Tuesday, October 31, 2006

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Critical Habitat Designation for the Cape Sable Seaside Sparrow; Proposed Rule

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DEPARTMENT OF THE INTERIOR Services Office (see ADDRESSES); Ecological Services Office at telephone 772–562–3909; facsimile 772–562–3909. Fish and Wildlife Service 772–562–4288. Persons who use a Our practice is to make comments, telecommunications device for the deaf including names and home addresses of 50 CFR Part 17 (TDD) may call the Federal Information respondents, available for public review RIN 1018–AU79 Relay Service (FIRS) at 800–877–8339, 7 during regular business hours. days a week and 24 hours a day. Individual respondents may request that Endangered and Threatened Wildlife SUPPLEMENTARY INFORMATION: we withhold their names and home addresses, etc., but if you wish us to and Plants; Critical Habitat Public Comments Solicited Designation for the Cape Sable consider withholding this information, Seaside Sparrow We intend that any final action you must state this prominently at the resulting from this proposal will be as beginning of your comments. In AGENCY: Fish and Wildlife Service, accurate and as effective as possible. addition, you must present rationale for Interior. Therefore, comments or suggestions withholding this information. This ACTION: Proposed rule. from the public, other concerned rationale must demonstrate that governmental agencies, the scientific disclosure would constitute a clearly SUMMARY: We, the U.S. Fish and community, industry, or any other unwarranted invasion of privacy. Wildlife Service (Service), propose to interested party concerning this Unsupported assertions will not meet revise critical habitat for the endangered proposed rule are hereby solicited. this burden. In the absence of Cape Sable seaside sparrow Comments particularly are sought exceptional, documentable (Ammodramus maritimus mirabilis) concerning: circumstances, this information will be under the Endangered Species Act of (1) The reasons any habitat should or released. We will always make 1973, as amended (Act). In total, should not be determined to be critical submissions from organizations or approximately 156,350 acres (ac) habitat as provided by section 4 of the businesses, and from individuals (63,273 hectares (ha)) fall within the Act (16 U.S.C. 1531 et seq.), including identifying themselves as boundaries of the proposed critical whether the benefit of designation will representatives of or officials of habitat designation. The proposed outweigh any threats to the species due organizations or businesses, available critical habitat is located in Miami-Dade to designation; for public inspection in their entirety. and Monroe counties, Florida. (2) Specific information on the Role of Critical Habitat in Actual DATES: We will accept comments from amount and distribution of Cape Sable seaside sparrow habitat, including areas Practice of Administering and all interested parties until January 2, Implementing the Act 2007. We must receive requests for occupied by Cape Sable seaside public hearings, in writing, at the sparrows at the time of listing and Attention to and protection of habitat address shown in the ADDRESSES section containing features essential to the is paramount to successful conservation by December 15, 2006. conservation of the species, and areas actions. The role that designation of critical habitat plays in protecting ADDRESSES: If you wish to comment, not occupied at the time of listing that habitat of listed species, however, is you may submit comments and are essential to the conservation of the often misunderstood. As discussed in materials concerning this proposal by species; (3) Land use designations and current more detail below in the discussion of any one of several methods: or planned activities in the subject areas exclusions under the Act’s section 1. You may submit written comments and their possible impacts on proposed 4(b)(2), there are significant limitations and information by mail or hand- critical habitat; on the regulatory effect of designation delivery to Tylan Dean, U.S. Fish and (4) Any foreseeable economic, under section 7(a)(2) of the Act. In brief, Wildlife Service, South Florida national security, or other potential (1) designation provides additional Ecological Services Office, 1339 20th impacts resulting from the proposed protection to habitat only where there is Street, Vero Beach, Florida 32960. designation and, in particular, any a Federal nexus; (2) the protection is 2. You may send comments by impacts on small entities; and relevant only when, in the absence of electronic mail (e-mail) to _ (5) Whether our approach to designation, destruction or adverse Tylan [email protected]. Please see the designating critical habitat could be modification of the critical habitat Public Comments Solicited section improved or modified in any way to would take place (in other words, other below for file format and other provide for greater public participation statutory or