrations of spring and fall migrants have been observed along the
Atlantic Coast (USFWS 1996).
Behavioral observations of piping plovers on the wintering grounds
suggest that they spend the majority of their time foraging (Nicholls
and Baldassarre 1990b; Drake 1999a, 1999b). Primary prey for wintering
plovers includes polychaete marine worms, various crustaceans, insects,
and occasionally bivalve mollusks (Nicholls 1989; Zonick and Ryan
1995), that they peck from on top or just beneath the surface. Foraging
usually takes place on moist or wet sand, mud, or fine shell. In some
cases, this substrate may be covered by a mat of blue-green algae. When
not foraging, plovers can be found roosting, preening, bathing, in
aggressive encounters (with other piping plovers and other species),
and moving among available habitat locations (Zonick and Ryan 1996).
The habitats used by wintering birds include beaches, mud flats,
sand flats, algal flats, and washover passes (areas where breaks in the
sand dunes result in an inlet). Individual plovers tend to return to
the same wintering sites year after year (Nicholls and Baldassarre
1990b, Drake 1999a). Wintering plovers are dependent on a mosaic of
habitat
[[Page 36039]]
patches, and move among these patches depending on local weather and
tidal conditions. One study by Drake (1999a) monitored the movement of
48 piping plovers in south Texas, for one season. She found, using 95%
of the documented locations, that these birds had a mean home range of
1,262 ha (3,117 ac). Drake (1999) also noted that the mean linear
distance moved per individual bird was 3,294 m (2 mi) for the fall
through the spring of 1997-1998.
In late February, piping plovers begin leaving the wintering
grounds to migrate back to breeding sites. Northward migration peaks in
late March, and by late May most birds have left the wintering grounds
(Eubanks 1994).
Population Status
In recent decades, piping plover populations have declined
drastically, especially in the Great Lakes area. In the early 1900s,
uncontrolled hunting drove them nearly to extinction. Protective
legislation helped them to recover by 1925, and populations reached a
high in the 1930s (USFWS 1994). These numbers soon plummeted, and
numbers continued to decline in the 1940s and 1950s as shoreline
development expanded, resulting in the loss of plover breeding habitat.
River flow alteration, channelization, and reservoir construction have
also led to loss of breeding habitat.
In 1973, the piping plover was placed on the National Audubon
Society's Blue List of threatened species. By that time, the Great
Lakes population of piping plovers had been extirpated from shoreline
beaches in Illinois, Indiana, Ohio, New York, Pennsylvania, Minnesota,
and Ontario, Canada, and only a few birds continued to nest in
Wisconsin (Russell 1983) and Michigan. The Canadian Committee on the
Status of Endangered Wildlife in Canada designated the piping plover as
``Threatened'' in 1978 and elevated the species'' status to
``Endangered'' in 1985 (Canadian Wildlife Service 1989). At the time
the species was listed under the Act in 1985, the Great Lakes
population numbered only 17 known breeding pairs, and the breeding
areas had been reduced from sites in eight States to only northern
Michigan (Stucker and Cuthbert, unpublished data). In recent years, the
Great Lakes population has gradually increased and expanded to the
south and west as a result of intensive conservation measures. Recent
increases in the Atlantic Coast breeding population have also been
attributed to intensive management of nesting beaches. While overall
the Atlantic Coast population is increasing, increases are regionally
variable with some areas experiencing declining populations. Breeding
census results show a marked decline of the population breeding in the
Northern Great Plains of the United States (Plissner and Haig 1997).
Overall winter habitat loss is difficult to document; however, a
variety of human-caused disturbance factors have been noted that may
affect plover survival or utilization of wintering habitat (Nicholls
and Baldassarre 1990a, Haig and Plissner 1993). These factors include
recreational activities (motorized and pedestrian), inlet and shoreline
stabilization, dredging of inlets that can affect spit (a small point
of land, especially sand, running into water) formation, beach
maintenance and renourishment (renourishing the beach with sand that
has been lost to erosion), and pollution (e.g., oil spills) (USFWS
1996). The peer-reviewed, revised recovery plan for the Atlantic piping
plover population recognizes the need to protect wintering habitat from
direct and indirect impacts of shoreline stabilization, navigation
projects, and development. Adult survivorship over the wintering period
plays a significant role in maintaining current populations and in
accomplishing increases in population levels required to achieve
recovery.
Previous Federal Actions
On December 30, 1982, we published a Notice of Review in the
Federal Register (47 FR 58454) that identified vertebrate animal taxa
being considered for addition to the List of Threatened and Endangered
Wildlife. The notice included the piping plover as a Category 2
Candidate species, indicating that we believed the species might
warrant listing as threatened or endangered, but that we had
insufficient data to support a listing at that time. Subsequent review
of additional data indicated that the piping plover warranted listing,
and in November 1984, we published a proposal to list the piping plover
as endangered (Great Lakes breeding population) and threatened (all
other piping plovers, including all birds on non-breeding areas) in the
Federal Register (49 FR 44712).
The proposed listing was based on the decline of the species and
the magnitude of existing threats, including habitat destruction,
disturbance by humans and pets, high levels of predation, and
contaminants. On December 11, 1985, we published the final rule (50 FR
50720), listing the piping plover as endangered in the Great Lakes
watershed (Illinois, Indiana, Michigan, northeastern Minnesota, New
York, Ohio, Pennsylvania, Wisconsin, and Ontario, Canada) and as
threatened elsewhere within its range. The listing includes piping
plovers breeding in Canada, with their status under the Act determined
by whether they breed in the watershed of the Great Lakes (endangered)
or elsewhere (threatened). All piping plovers on migratory routes
outside of the Great Lakes watershed or on their wintering grounds are
considered threatened. We did not designate critical habitat for the
species at that time.
In 1986, two U.S. recovery teams were appointed to develop recovery
plans for the piping plovers breeding in the Atlantic Coast States and
those breeding in the Great Lakes/Northern Great Plains region. We
published those plans in 1988 (USFWS 1988a, 1988b). In 1994, we began
to revise the plan for the Great Lakes/Northern Great Plains plovers by
developing and distributing for public comment a draft that included
updated information on the species. More recently, we decided that the
recovery of these two regional populations would benefit from separate
recovery plans that would direct separate recovery programs. Separate
recovery plans for the Great Lakes and Northern Great Plains piping
plovers are presently under development. The recovery plan for the
Atlantic Coast-breeding plovers was revised in 1996 (USFWS 1996). We
exchange observers and coordinate recovery activities with two Canadian
recovery teams, with a strong focus on protection of the wintering
habitat shared by piping plovers breeding in both countries.
In December 1996, Defenders of Wildlife (Defenders) filed a lawsuit
against the Department of the Interior and the Service for failing to
designate critical habitat for the Great Lakes population of the piping
plover. Defenders filed a second, similar lawsuit for the Northern
Great Plains piping plover population in 1997. These lawsuits were
subsequently combined (Defenders of Wildlife et al. v. Bruce Babbitt et
al., Consolidated Cases Civil No. 1:96-CV-02695AER and Civil No. 1:97-
CV00777AER). In February 2000, the court issued an order directing us
to publish a proposed critical habitat designation for the Great Lakes
population of the piping plover by June 30, 2000. Publication of a
proposal for nesting areas of the Northern Great Plains population of
piping plover by May 31, 2001, was also ordered. Since we cannot
distinguish the Great Lakes and Great Plains birds on their wintering
grounds, we felt it was appropriate to propose critical habitat for all
U.S.-wintering piping plovers collectively. Further, we determined
[[Page 36040]]
that the appropriate course of action would be to propose critical
habitat for all U.S.-wintering piping plovers on the same schedule
required, under court order, for the Great Lakes breeding population. A
subsequent order, after requesting the court to reconsider its original
order relating to final critical habitat designation, directed us to
finalize the critical habitat designations for the Great Lakes
population by April 30, 2001, and for the Northern Great Plains
population by March 15, 2002. On May 7, 2001, we published a notice in
the Federal Register (66 FR 22983) announcing a 60-day delay, until
June 29, 2001, in making our final determination of critical habitat
for the wintering piping plover. The notice explained that we needed
additional time to complete our analyses required under section 4(b)(2)
of the Act.
We published our proposed designation of critical habitat for
wintering piping plovers in the Federal Register on July 6, 2000 (65 FR
41782), and requested comments on the proposal by September 5, 2000. We
held 10 public hearings and 10 public meetings on the proposed rule in
Wilmington, North Carolina, on July 17, 2000; Savannah, Georgia, on
July 19, 2000; Tallahassee, Florida, on July 21, 2000; Fort Myers,
Florida, on July 24, 2000; Mobile, Alabama, on July 26, 2000; Baton
Rouge, Louisiana, on July 27, 2000; Galveston, Texas, on July 31, 2000;
Corpus Christi, Texas, on August 2, 2000; McAllen, Texas, on August 4,
2000; and South Padre Island, Texas, on November 14, 2000. We held
additional public meetings in Morehead City, North Carolina, on August
16, 2000; in Manteo, North Carolina, on August 17, 2000; Marco Island,
Florida, on October 10, 2000; and Rio Hondo, Texas, on August 23, 2000.
On August 30, 2000 (65 FR 52691), we published a notice in the
Federal Register extending the public comment period to October 30,
2000, and announced the availability of the draft economic analysis. On
October 27, 2000 (65 FR 64414), we again published a notice in the
Federal Register extending the public comment period until (November
24), 2000, and provided notice of a tenth public hearing on the
proposed rule. On February 22, 2001 (66 FR 11134), we reopened the
comment period until March 1, 2001, to allow for additional comments to
be incorporated into the record and allow for us to base our final
decision on the best scientific and commercial information available.
Summary of Comments and Recommendations
As mentioned above, we requested all interested parties to submit
comments or information that might bear on the designation of critical
habitat for wintering piping plovers (65 FR 41782). We contacted all
appropriate State and Federal agencies, Tribes, county governments,
scientific organizations, and other interested parties and invited them
to comment. In addition, we published newspaper notices inviting public
comment and announcing the public hearings in the following
newspapers--Wilmington Morning Star in North Carolina; Charleston Post
and Courier in South Carolina; Savannah Morning News in Georgia;
Florida Times Union, Tallahassee Democrat, Fort Myers News Press, Key
West Free Press, St. Petersburg Times, Panama City News Herald, and
Pensacola News Journal in Florida; Mobile Register, Alabama; Biloxi The
Sun Herald, Mississippi; New Orleans Times Picayune and Baton Rouge The
Advocate in Louisiana; and the Houston Chronicle, Galveston Daily News,
Port Arthur News, Texas City Sun, Brownsville Herald, Corpus Christi
Caller-Times, The Monitor (distributed from Rio Grande City to South
Padre Island), and the Facts (Brazosport) in Texas.
We held 10 public hearings on the proposed rule (see ``Previous
Federal Action'' section above for dates and locations). Transcripts of
these hearings are available for inspection (see ADDRESSES section).
We received a total of 6,013 comments (counting both written and
oral comments) from individuals, agencies, and organizations, plus one
petition containing 537 signatures. Of these comments, 5,800 commenters
and the petition were specific to the designation proposed for Marco
Island, Florida. Of the Marco Island comments, 44 commenters and 537
signatories to the petition favored the designation as proposed, 5,736
opposed designation on Marco Island, and 20 supported a revised
designation or only provided information relative to the proposal.
There were 213 commenters who were not specific to Marco Island. Of
those, 85 favored the designation, 94 opposed it, and 34 did not state
a position but provided information.
We reviewed all comments received for substantive issues and new
data regarding critical habitat and wintering piping plovers. Some
comments resulted in changes between the proposed and final
designations, and those comments are discussed in the ``Summary of
Changes From the Proposed Rule'' section of this document. We address
the rest of the substantive comments in the following summary. For
readers' convenience we have assigned comments to major issue
categories. Repeated or very similar comments are combined into single
comments and responses.
Issue A: General Biological Comments
A number of commenters touched on biological issues surrounding the
piping plover.
Comment 1: The Service's Southeast Region Home Page cites habitat
loss due to navigation, dredging, and shoreline stabilization and
replenishment projects as major contributors to the species' decline.
That statement is unsupported in the literature. Piping plovers are
extremely mobile and thrive in a changing environment. The cited
activities do not adversely impact wintering piping plovers.
Our Response: We disagree with the statement made by the commenter.
The commenter is referring to our website at http://plover.fws.gov,
that describes the life history and threats of the piping plover
throughout its range. Dredging projects and shoreline manipulations in
wintering areas can have an effect on the bird's food base, and result
in permanent habitat loss and direct disturbance of individual birds.
We already consult with Federal agencies that fund or carry out
projects involving dredging, beach nourishment, and other shoreline
stabilization activities, most notably with the Army Corps of
Engineers, because of the effect of such projects on piping plover
habitat. The purpose of many shoreline stabilization projects is the
prevention of overwash processes (the method by which sediment (sand)
is transported across a barrier island) that form inlets and perpetuate
sand and mud flats. As sand and mud flats are identified as critical
habitat for the plover, there is a connection between these activities
and the formation and maintenance of habitat for the plover. Zonick's
(2000) dissertation similarly highlights the importance of preserving
``washover pass'' habitat in Texas. Zonick (2000) found that washover
passes are used by piping plovers both as feeding and roosting areas.
Washover areas are created by the flow of water through the primary
dune line with deposition of sand on the barrier flats, marsh, or into
the lagoon, depending on the storm magnitude and the width of the
beach. Additionally, the peer-reviewed revised recovery plan for the
Atlantic piping plover population recognizes the need to protect
wintering habitat from direct and indirect impacts of shoreline
stabilization, navigation projects, and
[[Page 36041]]
development. In general, through our consultations with other Federal
agencies, we have found that these activities can be timed and designed
to minimize effects on piping plovers.
Comment 2: Army Corps of Engineers projects are designed to avoid
and minimize impacts to listed species and, where feasible, features to
promote species conservation are included in projects. Corps of
Engineers dredged material disposal benefits plovers by providing
foraging habitat. These benefits should have been discussed in the
proposal.
Our Response: We stated in the proposed rule that ``Several of
these components (sparse vegetation, little or no topographic relief)
are mimicked in artificial habitat types used less commonly by piping
plovers (e.g., dredge spoil sites).'' Nicholls (1989) documented that
piping plovers were observed on spoil areas 6 percent of the time and
on sandflats 27 percent of the time. Her survey coverage included 2,705
km (1,680 mi) of coastline along portions of nine states from Virginia
to Texas. Spoil sites do not seem to be the preferred habitat for the
piping plover, although when more suitable habitat is lacking, spoil
sites do create some habitat for these birds. We appreciate the Corps'
efforts to promote species conservation through design feature
modification of projects.
Comment 3: Project delays related to the critical habitat
designation for wintering piping plovers, when added to already-narrow
windows imposed by protection of other threatened and endangered
species such as sea turtles, seabeach amaranth, and beach mice, may
affect the Corps of Engineers' ability to conduct mission-related
activities.
Our Response: Since the species was listed in 1986, the Corps of
Engineers has been subject to the consultation requirements of the Act,
including analyzing the potential effects on the species habitat.
Timing of projects has been considered in consultations conducted under
the jeopardy standard since listing, and, in general, we have found
that projects can be timed and designed to minimize effects on piping
plovers.
Comment 4: The causes for piping plover declines are unclear, but
it is likely any declines are a result of threats to breeding areas
rather than wintering habitat. Threats to wintering habitat are not
discussed, nor are any declines in habitat acreage documented.
Accordingly, how can the designation possibly benefit wintering piping
plovers?
Our Response: Historically, plovers were decimated by unregulated
hunting. The major present-day threats are largely on breeding areas,
but wintering habitats are also essential to the conservation of this
species. Adult survivorship over the wintering period plays a
significant role in maintaining current populations and in
accomplishing increases in population levels required to achieve
recovery. In the face of current and foreseeable continued coastal
development and increased recreational use, less suitable habitat may
be available each year for piping plover recovery. Therefore, we have
designated the areas that have consistent plover use and best meet the
biological needs of the species. The amount of wintering habitat
included in this designation appears sufficient to support future
recovered populations, and the existence of this habitat is essential
to the conservation of this species. In addition, the designation
benefits species conservation by alerting public and private entities
to the importance of wintering habitat.
Comment 5: Comments were received that questioned the relative use
of a specific area compared to the overall population abundance. Of the
50 percent of piping plovers accounted for in the 1996 census, only 8
percent were documented on the Atlantic Coast. How can the Atlantic
Coast be considered essential to the species' conservation?
Our Response: We have determined that most sites with consistent
occurrence of piping plovers should be designated as critical habitat
in order to provide for the recovery of the species. There are an
estimated 32 pairs remaining of the endangered Great Lakes breeding
population of piping plovers. Current data shows that Atlantic Coast
sites are even more important to the Great Lakes piping plovers than
those on the Gulf Coast. Of the 39 individuals from the Great Lakes
population sighted on the wintering ground between 1993 and spring of
2000, 26 (67%) were in South Carolina, Georgia, or the Atlantic Coast
of Florida (Wemmer 2000). Thus, we consider the Atlantic Coast to be
essential to the recovery of the piping plover.
Comment 6: In basing the critical habitat designation on
observational data, the proposal is biased toward areas most frequently
visited by bird watchers and other beach users. Meanwhile, many areas
with restricted access but likely containing excellent habitat were not
proposed. Given that situation and the fact that 50 percent of
wintering plovers are unaccounted for, how can the Service say the
proposed areas are essential for this species?
Our Response: We believe the effect of observational bias is
minimal because ornithologists and birders are persistent about seeking
out birds. Data we received from state biologists documented surveys of
the entire coastlines in many states. Some geographic data provided
from the 1991 and 1996 International Censuses show that a large area of
the coastline is not used by the birds. Only sites where plovers have
been observed were included in the critical habitat designation.
Comment 7: One-hundred-forty-seven areas are proposed as critical
habitat. How could failure to designate any one of these areas lead to
extinction of the piping plover?
Our Response: The criterion for critical habitat designations is
not whether the sites are essential to prevent extinction; it is
whether the sites are essential to the conservation of the species and
may require special management consideration or protection.
Conservation means the use of all methods and procedures that are
necessary to bring an endangered or threatened species to the point at
which listing under the Act is no longer necessary (i.e., recovered).
Subsection 4(b)(2) of the Act allows us to exclude areas from critical
habitat designation where the benefits of exclusion outweigh the
benefits of designation, provided the exclusion will not result in the
extinction of the species.
There are an estimated 32 pairs remaining of the endangered Great
Lakes breeding population of piping plovers and data show that this
population uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer
2000). Therefore, identification of essential habitat should not rule
out any sites where piping plovers consistently over-winter, since
these sites may be used by the highly endangered Great Lakes
population. We have determined that most sites with consistent
occurrence of piping plovers should be designated as critical habitat
in order to provide for the recovery of the species.
Comment 8: The Service should define ``wintering.'' Does the
designation include migrating piping plovers?
Our Response: We define ``wintering'' as areas used by birds during
the non-breeding season. Piping plovers begin arriving on the wintering
grounds in July, with some late-nesting birds arriving in September. A
few individuals can be found on the wintering grounds throughout the
year, but sightings are rare in late May, June, and early July.
[[Page 36042]]
This designation did not distinguish migrating birds; however, some
areas designated as wintering habitat are also used by migrating and
breeding birds in North Carolina and South Carolina. Migration is
poorly understood, but it appears that inland birds may fly non-stop to
Gulf coast sites (Haig 1992). It is believed that the Atlantic
population follows a narrow strip along the Atlantic coast during
spring and fall migration with some crossover to Gulf Coast wintering
areas (USFWS 1996).
Comment 9: The international censuses provide only a snapshot of
mid-winter distribution and abundance, but tell little about seasonal
variation in habitat use and plover movements. While many plovers
appear relatively sedentary, observations at certain sites in North
Carolina (McConnaughy et al. 1990) and Texas (Eubanks 1994) have
reported large numbers during or prior to migration. These staging and
migratory stopover areas may be particularly critical for migratory
shorebirds (Myers 1983; Skagen and Knopf 1993) and should be included
as critical habitat.
Our Response: As stated above, migration is poorly understood, but
it appears that inland birds may fly non-stop to Gulf Coast sites (Haig
1992). Based on McConnaughy's study, some areas are used as staging or
stopover areas, and we have included those areas in the designation
when we have survey data to support consistent piping plover use. It is
believed that the Atlantic population follows a narrow strip along the
Atlantic coast during spring and fall migration from the Gulf coast
(USFWS 1996). The sites that McConnaughey et al. (1990) documented in
North Carolina as having relatively high numbers of plovers observed
during migration are within the designated critical habitat units. The
sites identified by Eubanks (1994) in Texas are not consistently used
and were not included in the designation.
Comment 10: The Louisiana coast is remote and not subject to
extensive human presence. Further, there is no documentation that
Louisiana supports a significant portion of the wintering plover
population. Designation of over 1 million acres can only be considered
excessive.
Our Response: We agree that human development is not as great a
threat along Louisiana's coasts as it is in other areas within the
plover's wintering range. We disagree however, that there is no
documentation that Louisiana supports a significant portion of the
wintering plover population. The International Piping Plover Surveys
have consistently identified Louisiana as having the second highest
numbers of wintering piping plovers after Texas. Since publication of
the proposed rule we were able to conduct surveys in the remote deltas
of Louisiana, where access is difficult. Based on the results of these
surveys, we refined our critical habitat designation to the maximum
extent possible to include only those areas having documented use by
piping plovers. This has resulted in less acreage being designated in
Louisiana.
Comment 11: No data were presented to show that piping plovers
exhibit site fidelity and cannot simply move to other areas if an area
is destroyed.
Our Response: Johnson and Baldassarre (1988) found relatively high
site fidelity for plovers wintering in the Mobile Bay area in Alabama.
The revised recovery plan for the piping plover Atlantic coast
population noted several reports of banded birds returning year after
year to the same wintering sites on both the Atlantic and Gulf coasts
(S. Bogert, pers. comm. 1988; T. Below, National Audubon Society, pers.
comm. 1988; T. Eubanks, pers. comm. 1989; Zonick and Ryan 1993; J.
Fussell, pers. comm. 1995). Wemmer (2000) presents information on
intra- and inter-year site fidelity for Great Lakes plovers, which
documents one bird that has been observed during 9 of 11 winters since
1988 at Marco Island, Florida.
Comment 12: Comments have been received expressing concerns with
the size of designated areas. Most think that the designated areas are
too large; a few think that the units are not large enough, thereby not
allowing for changes that occur during known dynamic coastal processes.
Our Response: As described in the ``Methods'' section of this rule,
in the proposed rule, a single buffer distance was set for all units in
all states (500 m (1,640 ft)). This buffering methodology resulted in
areas of water (deeper than mean lower low water (MLLW)) and areas of
dense vegetation being included in the designation, which are not
utilized by piping plovers. MLLW is defined as the average of the lower
low water height of each tidal day observed over the National Tidal
Datum Epoch. In the final rule, we abandoned this methodology for a
more precise means of defining the areas that contain the physical and
biological features essential to the wintering piping plover. This
change in methodology results in smaller units of designated critical
habitat than that of the proposed rule. We also removed developed areas
from mapped units where possible. (See our response to comments under
``Issue G: Mapping and Primary Constituent Elements.'').
In order to capture the dynamic nature of the coastal habitat and
the intertidal areas used by the piping plover, we have textually
described each unit as including the area extending out from the
landward boundaries to the MLLW. Designating specific locations for
critical habitat for the piping plovers is difficult because the
coastal areas they use are constantly changing due to storm surges,
flood events, and other natural geo-physical alterations of beaches and
shorelines. Thus, to best insure that areas considered essential to the
piping plover will remain in the designation over time, our textual
unit descriptions will constitute the definitive determination as to
whether an area is within the critical habitat boundary. Our textual
unit descriptions describe the geography of the area using reference
points, include the areas from the landward boundaries to the MLLW,
which encompasses intertidal areas that are essential foraging areas
for piping plovers, and may describe other areas within the unit that
are utilized by the piping plover and contain the primary constituent
elements (e.g., upland areas used for roosting and wind tidal flats
used for foraging).
Comment 13: Requests have been made to modify specific units in
order to avoid areas where existing and future projects are planned or
may occur.
Our Response: Critical habitat is designated on the basis of
scientific data, but areas may be excluded on the basis of economic
impact or any other relevant impact if the Secretary determines that
the benefits of exclusion outweigh the benefits of specifying such
areas as critical habitat. We may not exclude areas if such exclusion
will result in the extinction of the species. While the final Economic
Analysis identifies some impacts following this critical habitat
designation, this consultation activity is largely attributable to the
listing. This is based on the fact that all the designated critical
habitat units have documented use by piping plovers and planned
projects are currently subject to the regulatory provisions of section
7(a)(2) and section 9 of the Act due to the listing of the piping
plover. See the ``Economic Analysis'' and the ``Exclusions Under
4(b)(2) of the Act'' sections of this rule.
Comment 14: Many commenters have asked why we do not designate
areas that are not heavily used and inaccessible by man, therefore more
ideal for piping plovers.
[[Page 36043]]
Our Response: We have designated areas with consistent
documentation of piping plover use. This includes both areas heavily
used and inaccessible by man. Many inaccessible areas do not have the
primary constituent elements needed by plovers. Piping plovers choose
areas that meet their physical and biological needs. Plovers exhibit a
certain amount of site fidelity and were using many of these places
before they became developed.
Comment 15: Commenter states that literature (Nicholls Baldassarre
1990b) seems to suggest that people and off-road vehicles preclude
piping plovers from occupying wintering sites. There are beaches where
piping plovers and beach users successfully cohabit. Studies cited in
the recovery plan do not provide conclusive scientific data on whether
or not human-caused impacts influence wintering piping plovers.
Our Response: Section 4 of the Act requires us to base our critical
habitat designations on the best available scientific information. We
note that there are several studies documenting the effects of human
presence on the behavior of birds. Bird species vary in their response
to human disturbances (pedestrian and vehicular) (Rodgers and Smith
1997). On the breeding grounds piping plovers elicit a significantly
higher response to humans than to potential predators or non-predator
species (Flemming et al. 1988). Rodgers and Smith (1997) documented
that shorebirds are more easily flushed than other species of coastal
birds. This may be because shorebirds on the wintering grounds are
migrant species that rarely interact with humans. Elliott and Teas
(1996) evaluated direct and indirect measures of the effects of human
disturbance on piping plovers in Texas. Piping plovers (breeding and
wintering) not encountered by humans spend more time foraging and less
time in active nonforaging behavior (Elliott and Teas 1996; Burger
1991). Zonick and Ryan (1996) documented in Texas that beach vehicular
density and piping plover abundance were negatively associated. On the
breeding grounds, the effects of people have caused increased shifts in
habitat use and decreased foraging time with more time devoted to
alertness (Burger 1991; Staine and Burger 1994).
Increased human disturbance increases energy expenditure by birds
and reduces their food intake (Belanger and Bedard 1990). Whether this
is enough to affect their maintenance of fat reserves for long-range
migration or to maintain adequate body temperatures under cooler winter
conditions is unknown. If the level of disturbance is high enough,
piping plovers may be forced to move to less optimal habitat (Elliott
and Teas 1996). We do not know what effect foraging in marginal areas
has on the piping plover's ability to survive the winter, and
successfully reach the breeding grounds, or on reproductive success
once on the breeding grounds. Studies on the breeding grounds that may
apply on the wintering grounds show that piping plovers that have
diverse habitats available for foraging can more easily cope with space
competition and human disturbances than those with fewer habitats
(Burger 1994).
Since the piping plover was listed in 1986, no beach closures have
occurred due to the presence of piping plovers in their wintering
range, although in the breeding range (e.g., Plymouth, Massachusetts),
partial beach closures have occurred to protect chicks and adult piping
plovers prior to the chicks fledging. Additionally, as stated in our
response to B.18, we believe that the effect of normal human presence
on piping plovers in their wintering habitat does not have serious
consequences at the population level, and we do not expect this
designation to affect recreational beach use.
Comment 16: Several commenters suggested that certain units (Yent
Bayou, Marco Island, Unit TX-34 (San Luis Pass), and Rollover Bay and
surrounding areas) are not essential to the conservation of the species
and should not be designated as critical habitat.
Our Response: As required under the Act, we designated critical
habitat essential for the conservation of the species based on the best
scientific data available. We identified areas throughout a broad
geographic coverage along the coast that contained the primary
constituent elements and where occurrence data indicated a consistent
use by piping plovers. The essential features found on the designated
areas may require special management consideration or protection to
ensure their contribution to the species' recovery. We believe that the
designated areas are sufficient, and are needed to support piping
plovers when recovered. We have addressed these areas specifically in
``Issue B: Site-specific Biological Comments.''
Comment 17: One commenter questioned the need to designate critical
habitat in areas where the piping plover does not breed.
Our Response: This designation is for wintering habitat only.
Piping plovers spend up to 10 months (83 percent of their lifetime) of
each year on the wintering grounds. It is, therefore, important to
insure their biological and physical needs are met on the wintering
grounds. See also response to A.4.
Comment 18: Several commenters requested that vast areas of open
sandy beaches, open water, and heavily vegetated dunes not be
designated critical habitat and questioned why the designation includes
areas up to 100 meters offshore.
Our Response: We disagree with the statement that ``vast'' areas of
open sandy beaches have been designated as critical habitat. Areas with
documented piping plover use have been designated. These areas are used
by piping plovers because they contain the primary constituent elements
and are essential to the conservation of the species. The primary
constituent elements are found in geologically dynamic coastal areas
that support intertidal beaches and flats and associated dune systems
and flats above annual high tide (i.e., sandy beaches). Because areas
used by piping plovers are ephemeral habitats, we must consider their
changing nature over time. As explained in the ``Methods'' section, we
abandoned the buffering methodology used in the proposed rule and the
revised textual unit descriptions are now the definitive source of
determining unit boundaries. This change has resulted in critical
habitat units that are significantly scaled down in size from what was
presented in the proposed rule. We also believe that we have captured
the ephemeral nature of the habitat within these unit descriptions, by
including areas to MLLW.
Comment 19: While there may be some sites within the piping
plover's range that are very remote or logistically difficult to
survey, only sites with documented occurrence of the species should be
designated as critical habitat.
Our Response: Since the initial proposal, we obtained data on
piping plover occurrences in critical habitat areas where the primary
constituent elements were present but where we had no piping plover
occurrence data because the areas were logistically difficult to
survey. We have subsequently refined our designation to include only
those areas that contain the primary constituent elements essential for
the conservation of the species and for that we have known piping
plover occurrences. See the ``Summary of Changes From the Proposed
Rule'' section and our response to A.10.
Issue B: Site-specific Biological Comments
A number of commenters spoke to specific geographical areas of the
designation.
Comment 1: Several commenters have recommended the inclusion of
[[Page 36044]]
additional areas in the critical habitat designation and have submitted
data supporting consistent use of these areas by piping plovers. The
areas that fall under these criteria in South Carolina include Port
Royal Mud Flats, Beaufort County. Areas in Florida include Dog Island,
Franklin County; Big Hickory Island, Lee County; north tip of Anna
Maria Island, Manatee County; high marsh and salt pans inland of Bunche
Beach, Lee County (adjacent to Unit FL-25); Cape Haze/Gasparilla Sound
State Buffer Preserve, Charlotte County; and northeast end of Spanish
Harbor Keys ``Horseshoe Pit,'' Monroe County. In Alabama, Gulf State
Park was recommended for inclusion.
Our Response: We appreciate receiving the additional information.
We will continue to monitor and collect new information and may revise
the critical habitat designation in the future if sufficient new
information supports a change. Areas outside the critical habitat
designation will continue to be subject to conservation actions that
may be implemented under section 7(a)(1) and to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard and the
section 9 take prohibition (see response to E.5). Should new
information become available to support the need to designate critical
habitat in other areas, we will consider amending this designation.
Comment 2: Other areas have been recommended for inclusion, based
on presence of primary constituent elements; however, no significant
data on plover occurrence was presented by commenters. Such areas
recommended in North Carolina include expansion of units 6 and 7 to
include all of the northern and southern Core Banks area. South
Carolina areas are Fripp Island (habitat has been riprapped), Morse
Creek, and St. Phillips Island, Beaufort. The areas in Florida include
the South tip of Amelia Island, Nassau County; high marsh and salt pans
of Charlotte Harbor State Buffer Preserve, Charlotte County; Passage
Key National Wildlife Refuge, Manatee County; north end of Longboat
Key, Sarasota County; Ft. Pickens, Santa Rosa County; Little Sabine,
Santa Rosa County; Choctawhatchee Bay, Okaloosa County; Cape St.
George, Franklin County; St. Marks National Wildlife Refuge, Piney
Island, Wakulla County; Aucilla Wildlife Management Area, Steinhatchee
Area, Taylor County; Cedar Key and area, Levy and Dixie Counties;
Chassahowitzka National Wildlife Refuge, Homosassa Island, Citrus
County; Siesta and Casey Keys, Sarasota County; Mouth of Peace River,
Charlotte County; Pine Island and Pine Island National Wildlife Refuge,
Mound Key, Carl Johnson Park, Lovers Key State Recreation Area, and
Delnor Wiggins Pass, Lee County; Rookery Bay National Estuarine
Sanctuary and Kice Island, Collier County; north end of Key Largo and
other Keys in general, Monroe and Dade Counties; Hobe Sound National
Wildlife Refuge and Blowing Rocks Preserve, near Jupiter Inlet, Martin
County; Hutchinson Island, south of Ft. Pierce, St. Lucie County;
Sebastian Inlet State Park, Pelican Island National Wildlife Refuge,
Indian River County; Spessard Holland County Park, Brevard County;
Canaveral National Seashore, Brevard and Volusia Counties; Anastasia
State Recreation Area, St Augustine Beach to Ft. Matanzas Inlet, St.
Johns County; Midnight Pass, Sarasota County; Sand Key, Pinellas
County; St. Andrews State Recreation Area, Bay County; and Port
Charlotte Beach State Recreation Area, Charlotte County. One area, Sand
Island, was requested for inclusion in Mississippi. In Alabama, the
area known as Alabama (also known as Florida) Point and Bon Secour
National Wildlife Refuge were suggested for inclusion.
Our Response: No data were provided to support the designation of
the above areas as critical habitat. Many of these sites have been
monitored as part of piping plover and other shorebird surveys. No
consistent use by piping plovers was recorded.