regulatory protections, information about electronic filing. and understanding, or to assist us in policies, or other factors relevant to 3. You may fax your comments to accommodating public concerns and agency decision-making would not 772–562–4288. comments. prevent the destruction or adverse 4. You may submit comments via the If you wish to comment, you may modification); and (3) designation of Federal eRulemaking Portal: http:// submit your comments and materials critical habitat triggers the prohibition www.regulations.gov. Follow the concerning this proposal by any one of of destruction or adverse modification instructions for submitting comments. several methods (see ADDRESSES). Please of that habitat, but it does not require Comments and materials received, as submit electronic comments to specific actions to restore or improve well as supporting documentation used [email protected] in ASCII file format habitat. in the preparation of this proposed rule, and avoid the use of special characters Currently, only 475 species, or 36 will be available for public inspection, or any form of encryption. Please also percent of the 1,311 listed species in the by appointment, during normal business include ‘‘Attn: Cape Sable seaside United States under the jurisdiction of hours at the South Florida Ecological sparrow’’ in your e-mail subject header the Service, have designated critical Services Office, 1339 20th Street, Vero and your name and return address in habitat. We address the habitat needs of Beach, Florida (telephone 772–562– the body of your message. If you do not all 1,311 listed species through 3909). receive a confirmation from the system conservation mechanisms such as FOR FURTHER INFORMATION CONTACT: that we have received your message, listing, section 7 consultations, the Tylan Dean, South Florida Ecological contact us directly by calling our South section 4 recovery planning process, the

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section 9 protective prohibitions of made. These lawsuits have subjected the The Cape Sable seaside sparrow is unauthorized take, section 6 funding to Service to an ever-increasing series of one of eight extant subspecies of seaside the States, the section 10 incidental take court orders and court-approved sparrow. Its distribution is limited to the permit process, and cooperative, settlement agreements, compliance with short-hydroperiod wetlands at the nonregulatory efforts with private which now consumes nearly the entire downstream end of the greater landowners. The Service believes that it listing program budget. This leaves the system on the southern tip of is these measures that may make the Service with little ability to prioritize its mainland Florida. Unlike most other difference between extinction and activities to direct scarce listing subspecies of seaside sparrow, which survival for many species. resources to the listing program actions occupy primarily brackish tidal systems In considering exclusions of areas with the most biologically urgent (Post and Greenlaw 1994, p. 4), the Cape proposed for designation, we evaluated species conservation needs. Sable seaside sparrow currently occurs the benefits of designation in light of The consequence of the critical primarily in the short-hydroperiod Gifford Pinchot Task Force v. U.S. Fish habitat litigation activity is that limited freshwater wet prairies, also referred to and Wildlife Service, 378 F. 3d 1059 listing funds are used to defend active as marl prairies, though it still occupies (9th Cir 2004). In that case, the Ninth lawsuits, to respond to Notices of Intent brackish marshes in some areas. Circuit invalidated the Service’s to sue relative to critical habitat, and to The Cape Sable seaside sparrow is regulation defining ‘‘destruction or comply with the growing number of generally sedentary, secretive, and non- adverse modification of critical habitat.’’ adverse court orders. As a result, listing migratory, and it occupies the marl In response, on December 9, 2004, the petition responses, the Service’s own prairies of southern Florida year-round. Director issued guidance to be proposals to list critically imperiled During the breeding season (March to considered in making section 7 adverse species, and final listing determinations August), male sparrows establish and modification determinations. This on existing proposals are all defend territories that are variable in proposed critical habitat designation significantly delayed. size, with average sizes ranging from 2.2 does not use the invalidated regulation The accelerated schedules of court- to 8.9 ac (0.9 to 3.6 ha) within different in our consideration of the benefits of ordered designations have left the sites and years (Werner and Woolfenden including areas in this final designation. Service with limited ability to provide 1983, p. 67; Pimm et al. 2002, p. 18). The Service will carefully manage for public participation or to ensure a Sparrows are monogamous (Post and future consultations that analyze defect-free rulemaking process before Greenlaw 