Comment 3: One commenter noted that observations of piping plovers
occurred in the following areas during the international censuses, but
that the areas were not included in the designated units in Texas--
Rachel Site, east of Whites Point, Nueces Bay, Nueces County, 1991;
Tule Lake, Nueces County, 1996; Redfish Bay area, Nueces County, 1991,
1996; Aransas Pass/Port Aransas causeway, Nueces County, 1991, 1996;
Aransas National Wildlife Refuge, Calhoun and Aransas Counties, 1991;
Aransas Bay/St Charles Bay reefs, Aransas County, 1991; Copano Bay
bridge, Aransas County, 1991; Texas Point to McFaddin National Wildlife
Refuge, Jefferson County, 1996 and Christmas Bird Counts.
Our Response: We appreciate receiving the additional information.
For the following reasons we did not include these areas in the
designation. The Rachel Site, east of Whites Pt. in Nueces County was
not surveyed in 1996, nor is there indication of any surveys taken that
show piping plovers have been seen at this site. The area has the
potential habitat for piping plovers, but there has been no data
reported to support designation of critical habitat. Six piping plovers
were found in St. Charles Bay in 1991, but the site was not visited in
1996, and we did not include the area in the designation based upon a
lack of documentation of consistent use. Although piping plovers were
present on the margins of spoil islands at the Aransas National
Wildlife Refuge in Calhoun and Aransas Counties in 1991, none were
found at either site during the 1996 census, therefore we did not
include this area in the designation because we lacked documentation of
consistent use. Only one bird was found in both the 1991 and 1996
censuses on the Port Aransas causeway. This area was not included due
to these low numbers, plus the fact that much of the area is made up of
emergent marsh or mangroves and the primary constituent elements are
not present for the piping plover. There are no data to support the
presence of piping plover at the Copano Bay bridge site, and there is
not much habitat available for the bird except in extreme low tide
events. The Texas Pt. to McFaddin National Wildlife Refuge in Jefferson
County is a very highly erosive narrow stretch of beach, and it is
likely that very few birds would be present. The area of Tule Lake in
Nueces County was not censussed in 1991, but 8 birds were found in
1996. This site is highly developed all around, and we determined that
the characteristics of this area do not provide for the long-term
essential needs of the piping plover. Redfish Bay in Nueces County
supported 83 birds in 1991 and 20 birds were seen in 1996. Thus, this
site could have been proposed for critical habitat designation.
However, in order to include areas in this final rule, we would have to
include them in our proposed designation and allow the public an
opportunity to comment on their inclusion. As we stated in our response
to Comment B.1 above, we may revise the critical habitat designation in
the future if sufficient new information supports a change.
Furthermore, areas outside the critical habitat designation will
continue to be subject to conservation actions that may be implemented
under section 7(a)(1) and to the regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the section 9 take prohibition.
Comment 4: One commenter requested to see the data upon which Yent
Bayou (unit FL-10) was chosen as critical habitat for piping plover
because their data do not support such a designation. Yent Bayou is a
good site
[[Page 36045]]
for many shorebirds, but not for piping plover.
Our Response: We do not agree with the commenter. The 1996
International Census documented 11 birds; Sprandel et al. (1997)
documented 12 during the winter of 1993-94; Climo (1998) visited Yent
Bayou 21 times between 1993 and 1996 and saw an average of 5.1 piping
plovers per visit.
Comment 5: At a public workshop, the Service failed to present
scientific data supporting the inclusion of any portion of Marco Island
in a critical habitat designation. There is no peer-reviewed published
scientific literature to indicate that Florida or Marco Island beaches
are essential to plover recovery.
Our Response: Although we did not present data at the workshop,
designation of unit FL-27 at Marco Island was based on ample
documentation that shoals at the north end of the island are regularly
used by piping plovers. Individuals with expertise in plover biology
wrote the piping plover recovery plans. The revised Atlantic Coast and
Great Lakes populations recovery plans were peer-reviewed and they
specifically mention Marco Island as essential for conservation of the
plover. We have also reviewed available information from the 1991 and
1996 International Censuses (including field reports and notes) and the
often-substantial data from local birders and ornithologists. Other
publications used to evaluate Florida habitat included a ``Winter
Shorebird Survey'' published by the Florida Game and Fresh Water Fish
Commission (Sprandel et al. 1997), a thesis titled ``A landscape-level
analysis of piping plover (Charadrius melodus) winter habitat'' by Lisa
Climo (1998), and a thesis titled ``Distribution and other ecological
aspects of piping plovers (Charadrius melodus) wintering along the
Atlantic and Gulf Coasts' by Janice Nicholls (1989). While it would
always be desirable to have more data, the critical habitat
designations are based on the best scientific data available.
Comment 6: Marco Island is unlike other beaches proposed to be
designated as critical habitat in that it is completely developed.
Our Response: With the reduction of the FL-27 (Marco Island) unit's
size from the proposed rule, much of the highly developed areas are no
longer included in the designation. We believe the new boundaries fully
cover the areas regularly used by piping plovers and allow for the
movement of sand bars and tidal flats. In general, if the primary
constituent elements are present and we make a determination that the
area is essential for the conservation of the species, the degree of
development is irrelevant to critical habitat designations, except to
the extent that there might be economic or other impacts that could
outweigh the benefits of designating critical habitat. The final
Economic Analysis did not identify economic impacts at Marco Island
that suggested that this area should be excluded.
Comment 7: Marco Island is the northernmost of the Ten Thousand
Islands. Virtually all of the other islands cannot be developed, so
they would make ideal plover habitat without interfering with human use
of beaches on Marco Island. Why was Marco Island (unit FL-27) proposed
for designation as critical habitat, while other populated areas, such
as Naples, Florida, were not nor were isolated beaches, such as at
Keewaydin Island or the 50 miles of the Gulf coast south of Marco
Island?
Our Response: The entire coastline of Lee and Collier Counties,
including Marco Island and the Ten Thousand Islands, has been surveyed
for shorebirds for many years. Naples lacks an inlet like Big Marco
Pass, and the Ten Thousand Islands generally lack beaches or mud flats
suitable for these birds. We have been provided reports of piping
plovers using several sites near Marco Island, but do not have evidence
of regular, repeated use that would indicate that they are essential to
the conservation of the species. There is ample evidence that the
critical habitat units designated in this rule are regularly used by
piping plovers, and that other areas, including the coast south of
Marco Island, are not.
Comment 8: Designating Marco Island beachfront as critical habitat
will encourage the Service to create conditions favorable to the
plover. This will encourage the plover to become established in an
artificially created area in contrast to its long-term interest of
using areas of lesser human presence.
Our Response: While the proposed rule included Marco Island's
developed beachfront, nearly all of that developed beachfront has been
excluded from the final rule based on data received during the comment
period showing that piping plovers do not use that part of the beach.
With regard to artificially created habitat, designation will not
automatically require creation of wintering habitat for piping plovers.
However, if it is possible to improve wintering habitat constituent
elements as part of a Federal project, we will likely recommend such an
action.
Comment 9: Piping plover habitat at Marco Island consisting of the
intertidal area is ephemeral, has undergone significant changes over
the last decade as a result of coastal processes and will, consistent
with prior history, eventually degrade to the point where foraging
habitat for the plover may no longer exist.
Our Response: Almost all piping plover wintering habitats are
dynamic, consisting of beaches and flats that erode, accrete, or change
position over time. We have included in our textual unit descriptions,
the definitive legal source on unit boundaries, areas to the MLLW to
insure that this critical habitat designation adequately captures the
shifting primary constituent elements of critical habitat.
Comment 10: The scientific literature has shown that, on the
wintering grounds, piping plovers generally are restricted to sand
flats and intertidal areas, not beaches such as on the majority of
Marco Island. The proposed critical habitat unit FL-27 at Marco Island
includes large areas, mostly beaches, that are not used by wintering
piping plovers. The unit should be reduced in size to cover only the
sand flats and intertidal areas at Sand Dollar Island and Tigertail
Beach at the north end of the island.
Our Response: The comment refers to the heavily developed portion
of Marco Island's beach south of Tigertail Beach, that we now know is
used little, if at all, by piping plovers. This area was removed from
the FL-27 critical habitat unit.
Comment 11: One commenter noted that the boundaries of unit FL-27
at Marco Island extend far beyond the boundaries of a Critical Wildlife
Area designated by the Florida Fish and Wildlife Conservation
Commission to conserve shorebirds, especially breeding ones. Two other
commenters provided data on piping plover use of the Marco Island area
and aerial photographs.
Our Response: We used the survey information and aerial photographs
in adjusting the boundaries of the FL-27 critical habitat map unit. The
southern boundary is now at the southern limit of sandbar formation
since 1952. This southern boundary coincides with the southern boundary
of the Critical Wildlife Area. The revised northern border of the
critical habitat map unit includes isolated sand bars that are forming
from just north of Sand Dollar Island to Coconut Island, but excludes
Hideway Beach. The landward boundary does not extend inland from the
vegetation line because this part of the island appears to be
accreting. The seaward boundary extends only far enough to cover areas
with sandbars. We believe the new boundaries fully cover the areas
regularly used by piping
[[Page 36046]]
plovers and for the expected movement of sand bars and tidal flats.
Comment 12: A few commenters stated that the NC-10 unit needs to
reflect the continuity of habitat at this site. The narrative does a
good job of describing the site, which includes the sandy shoal islands
within the inlet. But the designated areas on the map leave out the
sandy shoal islands within the inlet. The map should be drawn as one
contiguous unit.
Our Response: The sandy shoal islands referred to are northeast of
the inlet. Trying to include all sandy shoals visible would have made
NC-10 extremely large. We believe that NC-10 as described in the unit
description is sufficient for conservation of the species in this area.
Piping plovers still have protection under the Act whether they are
within critical habitat or not.
Comment 13: What effect will the final designation have on
vehicular access to areas that already allow beach driving within
critical habitat units?
Our Response: Only actions involving a Federal agency are regulated
by critical habitat. On non-Federal lands, beach driving is not
regulated under the Act unless take of a listed animal is involved.
Take of a listed animal could be authorized by an incidental take
permit (ITP) from the Service. An ITP would be required regardless of
critical habitat if take is involved. The issuance of the ITP is a
Federal action and the decision to issue the ITP will include an
evaluation of the effects to critical habitat. In most cases, measures
to avoid and minimize harm would be incorporated in a habitat
conservation plan that includes driving.
For lands under Federal control (National Park Service, Air Force,
etc.) the managing agency is responsible for ensuring that their
actions do not jeopardize the continued existence of, or destroy or
adversely modify critical habitat, of listed species. Often times, the
managing agency is able to control impacts to listed species from beach
driving by redesigning routes and beach access points, and by
temporarily closing off specific areas during critical seasons.
Comment 14: The critical habitat designations for North Carolina,
South Carolina, Georgia, and Florida are conservative overall, as
fairly discrete sites were selected. However, it seems a more
comprehensive approach was taken for the selection of sites along a
majority of the Gulf Coast from Alabama to Texas.
Our Response: Based on comments received, we have refined our
critical habitat designation to the maximum extent possible to include
only those areas that have documented consistent use by piping plovers
and removed all areas that do not have consistent use documentation.
This was done in order to ensure consistency in the designation of
critical habitat units for all States. The configuration of habitat
units differs across the wintering range as a result of basic
differences in beach morphology throughout the South Atlantic and Gulf
of Mexico.
Comment 15: It would be more cost-effective for the Service to
designate all critical habitat for the Perdido Key and Choctawhatchee
beach mice as critical habitat for the piping plover, since those
species are already being monitored.
Our Response: Designating critical habitat for piping plovers based
on the existence of critical habitat and monitoring for another listed
species does not meet our requirements under 50 CFR 424.12(b). In this
case, critical habitat must be based upon a consideration of the
physical and biological features essential to the conservation of the
piping plover.
Comment 16: One landowner in Louisiana voiced concern that his/her
property was within proposed critical habitat boundaries even though it
does not contain piping plover habitat.
Our Response: We recognize that not all parcels of land within the
initially proposed critical habitat designation contain the habitat
components essential to piping plover conservation. Since the initial
proposal, we have refined our critical habitat maps to exclude, to the
maximum extent possible, those specific areas that are not currently
believed to contain the constituent elements of piping plover habitat.
Areas that do not contain the primary constituent elements, but are
included in the textual unit descriptions, are not, by definition,
considered critical habitat.
Comment 17: Coastal land loss in Louisiana is more important than
development in affecting critical habitat; the Service should shift its
focus to fighting coastal land loss.
Our Response: We agree that coastal land loss is a major factor
affecting piping plover wintering habitat. We represent the Department
of the Interior on the Louisiana Coastal Wetlands Conservation and
Restoration Task Force. That Task Force oversees planning, evaluation,
funding, and implementation of projects funded under the Coastal
Wetlands Planning, Protection and Restoration Act. The projects
approved to date by the Task Force are expected to protect and restore
nearly 95,000 net acres of coastal wetlands in Louisiana. That,
however, does not relieve us of our obligation to designate critical
habitat for the piping plover.
Comment 18: The designation of piping plover critical habitat on
Grand Isle, Louisiana, could adversely impact the economy by curtailing
recreational uses and limiting development of homes and businesses on
the island.
Our Response: We have refined our critical habitat unit description
since the initial proposal to include only those areas of Grand Isle
that contain the primary constituent elements. On Grand Isle, that
habitat is found seaward of the hurricane protection levees. We do not
anticipate the development of homes or business in that area. We
believe that the effect of normal human presence on piping plovers in
their wintering habitat does not have serious consequences at the
population level, and we do not expect this designation to affect
recreational beach use.
Comment 19: Uninhabited barrier islands near Grand Isle, Louisiana,
provide ideal habitat for piping plovers. The Service should work with
local agencies to restore those islands rather than designate critical
habitat on Grand Isle.
Our Response: We agree that some of those islands contain piping
plover habitat; however, we are required to designate critical habitat
based on the biological or physical constituent elements essential to
the conservation of the species. The portions of those islands
(including Grand Isle) that met those criteria and where survey data
indicated consistent use by piping plovers were included in critical
habitat.
Comment 20: Beach maintenance activities conducted by the Harrison
County Development Commission (HCDC), Mississippi, are important in the
overall protection of the seawall and U.S. Highway 90, and in
maintaining sufficient habitat for piping plovers. HCDC supports the
critical habitat designation provided it would not prohibit them from
carrying out their mandate to maintain the beach in Harrison County,
Mississippi.
Our Response: We agree that beach maintenance activities are
important for the protection of seawalls, highways, and piping plovers.
In general, we have found that beach nourishment activities can be
timed and designed to minimize effects on piping plovers. We do not
expect this designation to affect those beach maintenance activities.
Comment 21: At TX-12 (adjacent to Naval Air Station), the polygon
provided by the Service for the critical habitat area appears to
include a small part of the airfield.
[[Page 36047]]
Our Response: It was impossible to map all sites exactly within the
time constraints directed by the court to publish the proposed
designation. Only those areas within the textual unit descriptions that
contain the essential elements necessary to support the piping plover
are considered critical habitat.
Comment 22: We recommend that only land portions of South Bay be
included in Texas Unit 1 and that the interior of the Boca Chica
peninsula be excluded. Designation of the entire bay area as critical
habitat seems excessive.
Our Response: Only those land portions in South Bay that have the
piping plover primary constituent elements are considered critical
habitat. If portions of the land masses that have been designated
change, either due to natural events such as gradual accretion or
erosion or storm events, or man-made causes such as the placement of
dredge material, then these changing areas will be considered critical
habitat when the primary constituent elements are present. The Boca
Chica peninsula is an ever-changing land mass with accretion and
erosion rates that cannot be fixed on a map. Therefore, only those
areas on the peninsula that contain the primary constituent elements
(i.e., support the piping plover for roosting and feeding) will be
considered critical habitat.
Comment 23: We recommend including less of the interior area of
South Padre Island (TX unit 3). Known use of these islands by piping
plovers appears to be concentrated on the beach areas and exposed flats
of both islands. The inclusion of interior areas appears to be
inconsistent with the shore areas designated elsewhere along the coast.
Our Response: There are areas of the interior of South Padre Island
where piping plovers have been sighted. We included interior areas that
are not sand, mud, or algal flats, because piping plovers use flats for
foraging and sparsely vegetated areas for roosting purposes, and these
areas are also needed for roosting during storms and strong winds.
Comment 24: We recommend including less of the interior area of San
Jose Island (TX Unit 18). Known use of these islands by piping plovers
appears to be concentrated on the beach areas and exposed flats of both
islands. The inclusion of interior areas appears to be inconsistent
with the shore areas designated elsewhere along the coast.
Our Response: San Jose Island is composed of a variety of habitats
that support the piping plover. Although there are portions that do not
contain all of the primary constituent elements needed by the plover,
aerial photographs indicate that piping plover habitat is present on
San Jose Island. Most of the designated inland areas on San Jose Island
(TX 15 and TX18) are relict hurricane washover passes, known to be
preferred piping plover habitat. Thus, it is suitable bayside habitat
that is somewhat lacking in this portion of the Texas Coast, and we
have included it in the designation. See our response to B. 23 above
for a discussion on the importance of interior habitat.
Comment 25: It appears that potential habitat in south and east
sides of Galveston Bay has not been included, and should be.
Our Response: No specific sites were suggested. However, potential
piping plover habitat exists on the south and east sides of Galveston
Bay, as well as along the shorelines, flats, beaches, and disposal
areas throughout Galveston and other Texas bays. Although piping
plovers are occasionally seen at many of these sites, we have not
designated areas unless they have consistent piping plover use. Five
sites on the upper Texas Coast (TX-36, TX-35, TX-34, TX-31, and TX-27)
have accounted for well over 90 percent of sightings during the
previous three International Piping Plover Winter Censuses and these
areas are included in the final designation.
Comment 26: The piping plovers that occur on the Sunset Lake Park
area and other natural resources and public use values are already
protected by an existing conservation easement. The Sunset Lake Park is
already uniquely protected and preserved as a park under this easement
and the park use designation by the City. The Act and Migratory Bird
Treaty Act (MBTA) and the Sunset Lake Conservation Easement already
provide adequate protection while enabling other compatible park
recreational uses. Critical habitat designation will not help focus
conservation activities for the species at Sunset Lake anymore than is
already available for this public park operated under the existing
easement.
Our Response: The conservation easement for Sunset Lake protects
the body of the lake and the improvements to the natural wildlife
habitat and sightseeing amendments. The area outside of the lake proper
where piping plovers have recently been sighted is in the highway
right-of-way adjacent to the lake. Highway reconstruction or
improvements may cause direct or indirect impacts to this important
habitat. The highway right-of-way is outside of the conservation
easement. In addition, the easement does not provide adequate special
management for the piping plover which can only be adequately provided
by a legally operative plan that addresses the maintenance and
improvement of the primary constituent elements important to the
species, and manages for the long-term conservation of the species
(i.e., implements conservation management strategies and provides for
periodic monitoring). Therefore, the existing special management is
insufficient to satisfy the requirements of the definition of critical
habitat. Additionally, the publicity and heightened awareness of a rare
bird's presence should help to support Sunset Lake's Conservation Plan
by bringing additional bird-watchers and wildlife enthusiasts to the
area, potentially creating an increase in economic value of the Sunset
Lake.
It is also important to note that a critical habitat designation
has no effect on situations where a Federal agency is not involved. For
example, only private actions that involve Federal funding or a Federal
permit, and where the Federal agency determines that the proposed
action may affect a listed species or its critical habitat require
consultation.
The protection of the piping plover under the MBTA does not in any
way obviate our duties under the Act with respect to designating
critical habitat.
Comment 27: Nothing in the data indicates that piping plovers were
recorded from the vegetated portions of Unit TX-34. Data supporting the
designation of vegetated areas within the critical habitat proposal
does not exist. We request the Service to reconsider its proposed
designation of Unit TX-34.
Our Response: TX-34 (San Luis Pass flats and contiguous beach) is
considered one of five important piping plover aggregation sites on the
upper Texas Coast. Past winter surveys have found upwards of 20
wintering birds there. Curt Zonick's (1993) study entitled ``Ecology
and Conservation of Wintering Piping Plovers and Snowy Plovers,''
ranked San Luis Pass second of eight important Texas sites in density
and fourth in population (average of 33.7 piping plovers). Sparsely
vegetated areas as described in the ``Primary Constituent Elements''
section of this rule are used by the piping plover as roosting habitat
in this unit.
Comment 28: Based on the habitat assessment performed on October
12, 2000, a review of 1995 and 1997 color aerial photographs, and U.S.
Geological Survey (USGS) 7.5 minute quadrangle maps, most of Unit TX-34
does not contain the primary constituent elements essential for the
conservation of wintering piping plovers. At least 17 percent (250 ac)
of the unit is vegetated and does not provide foraging, roosting,
[[Page 36048]]
or resting habitat. Additionally, the majority of the beach within the
proposed unit is very narrow and does not provide optimum habitat. The
majority of the unit north of Highway 3005 consists of open water and
should not be considered a primary constituent element of critical
habitat.
Our Response: See our response to Comment B.27 above. Only those
areas within the unit boundary, as described in the regulatory section
of this rule, that provide the primary constituent elements for the
piping plover are considered critical habitat. The critical habitat
boundaries, as described in the regulatory section of this rule, stop
landward where densely vegetated habitat, not used by the piping
plover, begins and where constituent elements no longer occur.
Comment 29: The biological information obtained for Unit TX-34 does
not provide sufficient information supporting the designation of
critical habitat for piping plover. Only 2 percent of the piping plover
sightings during the 1991 and 1996 Texas mid-winter surveys were
recorded from the San Luis Pass area.
Our Response: While piping plover counts during winter survey
periods have indeed been low, it should be noted that winter censuses
have occurred for the most part during extreme low tidal events when
both beach and tidal pass counts along the entire upper Texas Coast
were very low. Other informal counts at this site, including a 1992
Service field study on file at our Clear Lake Field Office, and Curt
Zonick's definitive 1991-93 study (see our response to Comment B.27
above) show clearly that this site is consistently used.
Comment 30: Since the northern Gulf beaches of Unit TX-34 are very
narrow, and since Zonick and Ryan (1996) demonstrated a positive
correlation between beach width and piping plover densities, these
areas should not be included in the critical habitat proposal.
Our Response: Only those beaches shown to be consistently used by
piping plovers, according to previous wintering bird censuses, are
included in the designation.
Comment 31: A very commendable job has been done in setting aside
critical habitat areas along the long coast of Texas, but we note what
appears to be the significant omission of any area near the mouth of
the Sabine River at the Texas-Louisiana State Line. There should be
some appropriate beach and dune area between the Bolivar Peninsula and
the Sabine River. While the west bank of the Sabine is marshland, we
understand that there is a good area for plovers at or near Sea Rim
State Park where, for example, plovers were found in both 1997 and
1998.
Our Response: While potential habitat exists along this extensive
beach area, and while piping plovers are occasionally seen along this
stretch of beach, winter counts and other studies have failed to show
consistent use here.
Comment 32: Several commenters requested that Rollover Bay and the
surrounding area not be designated as critical habitat for the piping
plover. They feel that Rollover Bay is inconsistent with the Service's
criteria for critical habitat. Rollover Bay and Pass is a major
recreational area for the citizens of Texas and other States to enjoy
fishing, boating, crabbing, and wading. Thousands of visitors come to
Rollover Bay and Pass annually. The Intracoastal Waterway also crosses
Rollover Bay. From time to time, the Army Corps of Engineers dredges
sand from the waterway to renourish the beaches of Bolivar Peninsula,
in order to keep the waterway open. This is done normally during the
winter months. At this time the Texas General Lands Office (TGLO) and
Galveston County are planning to dredge sand from Rollover Bay to
renourish the beaches at Gilchrist and Caplin. This project will be one
of the first major nourishment projects in Texas history. This project
is vital to the above two communities. The Bolivar Peninsula Beaches
are used during the winter months for citizens to drive and walk along
hunting sea shells. This is also vital to the economy of their
communities. Eight miles west of Rollover Bay there are 37 miles of
beaches, and between High Island and Sabine Pass, thousands of acres of
wetlands, and wildlife refuges that can be designated as critical
habitat for the piping plover. They would not be disturbed by the
public there because there is no highway for the public to get there.
Highway 87 has been closed off and on for the past 18 years and
completely for the last 11. We urge the Service to designate that area
as critical habitat for the wintering piping plovers.
Our Response: We acknowledge that the Rollover Bay and surrounding
area are heavily used recreation areas and currently the site of
important beach habitat restoration activities. The 1991 coast wide
survey by Texas Parks and Wildlife (Performance Report, Project No. 9.1
Piping Plover and Snowy Plover Winter Habitat Status Survey (Mitchell,
Zonick, and Withers)) identified the Rollover Bay flats as holding a
moderate winter population of piping plovers, an average of 12 birds
(11, 14, and 12) for 3 survey trips. The average of 1990 through 1996
Audubon Christmas Bird Count circles that included the Rollover Bay
area was 13 birds. The 1991, 1996, and 2001 International Piping Plover
Censuses found very low numbers of birds along the beaches between
Bolivar Flats and High Island, but these surveys were done by driving
and did not cover the Rollover Bay area. In summary, the Rollover Bay
site (TX-37) holds a moderate but consistent wintering piping plover
population. It is the only site shown to consistently hold wintering
birds along the Texas coast east of Bolivar Flats (TX-36), and should
be rated probably the sixth most important upper Texas coast wintering
site. It should be noted that past section 7 consultations involving
beach restoration in general, and this site in particular, have
supported beach restoration activities as improving the quality of
piping plover habitat in the long term by preserving and protecting
eroding beach habitat. We have not previously found that normal beach
recreation activities would significantly affect piping plovers or
their habitat in these types of areas, and we do not anticipate that
normal recreation would be restricted as a result of this designation.
Comment 33: Commenters note that some areas of the Gulf coast were
not proposed despite the fact that they are not developed and that they
have all of the primary constituent elements of critical habitat. For
example, the area between Rollover Pass, Texas, and the Louisiana/Texas
state line appears to meet the requirements for piping plover wintering
habitat. Similarly, the Gulf of Mexico shoreline on the last few miles
of the western end of the Ft. Morgan peninsula, the shoreline of the
Bon Secour National Wildlife Refuge's Perdue Unit, and other stretches
of shoreline along the peninsula appear to meet the requirements for
critical habitat. They question why these and similar shoreline areas
have not been included in the proposed critical habitat designation.
They assert that where census data are inadequate to prove consistent
use by the wintering piping plover, the habitat in question contains
the physical and biological features essential to the species, and the
Service should include the area in the designation of critical habitat.
Our Response: We, and most ornithologists, assume that areas
consistently holding aggregations of this species are essential to the
conservation of the piping plovers. Therefore, this designation was
primarily based on areas of consistent use that contain one or more of
the primary constituent elements. We did not consider it in the
[[Page 36049]]
best long-term conservation interests of the piping plover to designate
critical habitat where it is only infrequently known to occur. However,
should new information become available to support the need to
designate critical habitat in other areas, we will consider amending
this designation.
Comment 34: Commenters request that the Service take under
consideration the designation of portions of Long Island, Texas,
located in Cameron County, Texas, as critical habitat for the piping
plover. They feel that their close proximity to the current designated
area and the physical and biological features of their island warrant
serious consideration.
Our Response: While potential habitat exists along this extensive
area, and while piping plovers are occasionally seen, survey counts and
other studies have failed to show consistent populations here and we
have not been able to conclude that these areas are essential to the
conservation of the species.
Comment 35: The burden should be placed on the Service to prove to
the land owners that their property is piping plover habitat and then
negotiate with them the protection of the area. Almost the entire
island from Gulf to Bay, including upland areas in the middle of South
Padre Island, was designated as critical habitat. That is not fair or
correct.
Our Response: The South Padre Island community encourages
protection of wildlife areas. We do not expect any additional burdens
placed on landowners, or the need for negotiation for protection of the
area. Only private activities with Federal sponsorship that may affect
the piping plover or its critical habitat require the Federal agency to
consult with us. Although the piping plover's feeding habitat is
located on mud, sand, and algal flats, upland areas with sparse
vegetation offer the birds roosting habitat which is also important for
its survival.
Comment 36: The spoil island area in Ingleside Cove was not
included for consideration. It meets the criteria listed in the Federal
Register for wintering piping plovers: intertidal beaches and flats,
sand and/or mud flats with no or very sparse emergent vegetation.
Piping plovers have been sighted in the spoil island area in Ingleside
Cove Wildlife Sanctuary for many years, and it is possible that they
may winter on the uninhabited spoil islands that border the Cove. Is
the area around Ingleside Cove considered designated critical habitat
for wintering piping plovers? These plovers have been sighted in
Ingleside Cove Wildlife Sanctuary for many years, and commenters have
felt that they may winter on the uninhabited spoil islands that abut
the Cove.
Our Response: We have not collected any data that indicate piping
plovers use this area, and since the proposed designation was based on
known scientific surveys for consistent usage by the birds, we did not
propose that area as critical habitat. We will, however, attempt to
survey this site in the future.
Comment 37: The Cayo del Grullo arm of Baffin Bay and the tidal
flats along Highway 48 from Highway 100 to where it intersects at
Highway 48 were left out of the critical habitat designation. Plovers
can be seen feeding near Vattman Creek near Kaufer-Hubert Memorial
Park.
Our Response: Based on surveys performed in these areas, piping
plovers do not use the areas consistently, and since the proposed
designation was based on consistent use from known scientific surveys,
we did not propose these areas for designation.
Comment 38: One commenter asked if the flats in Alazan Bay are used
by piping plovers.
Our Response: We have not located any data to indicate that piping
plovers use this area, and because the proposed designation was based
on known scientific surveys for consistent use by the birds, we did not
designate this area as critical habitat.
Comment 39: One commenter asked about Powderhorn Lake in Calhoun
County. The Service owns the Whitmire Unit of Aransas National Wildlife
Refuge. Those flats are used by lots of shorebirds.
Our Response: We have not located any data to indicate that piping
plovers use this area, and because the proposed designation was based
on known scientific surveys for consistent use by the birds, we did not
designate this area as critical habitat.
Comment 40: Many residents of Padre Island oppose making the area
of Pt. Aransas down to Pt. Mansfield nesting grounds for this or any
bird species.
Our Response: This rule is issued to designate critical habitat for
the wintering population of piping plovers, not nesting piping plovers,
as these birds nest in the northern parts of the United States and
Canada.
Issue C: National Environmental Policy Act (NEPA) Compliance
Some commenters expressed concern about our alleged failure to
comply with NEPA.
Comment 1: The Service did not adequately comply with the
requirements of the National Environmental Policy Act (NEPA). The
decision to forego preparation of an Environmental Assessment (EA) and
an Environmental Impact Statement (EIS) is based on reasons published
in the Federal Register in 1983. Much has happened since 1983, and an
EIS is required to properly analyze the full range of impacts of the
designation, including social and economic effects. Contrary to species
listings, where only the status of the species can be considered,
critical habitat designation requires consideration of the economic and
other relevant impacts of the designation. The commenters believe such
considerations should be subject to a formal public process such as
NEPA.
Our Response: The commenter is correct that we determined, for the
reasons stated in a Federal Register notice published on October 25,
1983 (48 FR 49244), that neither an EA nor an EIS is required for
actions taken under section 4(a) of the Act, including designation of
critical habitat. We believe that the reasons for this determination
remain valid despite the passing of nearly 18 years since our original
determination. In addition, the economic impacts of the designation
were analyzed in the Final Economic Analysis and considered in making
this final determination. Finally, the public involvement and
notification requirements under both the Endangered Species Act and
Administrative Procedure Act provide ample opportunity for public
involvement in the process.
Comment 2: Council on Environmental Quality Regulations (50 CFR
1502.21) state that no material may be incorporated by reference unless
it is reasonably available for inspection by potentially interested
parties within the time allowed for comment. The Federal Register
document (48 FR 49244) referenced in the Service's determination that
an EA or EIS is not necessary is not reasonably available.
Our Response: That document, as well as any other information
supporting this designation, is available by following the instructions
provided under the FOR FURTHER INFORMATION CONTACT section in both the
proposed and final rules. We believe this easily-reachable source meets
the requirements on the availability of supporting information.
Comment 3: According to a decision in Catron County Board of
Commissioners v. United States Fish and Wildlife Service, 75 F3d 1429
(10th Cir. 1996) and Oregon Natural Resources Council v. Lyns, 882 F2d
1417 (9th Cir. 1989), the Service must prepare an EA on critical
habitat
[[Page 36050]]
designation. In Catron County, the court noted that the Acts'
procedures do not displace the NEPA requirements when critical habitat
is proposed. The Service should follow Catron County, rather than
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), because the
piping plover wintering critical habitat includes state and private
lands, not just Federal land.
Our Response: The Service acknowledges that the Tenth Circuit Court
of Appeals determined in Catron County that NEPA requirements apply to
designation of critical habitat. However the Ninth Circuit Court of
Appeals held in Douglas County v. Babbitt that NEPA does not apply to
the Service's designation of critical habitat because Congress intended
that the Act's critical habitat procedures displace the NEPA
procedures, NEPA is inapplicable to actions that do not change the
physical environment, and the application of both NEPA and the Act's
requirements would frustrate both statutes. The Ninth Circuit did not
limit its decision to cases involving only Federal lands, holding
instead that the public notice provisions and opportunities for comment
under the Act's provisions were adequate to serve the NEPA function.
Our current practice is to require NEPA compliance for designation of
critical habitat only where the critical habitat designation is located
within the Tenth Circuit (the states of Colorado, Kansas, Nebraska, New
Mexico, Oklahoma, Utah, and Wyoming). That is not the case here. The
decision in Oregon Natural Resources Council v. Lyng dealt with a U.S.
Forest Service timber sale and is not applicable to the critical
habitat designation issue.
Comment 4: While there may be some overlap between the requirements
of the ESA and NEPA, NEPA requires Federal agencies to look at the
short- and long-term effects of their actions, as well as cumulative
effects, which the ESA does not. The public and other Federal agencies
have raised legitimate concerns that can only be properly analyzed
through the NEPA process.
Our Response: We disagree that NEPA is required for this action. We
believe we have fully considered the relevant impacts of designation,
as required by the ESA, and have found that these impacts are too
insignificant to warrant a detailed analysis under NEPA.
Issue D: Legal Issues
Numerous commenters raised issues pertaining to compliance with the
Act or with other laws and regulations (excluding NEPA issues).
Comment 1: Critical habitat may conflict with the public policy of
the State of Texas, that stresses the need for open access to beaches
for use by the public. Is this proposal subject to review by the Texas
Coastal Management Program? There is potential for conflict between the
designation and the Texas Open Beaches Act.
Our Response: The designation of critical habitat is not a listed
activity in the Coastal Management Plan for Texas, and therefore is not
subject to consistency review. The Coastal Coordination Council does
have the opportunity to look at impacts to federally listed species and
their critical habitat when reviewing permit applications and other
projects.