1994, p. 10), with a single impacts to designated critical habitat, making decisions on listing and critical female occurring within a male’s particularly those that appear to be habitat proposals, due to the risks breeding territory. Throughout the resulting in an adverse modification associated with noncompliance with breeding season, the majority of a determination. Such consultations will judicially imposed deadlines. This in sparrow pair’s activities occur within be reviewed by the Regional Office prior turn fosters a second round of litigation this territory, including breeding, to finalizing to ensure that an adequate in which those who fear adverse feeding, and sheltering. Outside of the analysis has been conducted that is impacts from critical habitat breeding season, sparrows generally informed by the Director’s guidance. designations challenge those remain sedentary in the same general On the other hand, to the extent that designations. The cycle of litigation vicinity of their breeding territories, but designation of critical habitat provides appears endless and is expensive, thus occupy a larger area than the breeding protection, that protection can come at diverting resources from conservation season territory. Average non-breeding significant social and economic cost. In actions that may provide relatively more season home range size was addition, the mere administrative benefit to imperiled species. approximately 42.1 ac (17.1 ha) and process of designation of critical habitat The costs resulting from the ranged from 14.1 to 137.1 ac (5.7 to 55.5 is expensive, time-consuming, and designation include legal costs, the cost ha) (Dean and Morrison 2001, p. 36). controversial. The current statutory of preparation and publication of the Some individuals make exploratory framework of critical habitat, combined designation, the analysis of the movements away from their territories with past judicial interpretations of the economic effects and the cost of and may occasionally relocate their statute, make critical habitat the subject requesting and responding to public territories and home ranges before again of excessive litigation. As a result, comment, and in some cases the costs resuming a sedentary movement pattern critical habitat designations are driven of compliance with the National (Dean and Morrison 2001, p. 36). by litigation and courts rather than Environmental Policy Act (NEPA; 42 Sparrows are generally short-lived, biology, and made at a time and under U.S.C. 4321 et seq.). These costs, which with an average individual annual a time frame that limits our ability to are not required for many other survival rate of 66 percent (Lockwood et obtain and evaluate the scientific and conservation actions, directly reduce the al. 2001, p. 278). The average lifespan is other information required to make the funds available for direct and tangible probably 2 to 3 years. Consequently, a designation most meaningful. conservation actions. sparrow population requires favorable In light of these circumstances, the breeding conditions in most years to be Background Service believes that additional agency self-sustaining and cannot persist under discretion would allow our focus to We intend to discuss topics directly poor conditions for extended periods return to those actions that provide the relevant to the designation of critical (Lockwood et al. 1997, p. 729; greatest benefit to the species most in habitat in this proposed rule. Additional Lockwood et al. 2001, p. 281; Pimm et need of protection. topics may be found under the ‘‘Primary al. 2002, p. 74). Constituent Elements’’ discussion. For Sparrows generally begin nesting in Procedural and Resource Difficulties in more information on the Cape Sable early March (Lockwood et al. 2001, p. Designating Critical Habitat seaside sparrow, including 278), but they may begin territorial We have been inundated with characteristics and life history, refer to behavior, courtship, and nest-building lawsuits for our failure to designate the South Florida Multi-Species in late February (Werner and critical habitat, and we face a growing Recovery Plan, available at the South Woolfenden 1983, p. 64; Lockwood et number of lawsuits challenging critical Florida Ecological Services Web site al. 1997, p. 722). This timing coincides habitat determinations once they are http://www.fws.gov/verobeach. with the dry season, and most areas