Comment 2: In Texas, a mineral owner has unquestioned right to use
as much of the surface as may be necessary to explore for oil, gas, and
other minerals. The Federal Government should not pass laws that usurp
State laws without providing just compensation to those affected.
Our Response: As stated in the proposed and final rules, we do not
expect critical habitat designation to result in restrictions beyond
those that resulted from the species' listing. We, therefore, see no
conflict with existing State laws governing mineral exploration.
Comment 3: The court order does not require the Service to
designate wintering habitat for the piping plover, only that critical
habitat be designated for the Great Lakes and Great Plains populations.
Our Response: The commenter is correct in that the court ordered us
to designate critical habitat for the Great Lakes and Great Plains
populations of piping plover. As discussed throughout this rule,
critical habitat includes those areas essential to a species'
conservation. Piping plovers spend up to 10 months a year on the
wintering grounds. Wintering grounds provide for an essential part of
the species' life cycle. Without adequate conservation of wintering
habitat, recovery of the species would be limited.
Comment 4: For the proposed rule, the Service drew broad boundaries
and then excluded areas (e.g., buildings) within those areas. The only
way to exclude areas from critical habitat is through 4(b)(2) of the
Act, that requires an affirmative determination that the benefits of
excluding an area outweigh the benefits of including it as critical
habitat. No such cost-benefit analysis was provided in the proposal.
Our Response: Areas designated as critical habitat must meet the
legal definition of critical habitat provided in this final rule. One
prong of the definition is that an area must contain the physical or
biological features essential to the conservation of the species
concerned. Human-made structures do not contain such features and
therefore do not meet the definition of critical habitat.
Comment 5: Critical habitat designation will provide opportunities
for third parties to sue in order to stop activities like recreational
use of the beach. In Palila v. Hawaii Department of Land and Natural
Resources, 639 F. 2d. 495 (9th Cir. 1981), the court issued a mandatory
injunction to eliminate the State's use of critical habitat in a way
that was preventing the use of the habitat by the palila.
Our Response: The primary authority for third parties to sue to
enjoin activities that harm endangered and threatened species is found
in the citizen suit provision of the Act, 16 U.S.C. 1540(g)(1), that
authorizes anyone to file suit to enjoin violations of the Act. Section
9 of the Act, 16 U.S.C. 1538(a)(1)(B) makes it unlawful for any person
to ``take'' an endangered or threatened species. The Service's
regulations define ``take'' as including actions that are likely to
lead to the death or injury of threatened or endangered wildlife.
Palila v. Hawaii Department of Land and Natural Resources was a citizen
suit brought to enjoin the State of Hawaii from ``taking'' an
endangered species by allowing goats to destroy the species' habitat.
Neither section 7 consultation nor the designation of critical habitat
were the basis of the suit. We do not expect that the designation of
critical habitat for the wintering population of piping plover will
increase the possibility of third party suits to enjoin use of beaches
for recreational purposes.
Comment 6: In Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154
(1997), the Supreme Court cautioned that the requirement that the
Service use the best scientific information available serves to
``ensure that the Act is not implemented haphazardly, on the basis of
speculation or surmise.'' Although the cited case involved section 7
consultation, the same caution should be exercised in actions under
section 4, such as designating over 1,600 miles of shoreline based on
inconclusive or unavailable data.
Our Response: We disagree that the critical habitat designation is
based on inconclusive or unavailable data. The Act requires that our
decisions be based on the best scientific and commercial information
available. All areas chosen have documented consistent use by piping
plovers and are limited to areas within the designated units that
currently contain the principal
[[Page 36051]]
biological and physical features essential to the piping plover. In
addition, an estimated 32 pairs remain of the endangered Great Lakes
breeding population of piping plovers. Data show that this population
uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer 2000).
Additional areas are likely used by Great Lakes piping plovers, as most
birds have not been accounted for in winter. Therefore, identification
of essential habitat should not rule out any sites where piping plovers
consistently over-winter until the wintering distribution of the Great
Lakes population can be more accurately defined (USFWS 1999). Based on
these numbers, as well as other supporting site data, we have concluded
that most sites with consistent occurrence of piping plovers should be
designated as critical habitat in order to provide for the recovery of
the species.
Comment 7: Commenters called into question our conclusion that the
designation will not have significant takings implications under the
Fifth Amendment to the U.S. Constitution. They claim the Service needs
to address takings implications as per the Supreme Court's rulings in
such cases as Lucas v. South Carolina Coastal Commission, 505 U.S. 1003
(1992); Penn Central Transportation Company v. City of New York, 438
U.S. 104 (1978);. Pennsylvania Coal Company v. Mahon 260 U.S. 393
(1922); and Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v.
California Coastal Commission, 483 U.S. 825 (1987).
Our Response: As discussed in our responses to economic comments,
the economic analysis found that designation of critical habitat would
have no significant economic effect above that already imposed by
listing. The primary effect of critical habitat designation on private
property is to identify areas important for the conservation of the
species. In addition, if a Federal action occurs on those private
lands, such as issuance of a Clean Water Act section 404 permit, the
Federal action agency would be required to consult with us pursuant to
section 7 of the Act if that action may affect the piping plover,
regardless of whether that habitat is officially designated critical
habitat. If such a Federal nexus exists, we will work with the
landowner and the appropriate Federal agency to ensure that the
landowner's project can be completed without jeopardizing the species
or adversely modifying critical habitat. Therefore, we do not believe
that designation of critical habitat will cause a property owner to be
deprived of such a substantial use of the property as to amount to a
Fifth Amendment taking.
Comment 8: Failure to properly consider the effects of the
designation through a Takings Implication Assessment violates Executive
Order 12630.
Our Response: Executive Order 12630 requires that Federal actions
that may affect the value or use of private property be accompanied by
a takings implication assessment. For the reasons discussed above, we
have complied with the requirements of the Executive Order.
Comment 9: The Regulatory Flexibility Act requires that agencies
consider the effects of their actions on small businesses, small non-
profit enterprises, and small local governments. If the action is
expected to be significant, an initial regulatory flexibility analysis
must be published with the proposed rule. If, as the Service did here,
the agency certifies that the proposed rulemaking is not expected to be
significant, it must publish with the certification a statement
providing a factual basis for such a conclusion.
Our Response: The Regulatory Planning and Review section of the
proposed rule (65 FR 41794) discussed our reasons for determining that
this action will not have significant economic effects on the small
entities listed by the commenter. We believe this constitutes a
statement providing the factual basis for our determination.
Issue E: Section 7 Consultation Issues
A number of commenters, particularly Federal agencies, expressed
concerns or had questions regarding the effects of designation on the
section 7 consultation process.
Comment 1: An unclear and ambiguous definition of what constitutes
adverse modification of critical habitat will result in varying
interpretations under section 7. The Service needs to more clearly
define adverse modification and allow review by Federal agencies in
order to assess the impact of designation on agency programs.
Our Response: Section 4(b)(8) of the Act requires that we provide,
in any proposed or final rule to designate critical habitat, a ``* * *
brief description and evaluation of those activities * * * which * * *
may adversely modify [critical]
habitat, or may be modified by such
designation.'' In the proposed rule, in the section titled ``Effects of
Critical Habitat Designation'' (65 FR 41792), we provided a relatively
detailed discussion of the types of programs that have typically
undergone section 7 consultation since the species was listed under the
Act. We identified the action agencies and programs conducting such
actions, and stated our belief that actions likely to adversely modify
critical habitat would likely also jeopardize the continued existence
of the species. We then provided a discussion of the types of
activities that we foresee may adversely modify critical habitat.
We acknowledge the commenter's implication that specific standards
should be given to properly advise citizens and Federal agencies as to
what programs may be affected by critical habitat designation, but find
such specificity impossible given the wide variety of projects and
ecological conditions occurring throughout the designation area. In
addition, the fact that we expect few or no restrictions to be imposed
through the consultation process beyond those that have existed since
the species was listed reinforces our belief that our discussion was
adequate to meet the requirements of section 4(b)(8) of the Act.
Comment 2: The Service has represented that no additional impacts
will result from critical habitat designation beyond those already in
place through the listing of the species and required consultation
under section 7 of the Act. This is premised on the argument that the
prohibition of jeopardy for listed species is nearly identical to the
prohibition against adverse modification of critical habitat. In
addition, the commenter cites 64 FR 31871-31872 as an example where the
Service has previously acknowledged that the adverse modification
standard (for projects affecting critical habitat) is not identical to
the jeopardy standard (for projects affecting listed species). Finally,
the Service requires that an analysis for a critical habitat
consultation be conducted independently from an analysis under the
jeopardy standard.
Our Response: With regard to the commenters' contention that we
have previously acknowledged the difference between jeopardy and
adverse modification, the citation provided by the commenter is from
our Notice of Intent To Clarify the Role of Habitat in Species
Conservation (June 14, 1999; 64 FR 31871-31874). On cited page 31872,
we stated ``According to our interpretation of the regulations, by
definition, the adverse modification of critical habitat consultation
standard is nearly identical to the jeopardy consultation standard.''
We also stated ``For almost all species, the adverse modification and
jeopardy standards are the same * * * It should be noted that while the
jeopardy and adverse
[[Page 36052]]
modification standards achieve similar results, the context of the
analyses differ i.e., jeopardy analyses examine effects to the species
while the adverse modification analyses examine effects to the habitat
that supports the species. When addressing impacts to occupied habitat,
effects to the habitat supporting the species will result in parallel
effects to the species. If these effects rise to the level of adversely
modifying designated critical habitat, then it is anticipated that
these effects would also be sufficient to result in a jeopardy
determination. We did acknowledge that in cases where unoccupied
habitat is involved there may be additional consultation requirements
because of critical habitat designation. However, we consider all
designated wintering piping plover critical habitat units to be
``occupied'' in the sense that, when the primary constituent elements
are present during the appropriate season, those features will be used
by piping plovers at least occasionally.
Finally, the commenter is correct that our analysis of a project's
effects on critical habitat and the analysis for the project's effects
on the species are conducted independently (50 CFR 402). However, this
has no bearing on our position that the results of the two analyses
will essentially be the same under the jeopardy and adverse
modification standards. This has been borne out as, after many years of
conducting section 7 consultation, there have been no instances in
recent times where a project was determined unlikely to jeopardize the
continued existence of a species while at the same time deemed likely
to destroy or adversely modify its critical habitat.
Comment 3: The final rule should include a clause that excludes
previously authorized Federal project areas from the definition of
primary constituent elements. Federal agencies are legally obligated to
conduct these actions when an agreement between the agency and non-
Federal sponsors exists. These types of projects should be
``grandfathered'' from the critical habitat designation.
Our Response: Federal actions that have already undergone section 7
consultation on the effects of the action on piping plovers, and that
were determined unlikely to jeopardize the continued existence of the
species, must undergo further consultation on the projects' effects to
critical habitat only in instances--(1) where the project has not
already been completed, and (2) where the Federal agency still has the
discretion within its legal authority to modify the project should it
be determined likely to adversely modify critical habitat. Where a
project has been completed, or where the action agency has no
discretion to modify the project, no further consultation would be
necessary.
In cases where a previously consulted-upon action could still be
modified within the agency's legal authority, and where that project
may affect critical habitat, reinitiation of consultation is required
(50 CFR 402.16). However, given that such a project would have already
received a non-jeopardy biological opinion from us, and since actions
unlikely to jeopardize the continued existence of the species would
also usually be unlikely to adversely modify critical habitat, the
project would likely proceed without additional constraints.
The Service has only had one jeopardy opinion issued for the piping
plover wintering population since its listing in 1986. The proposed
project was in Texas and was not undertaken for various reasons.
Comment 4: The Service should work with affected Federal agencies
and others whose programs depend upon Federal funding or permits to
develop general guidelines that can be used to expedite the
consultation process. In this way the effects of designation will be
minimized, especially if and when these guidelines are incorporated
into project designs.
Our Response: We agree with this recommendation and are prepared to
work with local interests in developing guidelines to guide and
expedite the section 7 consultation process. We invite interested
agencies and individuals to contact their local Service offices to
begin this programmatic consultation approach.
Comment 5: Commenters have asked how the final designation will
affect Federal and non-Federal projects currently under consideration
for authorization within critical habitat units.
Our Response: All landowners, public and private, are responsible
for making sure their actions do not result in the unauthorized taking
of a listed species, regardless of whether or not the activity occurs
within designated critical habitat. Take is defined as ``harass, harm,
pursue, hunt, shoot, wound, capture, collect, or attempt to engage in
any such conduct.'' Take is further defined by regulation to include
``significant habitat modification or degradation that actually kills
or injures wildlife,'' which was upheld by the U.S. Supreme Court in
Sweet Home Chapter of Communities for a Great Oregon et al. v. Babbitt,
515 U.S. 687 (1995).
All Federal agencies are responsible to ensure that the actions
they fund, permit, or carry out do not result in jeopardizing the
continued existence of a listed species, regardless of critical habitat
designation. ``Jeopardize the continued existence of'' means to engage
in an action that would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species (50 CFR 402.02). Because we designated
only areas within the geographic range occupied by the piping plover,
any activity that would result in an adverse modification of the
plover's critical habitat would virtually always also jeopardize the
continued existence of the species. Federal agencies must consult
pursuant to section 7 of the Act on all activities that will adversely
affect the plover both within and outside designated critical habitat.
The consultation process will change only to the extent that
Biological Assessments must consider the effect of the project on
critical habitat. However, we already need to consider the effect of
the project on habitat (in the absence of critical habitat designation)
based on the listing of the piping plover. Therefore, we anticipate
that the additional workload burden created by critical habitat will
not result in different outcomes of the jeopardy and adverse
modification standards.
Issue F: Public Involvement/Coordination
Several commenters expressed concerns about the adequacy of the
opportunity for public input and other coordination issues.
Comment 1: All landowners within the area affected by the
designation should have been notified.
Our Response: Given the wide-ranging nature of this designation,
the thousands of landowners involved, and the amount of time available
to complete the designation due to court order, contacting each
individual landowner within the proposed area was not possible.
However, we went well beyond the general notification requirements of
the Act and the Administrative Procedure Act. This included
notification of all State and local governments; mailings to over 898
interested parties; publication of notices in 23 newspapers; issuance
of press releases for each public hearing and comment period reopening;
and other informational materials. Given that we received over 6,000
letters of comment on the proposal, we believe that we adequately
publicized the proposed action. We regret any instances where
[[Page 36053]]
interested parties may have been unaware of the proposed designation,
but believe these instances are few.
Comment 2: The Service is attempting to implement critical habitat
without giving landowners adequate time to review the information.
Our Response: The initial public comment period on this action was
open from July 6, 2000, through September 5, 2000 (60 days). When the
draft economic analysis of the proposal was completed, we extended the
comment period until October 30, 2000 (65 FR 52691), and again until
November 24, 2000 (65 FR 64414), for a total extension of 80 days.
Finally, we reopened the comment period for 7 additional days (66 FR
11134) to accept further public comment on any and all aspects of the
proposal and associated economic analysis. The public therefore had 147
days of open comment period on the proposed rule, and 87 days of open
comment period on the draft economic analysis. The Act requires that a
minimum of 60 days be allowed for comment on a critical habitat
proposal. Thus, we exceeded the statutory requirement.
Comment 3: Some commenters felt that there were too few public
hearings held, some questioned the geographic distribution of the
hearing sites, and some were concerned that the hearings were poorly
publicized or that too short a notice was given.
Our Response: The Act requires that at least one public hearing be
held on a proposed designation of critical habitat if requested within
45 days of publication of a proposed rule. As described previously, in
anticipation of the public's interest in the proposed designation we
announced in the proposal that we would hold 9 public hearings. We
added a tenth public hearing, that we announced in the Federal Register
and local newspapers (for a complete discussion on the public hearings
and our efforts at publicizing them please see the beginning of this
``Summary of Comments and Recommendations'' section). While we would
have preferred to conduct more public hearings, budgetary, workforce,
and time constraints prohibited us from doing so. Nonetheless, we far
exceeded the requirement that one public hearing be held if requested.
Further, given the large geographic distribution of wintering piping
plovers and the resulting large area proposed as critical habitat, we
chose our hearing locations to spread the sites as evenly as possible
throughout the eight affected States. Once requested, four additional
public meetings were held after the initial public meetings and
hearings.
We disagree that the public hearings were poorly publicized, as we
conducted extensive outreach prior to the hearing (see the discussion
in F.1). We acknowledge, however, that notification of the Wilmington,
North Carolina, and Savannah, Georgia, hearings was less than desired.
Regulations (50 CFR 424.16(c)(3)) require 15 days notification prior to
public hearings being held, but the Wilmington and Savannah hearings
were publicized only 11 and 13 days, respectively, before they were
held. While we regret this short notification, since only one hearing
is required to meet our statutory obligations under the Act, we did not
violate our regulatory requirements.
Finally, it is important to note that a public hearing is one part
of the public participation opportunities provided under the Act and
Administrative Procedure Act. Written comments receive equal
consideration as oral comments, and we far exceeded the public comment
period requirements in allowing ample time for submission of written
comments. In addition, we were ordered by the court to complete the
proposed and final designation in a 10-month period. Thus we could not
have extended the comment period any longer and met the court deadline
of April 30, 2001.
Comment 4: The proposed rule does not describe the type and level
of coordination that has occurred with State wildlife agencies; their
views should have been included in the proposal.
Our Response: We have long recognized the roles of States in
management of listed species and their habitats, and coordinate with
States to the extent practicable. The Act at (4)(b)(5)(A)(ii)) requires
that States be given notification of, and opportunity to comment on,
proposed listing actions. However, we generally coordinate with States
during the proposal development process, as we did here.
Our biologists coordinated with the appropriate State agencies from
all eight affected States in developing piping plover distribution
information along the coast by meeting with them personally and
soliciting their input prior to the proposed rule and/or during the
comment periods. We incorporated their input and expertise into the
proposed and final rules.
Comment 5: Why were persons with known experience in piping plovers
not contacted for information prior to publication of the proposed
rule? As a result of the Service's failure to seek local expertise,
important areas were left out of the designation.
Our Response: It is our judgement that information collected pre-
proposal was sufficient for a thorough and comprehensive designation to
support all three populations of piping plovers when recovered. Areas
outside the critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibitions, as determined on the
basis of the best available information at the time of the action. In
developing the proposed and final rules, we coordinated with biologists
in the appropriate State agencies from the eight affected States (see
response to F.4).
Issue G: Mapping and Primary Constituent Elements
A number of commenters expressed concerns about map quality, the
broad extent of the designation, the definition of the primary
constituent elements, and other issues surrounding spatial aspects of
the designation.
Comment 1: The critical habitat units are non-specific in that they
include lands that do not contain the primary constituent elements.
This will result in unnecessary section 7 consultations and add an
unnecessary administrative burden to government agencies and private
entities included within the mapped boundaries.
Our Response: While it would be ideal if we could map only areas
that currently contain the primary constituent elements, there are
three primary reasons why we were unable to do so. First, we are
unaware of the existence of sufficient data with which to conduct the
precise mapping requested by the commenters. Second, even if the data
were available, the large extent of the species' range would render
such fine-scale mapping impractical, especially given workforce and
time limitations. Most importantly, the coastal areas inhabited by the
piping plover are so highly dynamic that any map of currently suitable
habitat would rapidly become obsolete.
For the reasons cited above, we mapped the critical habitat
boundaries on a relatively coarse scale, and identified the areas
within those boundaries that are essential to the species by describing
those habitat features (primary constituent elements) essential to the
plover's life-history requirements. In this way, critical habitat
designation will accommodate the dynamic nature of the habitat,
changing through time as the primary constituent elements form in one
area while disappearing in another. We
[[Page 36054]]
believe that this approach is the only scientifically credible way to
ensure that the critical habitat designation is compatible with the
species' habitats' naturally ephemeral character. As suggested by one
commenter, to ensure that interested persons understand that critical
habitat is found only in areas where the primary constituent elements
are present, our final critical habitat maps are footnoted to that
effect. This is consistent with our regulations at 50 CFR 17.94(c),
that indicate the management of critical habitat focuses only on the
biological or physical constituent elements within the defined area of
critical habitat.
Finally, as stated in both the proposed and final rules, section 7
consultation on piping plover critical habitat will only be required
when a proposed Federal action may affect the primary constituent
elements. Thus, no consultation will be necessary if those habitat
features are not present, since consultation is triggered by a
determination on the part of the Federal action agency that their
proposed activity may affect piping plovers or their critical habitat.
Our Ecological Services Field Offices (see contact information under
``Effects of Critical Habitat Designation'' section) will gladly work
with Federal agencies and landowners to help determine whether piping
plover habitat occurs on their property.
Comment 2: Including an area as critical habitat because it may
support the primary constituent elements in the future violates the
criteria specified in regulations at 50 CFR 424.12(b). This approach
also circumvents the rulemaking requirements under the Act and the
Administrative Procedure Act.
Our Response: The referenced regulation speaks to the definition of
the primary constituent elements and lists the types of life-history
requirements that may be included in critical habitat. One of those
life-history requirements is ``(1) Space for individual and population
growth, and for normal behavior.'' We believe the designation reflects
this life-history requirement, in that critical habitat units were
developed to take into account the shifting nature of primary
constituent elements in coastal systems. That is compatible with piping
plovers' normal behavior of shifting use areas based on tide, weather,
food supply, etc. (Drake 1999a). Thus, we believe the designation
accurately reflects the intent of 50 CFR 424.12(b).
We also dispute the contention that this approach violates the
rulemaking requirements of the Act or Administrative Procedure Act. The
proposed rule and this final rule notify the affected public of the
boundaries of the critical habitat designation and of the fact that the
essential physical and biological features important to the piping
plover are dependent upon a dynamic coastal system that changes through
time. As explained above and throughout the proposed and final rules,
we can think of no other approach consistent with the dynamic nature of
the species' habitat.
Comment 3: Regulations at 50 CFR 17.94(c) state that the Service
must focus on the biological or physical elements within the critical
habitat area that are essential to the conservation of the species and
that are known to require special management considerations or
protection. Designation of such broad geographical areas expands the
``best available information'' requirement to render moot the fact that
the data must be ``available'' and the presence of constituent elements
``known''.
Our Response: Regulations at 50 CFR 17.94(c) require that those
constituent elements ``known to require special management
considerations or protection'' be listed with the description of
critical habitat. As stated in our response to G.2, critical habitat
units were developed to take into account the shifting nature of
primary constituent elements. We believe we have used the best
information available and made a biologically sound designation based
on the ephemeral nature of piping plover habitat.
Comment 4: Additional explanation of what constitutes the primary
constituent elements would aid the general public in recognizing the
species' critical habitat.
Our Response: We believe the primary constituent elements were
well-described in the proposed rule. Further, we received information
from state and county biologists who have documented the use of
salterns (also called salinas, salt flats, salt barrens, and salt pans)
by piping plovers in southwest Florida. They are bare sand flats in the
center of mangrove ecosystems that are found above mean high water and
are only irregularly flushed with sea water (Myers and Ewel 1990). We
have added the term ``salterns'' to the description of primary
constituent elements.
Comment 5: Critical habitat units should be mapped in sufficient
detail to exclude developed areas. Merely excluding these areas
verbally is inadequate.
Our Response: In the final rule we excluded a number of larger
developed areas from the mapped units. We did this to the extent
practicable given the available information and time to complete the
mapping effort. We could not exclude every structure, road, or other
feature from the critical habitat boundaries. However, these areas are
not included by definition.
Comment 6: The designation should be revised to exclude developed
and other areas that do not currently contain the primary constituent
elements. By including non-habitat areas within the designation, the
Service will not be able to distinguish which areas are habitat, and
merit protection, and those areas that do not support plovers. This may
result in adverse activities proceeding because the Service will not be
able to distinguish between those areas adversely affected before the
designation from those occurring after the designation.
Our Response: We believe we can assess whether an action area is
habitat for piping plovers, much as we have done over the 15 years that
the species has been listed. We will use aerial photographs and local
records to determine the extent of development at the time of this
critical habitat designation. When an action agency is contemplating an
action, it is up to that agency to determine whether or not that action
may affect a listed species or its critical habitat. If the agency
determines its action may affect a listed species' habitat, it then
initiates section 7 consultation. We then evaluate the effects of the
action on the species or its critical habitat.
Comment 7: The Service should clarify that not all human-made
structures are excluded from critical habitat. Some areas, such as
renourished beaches, may benefit plovers if done correctly.
Our Response: We agree that not all human-made structures are
excluded from critical habitat. Only those areas (whether human-made or
natural) containing the primary constituent elements are considered
critical habitat. We agree that beach renourishment is an example of
human-made habitat that may benefit piping plovers. Habitat restoration
and creation projects including beach nourishment, barrier island
restoration, and islands created using dredged material may benefit
plovers and such sites have been included in the critical habitat
designation.
Comment 8: Areas should not be excluded from critical habitat
merely because they are ``developed sites.'' Just because an area is
already degraded does not preclude its designation if it is essential
to the species' recovery.
Our Response: The proposed designation constitutes our assessment
[[Page 36055]]
of the wintering habitat needed to support a recovered piping plover
population. In arriving at this designation we included areas that have
documented consistent use. We mapped around developments adjacent to or
directly on the beaches and only excluded developments that do not
contain any primary constituent elements. For example, Grand Isle is a
barrier island in Louisiana that is highly developed. Christmas bird
count data indicate consistent use by plovers. We only mapped from the
hurricane protection levee gulfward. The developed areas are currently
from the levee landward.
Comment 9: One commenter suggested we add such terms as ``bridges,
piers, and aids to navigation'' to the list of ``developed sites.''
Our Response: We elected not to list every conceivable type of
``developed site'' because such a list would be extensive and we would
risk leaving out some type of development. Thus we believe that the
appropriate course is to remain fairly general on this issue and allow
the Federal action agencies the flexibility to determine which areas do
or do not contain the primary constituent elements.
Comment 10: In the text of the rule, the Service excludes areas
from critical habitat that do not contain the primary constituent
elements, but fails to do so in the language amending 50 CFR 17.95.
Our Response: This assertion is incorrect, as the discussion on
non-inclusion of non-suitable areas is given at the end of the
regulatory section of the proposed rule (see 65 FR 41812), after the
legal descriptions for the Texas units. However, in order to make this
language more obvious and so that it clearly pertains to the entire
designation, we have moved this discussion to the beginning of the
regulatory portion of this final rule.
Comment 11: Verbally excluding areas from critical habitat is
counter to regulations at 50 CFR 17.94(a), that require that critical
habitat areas be defined by surveyable landmarks found on standard
topographic maps of the area.
Our Response: This commenter is likely referring to 50 CFR
17.94(b), which states that critical habitats are described by
reference to surveyable landmarks found on standard topographic maps of
the area. As stated above and elsewhere in this final rule, piping
plover habitat is composed of highly dynamic areas that can change
quite rapidly, and are thus by their nature ephemeral. Thus, we defined
the critical habitat boundaries textually using visual references found
on Digital Orthophoto Quarter Quads (DOQQs) (i.e., digital aerial
photography) and reference locations found on published maps. For the
piping plover designation, we believe that textual unit descriptions,
as described in the ``Methods'' section of this rule, will provide for
a more precise means of defining the areas that contain the physical
and biological features essential to the wintering piping plover and
will allow the public to better determine the critical habitat
boundaries. The textual unit descriptions allow us to capture the
dynamic nature of the coastal habitat by describing each unit as
including the area extending out from the landward boundaries to the
MLLW. In this way we can include in the designation intertidal areas
that are essential foraging areas for piping plovers. Our textual unit
descriptions may also describe important areas within the unit that are
utilized by the piping plover, such as wind-tidal flats, and areas that
contain the primary constituent elements.
Comment 12: One commenter suggested that the critical habitat
boundaries not be fixed, but rather be flexible so as to take into
account the ever-changing nature of the coastal areas and account for
shifts in the locations of important piping plover habitat features.
Our Response: As stated and described in the ``Methods'' section of
this final rule, we believe the needed flexibility is provided in the
textual unit by unit descriptions that account for the dynamic nature
of plover habitat. These unit descriptions are being published in the
regulatory section of this rule as the definitive source for
determining the critical habitat boundaries. We recognize that
important plover habitat may form over time in areas outside the
designated boundaries and if it is determined to be warranted, the
critical habitat designation could be revised through the rulemaking
process in the future.
Comment 13: Some commenters expressed concern that the Universal
Transverse Mercator System (UTM) coordinates published in the proposed
rule resulted in boundaries that were in error. The final rule should
be written to ensure that the UTM coordinates are consistent with the
written descriptions of the critical habitat units.
Our Response: The coordinates we reported were generated by the
Geographic Information System (GIS) software that was used to create
the units. A GIS is a mapping software that links information about
where things are with information about the area. Unlike a paper map, a
GIS map can combine many layers of information and tools to analyze
that information. The coordinates printed in the Federal Register were
created from the text files that were generated from the GIS. During
this process potential errors may have occurred due to the interpretive
process of the coordinates. One known error was the reporting of
Florida coordinates. We reported Florida coordinates to be UTM
coordinates, when in actuality they were the map projection coordinates
used within the State of Florida (Albers projection).
Another error was identified after the unit coordinates were
published. This error occurred in the North Carolina data. The datum of
the source imagery DOQQs (i.e., digital aerial photography) we obtained
was reported inaccurately. The imagery was reported as North American
Datum 1927 (NAD27), when it was actually North American Datum 1983
(NAD83). By utilizing the on-the-fly projection capability of the GIS
software, the data was projected to NAD27 and all line work was
digitized. This introduced an error in the data that shifted the
features up to 500 meters. We have resolved this problem in this final
rule. As noted within this rule, our textual unit descriptions are the
definitive source for determining the legal boundaries of the critical
habitat designation. Thus, we will not be publishing UTMs or Latitude
Longitude coordinates as part of this final rule.
Comment 14: Some commenters pointed out that there were various
errors in the legal descriptions. For example, the legal description
for unit FL-27, when plotted, did not match the Federal Register maps.
As such, landowners within erroneously described units were not
properly notified of the designation, and critical habitat should
therefore be re-proposed.
Our Response: See response to G.13. Due to an inadvertent error,
the detailed maps we made were not published in the proposed rule; only
the index maps were published. However, verbal unit descriptions were
published, as well as who to contact for more information. Detailed
maps were available to the public on the web at http://
southeast.fws.gov. Legal notices were published in major newspapers
announcing the public hearings and included contact information and the
website address. In addition, site-specific maps were available at the
public hearings. Thus, we believe that the public had ample opportunity
to determine whether an area was included in the designation, based on
the verbal unit descriptions, and to comment on the proposal.
[[Page 36056]]
Comment 15: The maps in the proposed rule were of insufficient
detail for landowners to determine whether their property is within the
critical habitat boundaries. The final maps should correct this.
Our Response: We acknowledge that there was a problem with the maps
as published in the proposed rule. Through an inadvertent error, the
more detailed maps provided for publication were not included in the
proposed rule. However, due to Federal Register constraints of page
size, even more detailed maps may not provide enough resolution to
allow some individual landowners the ability to determine whether their
property is in or out of a critical habitat unit. Thus, the maps
published in the Federal Register are intended for general guidance
only, while the textual unit descriptions should be used for definitive
determinations.
Comment 16: It is difficult to determine from the maps published
with the proposed rule the exact boundaries of the critical habitat
units. In some areas it appears that highways were used as boundaries,
and it is difficult to tell whether highway rights-of-way are within
the critical habitat units. The final rule should explicitly exclude
highway rights-of-way.
Our Response: We did not explicitly exclude highway rights-of-way
in this final designation, because some rights-of-way containing the
primary constituent elements may be essential to piping plover
conservation. Unit map boundary lines as printed in the Federal
Register cannot be used to determine whether a project would be
affecting the species or adversely modifying its critical habitat. The
textual unit descriptions should be used for definitive determinations
as to whether an area is within the designated critical habitat
boundary. Federal agencies will need to determine whether actions they
fund, authorize, or carry out may affect wintering piping plovers or
their critical habitat.
Comment 17: Only the 86 percent of the proposal that is public land
should be designated.
Our Response: In selecting areas to propose as critical habitat, we
did not consider land ownership per se, but rather selected areas based
on whether or not they were essential as indicated by recorded
consistent plover use or areas where the habitat conditions indicated
probable use by plovers. Areas for which habitat conditions indicated
probable plover use in Louisiana, were confirmed for occupancy this
winter.
The Act does not allow exclusion of areas based on land ownership
unless we determine under section 4(b)(2) of the Act that the benefits
of excluding an area from the designation outweigh the benefits of
including the area as critical habitat. See the Exclusions Under
4(b)(2) of the Act'' section of this rule for a further discussion of
this issue.
Comment 18: The proposed rule incorrectly characterized Unit TX-34
as comprising almost entirely State-owned lands. In fact, the gulf
beach is privately owned to the mean high-tide line, and the proposed
area includes upland areas that are privately owned. Further, the area
on the southernmost end of Galveston Island includes 300 acres of
privately owned land, that were inaccurately portrayed on the map. The
map of Unit TX-34 is woefully outdated.
Our Response: As described in the proposed rule, Unit TX-34
includes gulf beach and sand flats that belong to the State of Texas,
and of which 57% is in the floodtide delta. The area is described as
only including the delta to the northwest of the causeway, and the
beach to the northeast of the causeway. Both sides of the San Luis Pass
experience extremely high levels of erosion averaging 10.2 m (33.8 ft)
per year on the Galveston Island side, and 18 m (60.1 ft) per year on
the Follet's Island side (Morton 1989). As a result, maps of this
dynamic area are out of date before they are published. We have
described the area in narrative form, and mapped the area using aerial
photography dated 1995.
Comment 19: Latitude and longitude information should be given to
facilitate inclusion in the GIS of Federal, State, and local agencies.
Our Response: Because the source data DOQQs imagery used to map
critical habitat were projected, we chose to report the legal
descriptions in the proposed rule in projected values and not latitude
and longitude. We believed that this methodology will facilitate
overlaying the data in any GIS with the source imagery. However, in
this final rule the definitive source for determining the precise legal
boundaries of the designation are the textual unit descriptions.
Issue H: Best Information/Science
A number of commenters questioned the accuracy of the information
on which the proposal was based and whether or not we used the best
scientific and commercial information available.
Comment 1: The Service should follow the scientific decision-making
process used for all Federal water and related land resource studies.
This requires six significant steps-(1) identify and inventory problems
and opportunities; (2) inventory and forecast conditions; (3) formulate
alternative plans; (4) evaluate alternative plans; (5) compare
alternative plans; (6) select a plan. The proposal does not explain how
the Service went through this process.