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within the marl prairies are either dry in 1918 and was originally thought to be revealed a decline in the number of or only shallowly inundated at the limited in distribution to Cape Sable sparrows and the amount of habitat beginning of the breeding season. (Howell 1919, p.87). On September 2, available in the area. Sparrows were Sparrows build nests above the ground 1935, a severe hurricane struck the Keys extirpated from this area by 1981 surface, typically 6.7 to 7.1 inches (in) and southern Florida, with the (Kushlan and Bass 1983, p. 143), and (17 to 18 centimeters (cm)) over the hurricane’s center passing within a few there is little or no remaining suitable ground (Werner 1975, p. 147; Lockwood miles of Cape Sable (Stimson 1956, p. habitat in the area. et al. 2001, p. 278). Nests are woven into 490). Post-hurricane observations Within the last 20 years, sparrows clumps of dense vegetation and are suggested that, in the vicinity of Cape have consistently occurred within the well-concealed (Werner 1975, p. 145; Sable, water levels resulting from the marl prairies that have had appropriate Post and Greenlaw 1994, p. 14). Nest storm surge rose approximately 8 feet hydrologic and vegetation conditions cups are consistently concealed from (ft) (2.4 meters (m)) above normal water over time. There are six spatially above (Post and Greenlaw 1994, p. 13), levels, and the sparrow was thought to distinct regions across the southern either through construction of a domed have disappeared from the area as a Everglades where sparrows currently cover or through modifying vegetation result of the storm, despite occasional occur, and these same areas have in the vicinity (Werner 1975, p. 142; reports of sparrows that could not be consistently supported the sparrow Post and Greenlaw 1994, pp. 13–14). verified (Stimson 1956, p. 492). Between population. These regions are separated The sparrow nesting cycle, from nest 1935 and the 1950s, searches on Cape from each other by areas of unsuitable construction to independence of young, Sable failed to locate sparrows (Stimson habitat, such as the forested lasts approximately 30 to 50 days 1956, p. 492). Despite the fact that communities of Long Pine Key, the (Werner 1975, p. 163; Lockwood et al. sparrows were again reported on Cape deep-water slough communities of 2001, p. 278), and sparrows may renest Sable in 1970 (Kushlan and Bass 1983, Slough and , following both successful and failed p. 140; Werner and Woolfenden 1983, p. and other areas that do not support the nesting attempts (Werner 1975, p. 163; 57), the habitat in the area had been specific conditions that sparrows Post and Greenlaw 1994, p. 13; changing significantly from cordgrass require. The distances between these Lockwood et al. 2001, p. 278). Because marshes to mangroves and mud flats regions range from 2 to 20 miles (mi) of the long breeding season in southern since the 1935 hurricane, and sparrows (3.2 to 32.2 kilometer (km)), and Florida, sparrows regularly nest several are considered to have been extirpated sparrows rarely move among the regions times within a year and may be capable from this area since 1981 (Kushlan and (Walters et al. 2000, p. 1107; Lockwood of successfully fledging 2 to 4 clutches, Bass 1983, p. 142). et al. 2001, p. 279), though some such though few sparrows probably reach In 1928, Cape Sable seaside sparrows movements have now been documented this level of success (Lockwood et al. were reported to the northwest of (Lockwood 2006, p. 2). For the last 20 2001, p. 278). Second and third nesting Pinecrest, along the western mainland years, these areas have been commonly attempts may occur during the early coast of Florida, in the vicinity of what referred to as sparrow subpopulations A portion of the wet season, and nests is today Everglades City (Nicholson through F (Pimm et al. 2002, p. 69). later in the season occur over water. The 1928, p. 237). The location of this In 1972, Cape Sable seaside sparrows height of nests above ground surface mainland record was improperly were discovered in the vicinity of increases after water levels rise, and reported, and the true location was not Taylor Slough, in what is today known average height of late-season nests is 8.3 accurately reported until 1954 (Sprunt as subpopulation C, east of Shark River in (21 cm) above ground surface 1954, p. 479). Stimson conducted Slough (Ogden 1972, p. 852; see the (Lockwood et al. 2001, p. 278). extensive searches on the Florida individual units descriptions in the Nest success rates vary among years mainland in the vicinity of the corrected Proposed Critical Habitat section for and range from 12 to 53 percent 1928 sparrow observation and found identification of the subpopulations). (Lockwood et al. 2001, p. 278). Nest sparrows to be widespread throughout Subsequent investigation revealed that a predation is the primary documented both coastal cordgrass (reported as S. sparrow had been reported to cause of nest failure (Pimm et al. 2002, patens, but probably S. bakeri) (Werner (ENP) in this p. 23), accounting for more than 75 and Woolfenden 1983, p. 60) marshes area in 1958, but the observation was percent of all nest failures (Lockwood et and freshwater prairies along the never verified (Werner 1975, p. 32; al. 1997, p. 723). Unlike many other western edge of the Everglades (Stimson Pimm et al. 2002, p. 10). Surveys wetland species, nest predation rates for 1956, p. 490). However, by 1968, conducted with the use of a helicopter sparrows are lowest under dry Stimson (1968, p. 867) concluded that by Werner in 1974 and 1975 sought to conditions. As water levels begin to rise widespread fires in this region had characterize the