Our Response: Please see our ``Methods'' discussions in the
proposed and final rules, that explain the process we went through in
arriving at this final designation. Although the process does not
precisely mirror the one suggested by the commenter, we believe that
our approach was a logical and rational approach to meeting the
mandates of the Act. The Act requires that our decisions be based on
the best scientific and commercial information available, and does not
require ``reasonable scientific certainty.''
Comment 2: The proposal provides very limited information on the
criteria and data used to determine the areas proposed as critical
habitat. For example, there was no discussion of the data upon which
the Service relied in concluding that the proposed areas contain the
primary constituent elements, particularly in areas where plovers have
not been recorded. More supporting data should be provided.
Our Response: We refer you to the ``Methods'' sections of the
proposed and final rules. In those discussions, we provide information
on the data considered throughout this process. While those discussions
only summarize the data used, we welcome interested individuals to
contact us if they wish to review the detailed supporting information
in our files. Additional survey data this winter confirmed that all
units are occupied.
The only areas included in the proposed rule that did not have
survey data showing that they are used by plovers were the Mississippi
River and the Wax Lake Outlet Deltas. We included those areas because
of the high probability of use by plovers due to the broad expanse of
mudflats known to exist in the river deltas. Those areas are remote and
difficult to access and thus had not been surveyed. We have surveyed
these areas since the proposed rule (Mississippi River Delta in
December 2000, and the Wax Lake Outlet Delta during the February
International Piping Plover Survey). Forty plovers were found on a few
small dredged material islands in the Mississippi River Delta, none
were found in the Wax Lake Outlet Delta. Those areas of the Mississippi
Delta where no plovers were observed were not included and the entire
Wax Lake Outlet Delta was likewise not included in the final rule.
Additionally, during the International Census in February
[[Page 36057]]
2001, 40 piping plovers were observed on the same dredged material
islands in the Mississippi River Delta. Although we do not have data to
document use of these areas from previous wintering seasons, based on
studies indicating that plovers exhibit a certain amount of site
fidelity (see our response to Comment A.11 above), and the large
numbers of plovers observed at these sites, we have included these
areas in the designation because of the virtual certainty that they are
consistently used. As we have stated, this designation is based on the
best scientific and commercial information available, as required by
the Act. We welcome any additional data on the piping plover and its
habitat.
Comment 3: Critical habitat should be designated only in areas
where the species is present. Some areas have been proposed where there
are no data to show that the piping plover occurs there.
Our Response: In the proposed rule, we acknowledged that ``In some
areas, adequate census data are not available to provide reliable
presence or absence information for the plover. These areas are in
remote locations where censuses are logistically difficult. However,
the physical and biological features essential to piping plovers are
known to be at least sporadically present in these dynamic areas, and
our belief that these areas support piping plovers when essential
habitat features are present is biologically sound'' (65 FR 41785).
The only areas included in the proposed rule that did not have data
on piping plover presence were the Mississippi River and the Wax Lake
Outlet Deltas. These areas were surveyed twice since the proposed rule.
For the final rule, we have included those areas that contain piping
plover habitat and for which we had documented use by piping plovers.
See response to H.2.
Comment 4: The Service should provide the population data upon
which this proposal is based. The Service should also census each
proposed area and designate only those areas with high plover
concentrations as critical habitat.
Our Response: As stated in the proposed rule, the data upon which
the designation is based are available by contacting our Corpus
Christi, Texas, Ecological Services Field Office (see ADDRESSES
section). Inclusion of all the survey data in the proposed or final
rules would be impracticable.
We agree that areas of high plover concentrations indicate that the
areas are important to wintering piping plovers. But areas with low,
yet consistent numbers are also important. This is true particularly
for the endangered Great Lakes population. This population has
approximately 32 pairs remaining, which winter in locations throughout
the southeast, thereby making each critical habitat unit important to
the survival and recovery of that endangered population. Plover use
patterns may shift through time, both within and among seasons and
years.
Comment 5: The designation should be delayed until plover activity
is studied in detail.
Our Response: In this case, the court determined that we had failed
to abide by the requirements of the Act for designating critical
habitat when prudent and determinable and ordered us to complete the
critical habitat determination. We did so using the best scientific and
commercial information available, as required by the Act (4(b)(2)).
While it is always preferable to have more information on virtually
every listed species, the Act does not allow for indefinite delays
until such information is acquired. Nonetheless, we will continue to
use the best information available as we continue the species' recovery
process, and may revise the critical habitat designation in the future
if appropriate and necessary.
Comment 6: Has the Service considered less drastic alternatives
such as designating only preserved areas or less developed areas, and
regulating only those activities that are troublesome to the plover?
Our Response: As described in both the proposed and final rules,
the intent of the critical habitat designation is to include all areas
believed essential for the species' conservation, which includes its
recovery. It is our biological conclusion that merely designating
``preserved'' areas or areas not subject to habitat threats would not
be sufficient to provide for the species' eventual recovery. We did,
however, avoid a number of developed areas within the range of the
plover, designating only those areas we believe necessary for the
species' conservation.
As to the regulatory effects of the designation, we will only
formally review actions under section 7 consultation when Federal
actions are likely to adversely affect the species or its habitat. In
these cases we recommend that consultation be conducted regardless of
whether the habitat is officially designated as critical. As indicated
in the Final Economic Analysis, we believe that little if any
incremental regulatory or economic effects above the listing will
result from this designation.
Comment 7: Based on population numbers and the proposed acreage,
the Service has allotted 600 acres per bird. Why does a 6-inch tall, 2-
ounce bird need so much habitat?
Our Response: The actual area of critical habitat, as defined by
the primary constituent elements, is considerably less than the coarse
acreage included within the proposed boundaries. Critical habitat is
designated to identify areas essential to the conservation of the
species, including identifying sufficient habitat to achieve recovery.
Further, wintering piping plovers do not simply ``occupy'' a certain
static location, but rather move throughout an area as its needs (e.g.,
foraging, roosting, refuge from high winds or severe storms) change
from day to day and over time as a result of the tides, weather, and
other factors.
Issue I: Definition of Critical Habitat
Numerous commenters expressed concerns that the areas designated
were either not essential to the conservation of the species, not in
need of special management considerations or protection, or otherwise
inconsistent with the statutory requirements for selecting areas to
designate as critical habitat.
Comment 1: Why is critical habitat being designated in otherwise
protected areas, such as State lands, national seashores, refuges, or
parks? Managers should have the opportunity to implement management
actions that would avoid the additional regulatory burden of critical
habitat designation.
Our Response: As implied by this commenter, areas not in need of
special management do not meet the definition of critical habitat and
are therefore not included in a critical habitat designation. We use
the following three criteria to determine if a management plan provides
adequate special management or protection: (1) A current plan/agreement
must be complete and provide sufficient conservation benefit specific
to the species; (2) the plan must provide assurances that the
conservation management strategies will be implemented; and (3) the
plan must provide assurances that the conservation management
strategies will be effective, i.e., provide for periodic monitoring and
revisions as necessary. If all of these criteria are met, then the
lands covered under the plan would no longer meet the definition of
critical habitat.
Given the amount of time allowed to prepare the proposed
designation, the wide distribution of wintering piping plovers, and the
myriad of landowners and land managers within the species' range, we
were unable to do a
[[Page 36058]]
comprehensive evaluation of all management plans that could potentially
meet the criteria listed above. Although we did identify areas that
have the potential for having a management plan, primarily Federal
lands, and evaluated those plans if one was completed for the area. In
the proposed rule we also solicited information on reasons why any area
should or should not be considered critical habitat (65 FR 41793). The
ensuing public comments included several instances where commenters
believed certain areas are currently managed compatibly with the
species and should therefore be excluded from the final designation.
Those suggestions are addressed under the ``Site-specific Comments''
portion of this ``Summary of Comments and Recommendations'' section. We
received no information that indicated that any of the public land
management plans met our three criteria; therefore, no lands were
excluded based on ``not [being]
in need of special management
protection.'' We did, however, exclude the Padre Island National
Seashore based on section 4(b)(2) of the Act. Please refer to the
``Exclusions Under 4(b)(2) of the Act'' section of this rule.
We also note that we encourage management plans compatible with the
conservation of threatened and endangered species, and that critical
habitat designation neither discourages such voluntary actions nor adds
significant regulatory burden. Management that does not adversely
affect listed species or their critical habitat is not required to
undergo formal section 7 consultation.
Comment 2: The piping plover already receives substantial
protections, such as under sections 7 and 9 of the Act. Why is
additional protection necessary? The Service has repeatedly claimed
that they expect no adverse economic impacts beyond those attributable
to listing. If this is so, why not abandon this designation? Why
subject landowners to uncertainty and additional bureaucracy?
Our Response: We agree that protections afforded listed species
under sections 7 and 9 are substantial, and that critical habitat
designation usually adds only marginal protections above those already
afforded listed species. Under section 7, Federal agencies are required
to utilize their authorities to further the conservation of species and
the ecosystems upon which they depend. Federal agencies are prohibited
from implementing actions likely to jeopardize the continued existence
of a species or to destroy or adversely modify a listed species'
designated critical habitat. Regulations implementing the requirements
of section 7 (50 CFR 402.02) define ``jeopardize the continued
existence'' (of a species) and ``destruction or adverse modification''
(of critical habitat) so similarly that the two prohibitions are nearly
identical, thus resulting in little additional protection through
critical habitat designation.
Section 9 of the Act also provides substantial protection to listed
species by prohibiting any person (as opposed to section 7 that
involves only Federal agencies) from such activities as taking listed
species without proper permits, as well as controlling transportation,
selling, and importing or exporting listed species. Critical habitat is
not protected under section 9, so no effect on strictly non-Federal
activities are added through critical habitat designation.
Despite the little additional regulatory benefit critical habitat
may provide listed species, section 4(a)(3) of the Act requires that
critical habitat be designated for species listed as threatened or
endangered unless such designation would not be prudent. Further, we
believe designation of critical habitat for wintering piping plovers
may be of some benefit. A critical habitat designation benefits species
conservation by identifying important areas and by describing the
features within those areas that are essential to conservation of the
species, and alerting public and private entities to the areas'
importance. Although the designation of critical habitat does not, in
and of itself, restrict human activities within an area or mandate any
specific management or recovery actions, it does help focus Federal,
State, and private conservation and management efforts in such areas.
Designating critical habitat may also provide some educational or
informational benefits.
Comment 3: When the Service listed the piping plover in the 1980's
it did not designate critical habitat because it was believed
unnecessary. Some commenters questioned why we now believe critical
habitat designation is prudent.
Our Response: Section 4(a)(3) of the Act states that when a species
is added to the endangered species list, we must designate critical
habitat to the maximum extent prudent and determinable. The 1985 final
listing rule for the piping plover did not include a critical habitat
designation, not because it was unnecessary, but because it was not
determinable and so it was deferred for one year. We did not make a
prudency determination or designate critical habitat by the end of that
year. Because of this omission, in December 1996, Defenders of Wildlife
(Defenders) filed a lawsuit against the Department of the Interior and
the Service for failing to designate critical habitat for the piping
plover. As a result of the lawsuit, the court ordered us to publish a
proposed critical habitat designation for the piping plover in the
breeding area in the Great Lakes by June 30, 2000, with a final rule by
April 30, 2001. We were also ordered to designate critical habitat for
the Great Plains population by May 31, 2001, with a final rule by March
15, 2002. We have no evidence of vandalism or other threats that may
occur based on disclosing the location of this species. Thus, we
determined that the appropriate course of action would be to propose
critical habitat for all US wintering piping plovers on the same
schedule required, under court order, for the Great Lakes breeding
population.
Comment 4: The Service has disregarded the prohibitions in section
3(5)(C) of the Act against designating the entire geographical area
that could be occupied by the piping plover.
Our Response: We did not designate the entire geographical area
that can be occupied by wintering piping plovers. In fact, the censuses
upon which we based our initial identification of potential critical
habitat areas have detected less than half the piping plover numbers
known from their breeding areas. One may infer that at least some
piping plovers winter in areas other than those designated as critical
habitat. Areas that were not included in critical habitat include many
sites where plovers have been documented at least once, but records do
not indicate a consistent use. For example, in Florida we did not
include the South tip of Amelia Island, Nassau County; high marsh and
salt pans of Charlotte Harbor State Buffer Preserve, Charlotte County;
and Passage Key National Wildlife Refuge, Manatee County. Additional
sites are listed in Comments B.2 and B.3. A piping plover may be
observed at any given time at any location along the Gulf and Atlantic
coasts. We included in this designation only the areas essential for
the conservation and recovery of the species as supported by consistent
use by piping plovers.
Comment 5: Critical habitat for wintering piping plovers is not
determinable because their biological needs are not sufficiently well
known. Recovery plans for the species recommend significant research on
wintering plovers; without such information it cannot be determined
with reasonable scientific certainty which areas are essential to the
species.
[[Page 36059]]
Our Response: We are required to designate critical habitat for
species at the time they are listed under the Act to the extent prudent
and determinable under section 4(a)(3). Regulations implementing the
listing provisions of the Act state that critical habitat is not
determinable when the biological needs of the species are not
sufficiently well known to permit identification of an area as critical
habitat (50 CFR 424.12(a)(2)(ii)). In cases where critical habitat is
not determinable the regulations allow only a one-year extension. At
the end of the extension critical habitat must be designated based on
such data available at that time (50 CFR 424.17(b)(2)).
It has been over 15 years since the piping plover was listed under
the Act, and a great deal of information has become available since the
listing occurred. While we agree that more information would be
preferable, we do not believe further delays in making this designation
would be legally defensible under the statute and its regulations. In
addition, the Act requires that our decisions be based on the best
scientific and commercial information available, and does not require
``reasonable scientific certainty.''
Comment 6: A conclusion that areas identified during population
surveys are essential to the plover population is speculative. Because
a plover was sighted in an area does not make the area essential to the
species' conservation.
Our Response: We agree that the mere sighting of one or more
individuals of a species does not necessarily mean the area of the
sighting is essential to the species' conservation. In fact, for most
species it is difficult to know with certainty that a particular area
is essential to its conservation. However, the Act clearly requires
that we make such judgements based on the best scientific and
commercial information available. The census data tell us that plovers
occur in an area, from which we can infer that the animal derives some
useful life-history benefit. We believe these occurrence data
constitute the best available information upon which to base this
designation. We also note that the commenter did not suggest an
alternative approach to arriving at a biologically sound critical
habitat designation. Other research has shown what type of habitat
features are necessary to provide for the life-cycle needs of the
species. Together, this information suggests to us which areas are
essential for the conservation of the species.
Comment 7: Critical habitat should include only the minimum amount
of habitat needed to avoid short-term jeopardy or habitat in need of
immediate intervention.
Our Response: We disagree. The Act requires that areas designated
as critical habitat be essential to the conservation of the species.
The term ``conservation'' is defined as ``* * * the use of all methods
and procedures necessary to bring any [listed]
species to the point at
which measures provided pursuant to this Act are no longer necessary *
* *'' (i.e., the species is recovered and eligible for removal from the
list of threatened and endangered species). Since the stated purpose of
the Act includes ``* * * to provide a program for the conservation of
such endangered species and threatened species * * *'', it is clear
that Congress intended the provisions of the Act to be used for such
conservation purposes rather than as stop-gap measures to prevent
extinction.
Comment 8: The proposal contains 686 miles of privately owned
shoreline. The Service justifies this by stating that shoreline
development poses the biggest threat to plover habitat, especially
along the Texas Coast. However, the regulatory basis for designation
should be the evaluation of the habitat rather than the potential for
development.
Our Response: As discussed above, the critical habitat designation
is based on an evaluation of habitat and the survey data on piping
plovers. This critical habitat designation for the wintering population
of the piping plover includes areas that we know currently support the
species. Areas described in the approved recovery plans (USFWS 1988,
1996) as essential to the conservation of the wintering population of
the piping plover are being designated as critical habitat, if recent
data support consistent use and the habitat remains suitable.
Comment 9: The Service designated areas that are inhabited by
people and where plovers and people co-exist. Therefore critical
habitat is unnecessary.
Our Response: We agree that piping plovers and people can co-exist
in wintering areas. However, as explained in this final rule, critical
habitat is not considered to be an optional process, and the fact that
people use areas used by plovers does not provide sufficient
justification for not designating critical habitat. We believe that the
effect on plovers of normal human presence in their wintering habitat
does not have serious consequences to the plover at the population
level. See our response to Issue A.15 above.
Issue J: Effects of Designation
These comments involve issues related to the effects of designation
on land management and habitat-modifying activities within the
designated areas.
Comment 1: How will the proposed designation impact the future of
Packery Channel? Will it have a minimal effect as discussed, or will it
cause the Packery Channel opening to be shut down completely?
Our Response: We completed a Biological Opinion (BO) on August 1,
1994, for U.S. Army Corps of Engineers Permit Number 18344(01) Fish
Trackers/Reopen Packery Channel Association. The BO included a
``finding of not likely to jeopardize the continued existence of the
threatened and endangered populations of the piping plover'' based on
the project design included in Permit 18344(01). Refer to Comment E.3
for the circumstances requiring Federal actions that have already
undergone section 7 consultation to reinitiate that consultation.
Comment 2: Is it necessary to obtain a permit and contract an
environmental consultant at the private landowner's expense, because
the property that he/she wishes to build a house on is on the
beachfront, upland area, or sand dune?
Our Response: Prior to procuring a consultant, we suggest that you
contact the Service representative in your particular State (see the
contact list in the ``Effects of Critical Habitat Designation'' section
of this rule for the name and phone number of the person to contact).
As discussed in comment E.5, all landowners, public and private, are
responsible for making sure their actions do not result in the
unauthorized taking of a listed species, regardless of whether or not
the activity occurs within designated critical habitat. Take is defined
as ``harass, harm, pursue, hunt, shoot, wound, capture, collect, or
attempt to engage in any such conduct.'' Take is further defined by
regulation to include ``significant habitat modification or degradation
that actually kills or injures wildlife.'' This definition was upheld
by the U.S. Supreme Court in Sweet Home Chapter of Communities for a
Great Oregon et al. v. Babbitt, 515 U.S. 687 (1995).
All Federal agencies are responsible to ensure that the actions
they fund, permit, or carry out do not result in jeopardizing the
continued existence of a listed species, regardless of critical habitat
designation. ``Jeopardize the continued existence of'' means to engage
in an action that would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
[[Page 36060]]
distribution of that species (50 CFR 402.02). Because we designated
only areas within the geographic range occupied by the piping plover,
any activity that would result in an adverse modification of the
plover's critical habitat would virtually always also jeopardize the
continued existence of the species. Federal agencies must consult
pursuant to section 7 of the Act on all activities that will adversely
affect the plover both within and outside designated critical habitat.
Issue K: Economic Comments
Numerous persons commented on the expected economic effects of the
designation and on the draft economic analysis.
Comment 1: The designation of critical habitat on Padre Island
National Seashore would restrict the ability to explore and develop
mineral operations and cause a sizable economic impact if indeed these
restrictions are upheld.
Our Response: As discussed in the ``Exclusions Under 4(b)(2) of the
Act'' section of this rule, we considered the effects on exploration
and development of mineral operations that would result from including
Padre Island National Seashore in the final designation. Based on our
analysis under section 4(b)(2), we concluded that the benefits of
excluding Padre Island National Seashore were greater than the benefits
of including, and therefore, we have excluded that area from the final
designation.
Comment 2: Some commenters stated that the DEA was inadequate
because it is based on the faulty assumption that the designation will
not result in any greater burden than under the ``baseline'' of the
listing of the plover. Relatedly, some commenters believed that we
should have quantified the cost of designating the plover as an
endangered species in our baseline calculations.
Our Response: The economic analysis does determine that there is a
slight additional burden due to the designation of critical habitat for
wintering piping plover and the economists attempted to quantify these
costs in their analysis. See the ``Economics Analysis'' section of this
rule.
While listing effects can be significant in some cases due to the
prohibition on ``taking'' a listed species, Congress specifically
directed the Service to base its listing decisions strictly on
biological considerations. Economic effects caused by listing the
wintering population of the piping plover as a federally protected
threatened species, and by other statutes, are the baseline against
which we evaluated, under section 4(b)(2) of the Act, the effects of
the critical habitat designation.
Comment 3: Some commenters stated that they believed that the
economic analysis should be completed before the rule is formally
proposed.
Our Response: Given the nature of this rulemaking, we were unable
to complete the economic analysis at the time we formally proposed this
rule to the public. Both the proposed rule date and final rule date
were established as a result of court rulings, that allowed less time
than generally preferred by us to conduct a rulemaking. As a result,
although we began the economic analysis before the rule was formally
proposed, we were not able to complete it until later. Once we
completed the economic analysis, we published in the Federal Register a
Notice of Availability (65 FR 52691, August 30, 2000) and gave the
public 90 days to comment on the analysis, along with other aspects of
the rule. We have considered these comments and have produced a revised
economic analysis, that we have submitted to OMB for review as part of
this rulemaking package.
Comment 4: Some commenters believed that our economic analysis
focused too narrowly on either current or near-term planned activities
at the expense of longer-term planned activities.
Our Response: The revised analysis used a ten-year time horizon to
identify likely current and planned activities that may be affected by
critical habitat designation. We limited our analysis to a ten-year
horizon because the estimation of future impacts becomes extremely
speculative beyond that point. As stated in the analysis, our approach
for estimating the potential effects of critical habitat designation
followed four basic steps. First, the analysis identified land uses and
activities likely to be affected by critical habitat designation.
Second, the analysis looked at Federal nexuses that may allow certain
land uses and activities conducted on critical habitat to be consulted
on under section 7 of the Act. Third, out of the activities likely to
occur on critical habitat having a Federal nexus, the analysis
considered the likelihood that the Service would consult with the
Federal agency under section 7 of the Act because such activities have
the potential to adversely affect the plover or its critical habitat.
Under this consideration, the analysis considered the likelihood that
critical habitat designation would impose additional effects beyond
listing, including effects on section 7 consultations and potential
mitigation. Finally, the analysis also considered the potential for any
further indirect effects resulting from the designation. While we
believe the analysis did a credible job in identifying both current and
planned future land use activities within proposed critical habitat, we
also believe that to speculate about long-term, future activities on
particular units, that are different than those currently being
conducted or envisioned, adds little information of value to the
decision-making process.
Comment 5: We received many comments concerning the impact that
dredging and the disposal of dredged materials, along with beach
nourishment, would have on critical habitat.
Our Response: Our revised economic analysis addresses this issue in
greater specificity. In summary, we do not believe that beach
nourishment activities, along with dredging and disposal activities,
are likely to be impacted by this critical habitat designation. In the
vast majority of cases we support beach nourishment activities as they
benefit the wintering plover by providing them increased foraging
habitat. Dredging and disposal activities have also not been
significantly impacted by the presence of the plover, and we see no
reason why critical habitat designation would alter this scenario.
Comment 6: We received several comments from citizens concerned
specifically about the impact that critical habitat designation would
have on Texas Gulf Coast activities including: (1) The exploration,
development, and production of oil and gas reserves; (2) recreational
use of coastal areas; (3) real-estate development projects for
residential and commercial use; and (4) transportation of commodities
on the Gulf Intracoastal Waterway. One economic study submitted by a
commenter suggested that critical habitat designation could result in a
total net present value cost over 30 years of $261 to $979 million to
the Laguna Madre Environs economy.
Our Response: We believe that the above mentioned economic study
submitted by BNP Petroleum Corporation overstates the effects that may
result from this designation. The economic costs developed by the
study's authors depend on two main assumptions. First, the authors
assume that the critical habitat being designated for the wintering
plover, contrary to our descriptions, consists of large areas of
unoccupied territory lacking the necessary primary constituent elements
needed to support the plover. As a result, the authors believe that
delays will occur to future activities as project
[[Page 36061]]
proponents will need to enter into consultations with the Service, that
will enviably lead to delays causing economic effects.
Regarding the first assumption, critical habitat, by definition,
only includes those areas containing the primary constituent elements
identified in the rule. We believe that all of these areas are
currently occupied by the wintering plover and that Federal agencies
are already required to ensure that the activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of the plover. Federal agencies already must notify us of activities
that may adversely affect the plover. Because we are only designating
areas occupied by the plover and because any activities that may
adversely modify critical habitat would also likely jeopardize the
continued existence of the species, we do not believe that critical
habitat designation will have any appreciable economic effect above
current effects resulting from the listing of the plover in 1985.
The BNP study estimates impacts to the natural gas industry, which
constitutes the majority of their study's effects, based on the key
assumption that critical habitat designation could result in project
delays between six months and two years arising from section 7
consultations. In a review of piping plover section 7 consultations in
the Gulf Coast Sates where critical habitat is being designated, very
few involved oil and gas exploration and production activities. Mostly
this is because existing oil and gas production activity takes place
offshore and is not on the beaches or flats occupied by plover and as a
result these activities were not likely to adversely affect the
species. Also, in many instances where oil and gas production
activities affect the areas occupied by the plover, such as pipeline
crossings and gathering stations for near shore production, either the
environmental impacts to the plover were not significant enough to
warrant a formal consultation or the activity lacked a Federal nexus.
Although the permitting process for oil and gas exploration and
production activities is complex and involves a myriad of Federal,
State, and local requirements, a formal consultation is normally
completed within 135 days. We therefore disagree with the study's
authors that section 7 consultations can lead to significant project
delays for the industry.
Also, as noted in the BNP study, future production in the Gulf
Coast is likely to occur in very deep water (14,000 to 18,000 feet),
well away from critical habitat areas. This makes it highly unlikely
critical habitat would have any effect. Due to the distance future
production areas are from the shoreline, products will most likely be
barged into existing ports with offloading facilities because it will
be uneconomical or technologically infeasible to connect deepwater
platforms to the existing infrastructure of near-shore pipelines. As a
result, critical habitat areas are highly unlikely to be affected by
future industry activities. In addition, we do not believe that the oil
and gas industry will be affected by any significant increase in
section 7 consultations because of this rulemaking, and we disagree
with the findings in their study.
That being said, the economic analysis prepared for the Service
finds that the designation of critical habitat for the piping plover
may result in additional section 7 consultation costs because future
consultations would need to address critical habitat issues, in
addition to the effects on the species, and would therefore require
more time. Additionally, we acknowledge that some Federal agencies may
initiate consultation more often than before, because critical habitat
has increased their awareness of the species. Even though consideration
of critical habitat is not likely to impose further project
modifications beyond those required by the listing of the plover,
project proponents may nonetheless incur costs above and beyond those
attributable to the listing of the plover as a threatened species.
These costs might include the value of time spent in conducting section
7 consultations beyond those associated with the listing, and/or delays
in implementing oil and gas activities. Refer to the ``Exclusions Under
4(b)(2) of the Act'' section of this rule for our analysis under
section 4(b)(2) of the Act.
Similarly, we do not believe that this rule will have a significant
effect on the other three factors: (1) Recreational use of coastal
areas; (2) real-estate development projects for residential and
commercial use; and (3) transportation of commodities on the Gulf
Intracoastal Waterway. First, we do not believe that recreational use
of coastal areas will be affected because no such effects have been
experienced since the plover was listed in 1985, combined with the fact
that we are only designating occupied critical habitat. Furthermore,
the plovers spend the wintering season foraging and roosting and then
migrate north in the summer where they breed. Breeding areas in the
north may experience partial or temporary closures during the breeding
season to protect ground level nests but such effects are not expected
to occur in the wintering areas affected by this rule because of the
fact that the birds are mobile and not nesting during the wintering
season. Furthermore, in a recent study that looked at the effect of
beach closures in breeding areas, no significant economic effects were
identified due to the availability of nearby beaches (Unsworth, et al.,
An Economic Analysis of Piping Plover Recovery Activities in the
Atlantic Coast, 1998).
Our revised economic analysis also considered in greater detail the
effect the rule could have on real-estate development projects. Using a
conservative assumption that critical habitat designation could result
in one to two and one-half percent of forgone future lot development
due to project modifications resulting from critical habitat
designation, the analysis found that total costs to developers over a
ten-year time frame could range from about $1.5 million to $4.5
million. This represents less than one percent of the total estimated
value of future planned housing in southern Texas. Furthermore, the
revised analysis found no evidence to support the claim that the
section 7 consultation process has resulted in significant time delay
estimates as argued by the commenter.
Finally, the revised economic analysis also further considered the
effect the rule could have on commodity transportation within the Gulf
Intracoastal Waterway. The commenter was specifically concerned that
the designation of critical habitat could result in the closure of the
waterway because the Service could require disposal of dredged
materials to be disposed further from the beach areas, which could
become cost prohibitive. This scenario, however, is highly unlikely as
dredging and disposal operations in the area have taken place
continually since the plover was originally listed as an endangered
species in 1985. Because this area is occupied by the plover, any
effects on dredging and disposal activities in the future would occur
regardless of critical habitat designation. However, with a single,
unique exception that is addressed in the revised analysis, dredging
and disposal activities have not been negatively impacted by the
presence of the plover and consequently are not expected to be further
impacted by critical habitat.
Comment 7: We received many comments from citizens of Marco Island,
Florida concerned over the impact that critical habitat would have on
their recreational beach-use activities
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as well as spillover effects to their local housing values.
Our Response: As mentioned previously, we do not believe that
recreational use of coastal areas will be significantly affected
because recreational impacts since listing have been minimal and only
habitat that is currently occupied by the wintering plover is being
designated. Again, while beach closures, or more commonly beach
restrictions, have occurred to protect the piping plover, these
closures occur during breeding season in the summer. Plovers typically
migrate north in the spring and summer seasons to breed and occupy
areas outside of wintering habitat, which this rule addresses.
Furthermore, in a recent study that looked at the possible effects of
beach closures in breeding areas, no significant economic effects were
identified due to the availability of nearby beaches (Unsworth, et al.,
An Economic Analysis of Piping Plover Recovery Activities in the
Atlantic Coast, 1998).
Comment 8: Many commenters expressed concern that the designation
includes unoccupied habitat that does not contain the primary
constituent elements necessary to support the plovers and that the DEA
overlooked this effect.
Our Response: The determination of whether or not proposed critical
habitat is within the geographic range occupied by the plovers is part
of the biological decision-making process and lies beyond the scope of
an economic analysis. For a discussion of the biological justification
of why we believe the area being designated is within the geographical
area occupied by the plover, see our responses to Issue A.
Comment 9: The Environmental Protection Agency (EPA) indicated that
our economic analysis should evaluate Executive Order 12898, Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations.
Our Response: Executive Order 12898 requires that each Federal
agency make achieving environmental justice part of its mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minorities and low-income populations. We
do not believe that the designation of critical habitat for endangered
and threatened species results in any changes to human health or
environmental effects on surrounding human populations, regardless of
their socioeconomic characterization. As such, we do not believe that
Executive Order 12898 applies to critical habitat designations.
Issue L: Critical Habitat and Habitat Conservation Plans (HCPs)
In the proposed rule we requested input on alternative approaches
to issuing any future incidental take permits under section 10(a)(1)(B)
of the Act, and how that process may be influenced by critical habitat
designation. Five alternatives were provided:
(1) Retain critical habitat designation within the HCP boundaries
and use the section 7 consultation process on the issuance of the
incidental take permit to ensure that any take we authorize will not
destroy or adversely modify critical habitat;
(2) Revise the critical habitat designation upon approval of the
HCP and issuance of the section 10(a)(1)(B) permit to retain only
preserve areas, on the premise that they encompass areas essential for
the conservation of the species within the HCP area and require special
management and protection in the future. Assuming that we conclude, at
the time an HCP is approved and the associated incidental take permit
is issued, that the plan protects those areas essential to the
conservation of the piping plover, we would revise the critical habitat
designation to exclude areas outside the reserves, preserves, or other
conservation lands established under the plan. Consistent with our
listing program priorities, we would publish a proposed rule in the
Federal Register to revise the critical habitat boundaries;
(3) As in (2) above, retain only preserve lands within the critical
habitat designation, on the premise that they encompass areas essential
for conservation of the species within the HCP area and require special
management and protection in the future. However, under this approach,
the exclusion of areas outside the preserve lands from critical habitat
would occur automatically upon issuance of the incidental take permit.
The public would be notified and have the opportunity to comment on the
boundaries of the preserve lands and the revision of designated
critical habitat during the public review and comment process for HCP
approval and permitting;
(4) Remove designated critical habitat entirely from within the
boundaries of an HCP when the plan is approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the species and no further special management or protection
is required. Consistent with our listing program priorities, we would
publish a proposed rule in the Federal Register to revise the critical
habitat boundaries; or
(5) Remove designated critical habitat entirely from within the
boundaries of HCPs when the plans are approved (including preserve
lands), on the premise that the HCP establishes long-term commitments
to conserve the species and no additional special management or
protection is required. This exclusion from critical habitat would
occur automatically upon issuance of the incidental take permit. The
public would be notified and have the opportunity to comment on the
revision of designated critical habitat during the public notification
process for HCP approval and permitting.
Comment 1: All who commented on this issue favor alternative 1, to
retain critical habitat within any future HCP boundaries and use the
section 7 consultation process to evaluate the effects of the HCP on
critical habitat. Most commenters believed that alternatives 3 through
5 are illegal under the Act, and that alternative 2 would likely be
illegal as well.
Our Response: We recognize that critical habitat is only one of
many conservation tools for federally listed species. HCPs are one of
the most important tools for reconciling land use with the conservation
of listed species on non-Federal lands. Section 4(b)(2) of the Act
allows us to exclude areas from critical habitat designation where the
benefits of exclusion outweigh the benefits of designation, provided
the exclusion will not result in the extinction of the species. We
believe that in most instances the benefits of excluding HCPs from
critical habitat designations will outweigh the benefits of including
them. A detailed rationale for this determination can be found in the
``Exclusions Under 4(b)(2) of the Act'' section of this final rule.
We anticipate that any future HCPs in the range of wintering piping
plovers will include it as a covered species and provide for its long-
term conservation. We expect that HCPs undertaken by local
jurisdictions (e.g., counties, cities) and other parties will identify,
protect, and provide appropriate management for those specific lands
within the boundaries of the plans that are essential for the long-term
conservation of the species. Section 10(a)(1)(B) of the Act states that
HCPs must meet issuance criteria, including minimizing and mitigating
any take of the listed species covered by the permit to the extent
practicable, and that the taking must not appreciably reduce the
likelihood of the survival and recovery of the species in the wild. We
fully expect that our future
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analyses of HCPs and section 10(a)(1)(B) permits under section 7 will
show that covered activities carried out in accordance with the
provisions of the HCP and section 10(a)(1)(B) permits will not result
in the destruction or adverse modification of critical habitat
designated for the piping plover.
In the event that future HCPs covering wintering piping plovers are
developed within the boundaries of designated critical habitat, we will
work with applicants to ensure that the HCPs provide for protection and
management of habitat areas essential for the conservation of the
piping plover by either directing development and habitat modification