distribution and above ground surface with the onset of severely impacted the sparrows in that abundance of sparrows in this region. the summer rains in May or June, nests area, and he expected them to be These initial surveys revealed that become more detectable, and therefore, extirpated from the area as a result. sparrows were widely distributed and nest predation rates also rise. Nests that In the early 1940s, Anderson (1942, p. abundant (Werner 1975, p. 32). The are active after June 1, when water 12) reported sparrows in the coastal sparrow locations reported included levels are above ground, are more than marshes in the vicinity of Ochopee. locations within what are today known twice as likely to fail as nests during Subsequent searches revealed that as subpopulations B, C, D, E, and F. drier periods (Lockwood et al. 2001, p. sparrows occurred south of Ochopee They occupied an area of approximately 278). This effect appears to be a result along the coastal marshes landward of 21,745 to 31,629 ac (8,800 to 12,800 ha), of both increased likelihood of nests the mangrove zone (Stimson 1956, p. and the number of sparrows occurring being flooded and an increased 492). Werner (1975, p. 42) reported that within this area was estimated to range likelihood of predation (Lockwood et al. habitat occupied by sparrows in the from 1,500 to 26,300 individuals 1997, p. 724; Lockwood et al. 2001, p. Ochopee area was changing from (Werner 1975, p. 32). Because of the 278; Pimm et al. 2002, p. 25). cordgrass marshes to other species, and magnitude of the area occupied and the The Cape Sable seaside sparrow was mangroves were encroaching into the large estimates of population size, first discovered in the cordgrass area. Werner’s searches in the area from ecologists concluded that sparrows (Spartina spp.) marshes on Cape Sable 1970 through 1975 (Werner 1975, p. 42) probably occurred within this area for

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many years. The difficulty in accessing periods when the plant communities are some conditions (Taylor 1983, p. 151; the areas and the vastness of the areas dry, usually coinciding with the early Werner and Woolfenden 1983, p. 62). (Kushlan and Bass 1983, p. 145), as well winter and late spring (December to This is probably a result of the as the secretiveness of the sparrow, all May), sparrows travel across the ground sparrow’s dependence on some level of contributed to the failure to document beneath the grasses and only structural complexity that must develop the sparrow’s occurrence in the area occasionally perch on the vegetation. to provide cover, support nests, and previously. The sparrow populations During the wet season (June to allow them to move through the habitat within these areas probably fluctuated November), these areas are continually during wet periods. Fire is not over time in response to changes in inundated, with peak water depths uncommon within the areas occupied habitat suitability resulting from fires occasionally exceeding 2 ft (0.6 m) (Nott by sparrows, and nearly all areas where and hydrologic conditions (Taylor 1983, et al. 1998, p. 26). During these periods, sparrows currently occur have been p. 148; Kushlan and Bass 1983, p. 145). sparrows travel within the grass, burned within the past 10 to 20 years These fluctuations may have also perching low in the clumps, hopping (Lockwood et al. 2003, p. 466). Large contributed to the lack of sparrow among the bases of dense grass clumps, fires, such as the Ingraham fire of 1989, detections in these areas previously. and walking over matted grass. They fly which burned approximately 98,842 ac Throughout the known history of the more frequently and regularly perch low (40,000 ha), pose a significant risk to Cape Sable seaside sparrow, the species in the vegetation, but they generally sparrow subpopulations because they has been recognized to associate with remain extremely inconspicuous (Dean have the potential to render the habitat either of two vegetation communities: and Morrison 2001, p. 51). supporting several entire sparrow (1) The cordgrass marshes that are partly Periphyton is another important subpopulations unsuitable for 2 to 3 tidally influenced and occur within a characteristic of sparrow habitat. years or more (Lockwood et al. 2003, p. narrow band of the coast just landward Periphyton is a complex matrix of 467). A combination of naturally ignited from the mangrove communities, and calcitic algae and associated organic and human-ignited (prescribed, arson, (2) the short-hydroperiod freshwater detritus that plays an important role in or accidental) fires have resulted in marl prairies that flank the deeper the development of soils within the different fire frequencies in different sloughs of the southern Everglades. The marl prairies (Davis et al. 2005, p. 825). portions of the sparrow’s range. Most of tidally influenced cordgrass marshes During wet periods, a periphyton mat the plant species that occur within constitute typical seaside sparrow forms on all submerged substrates, sparrow habitat are fire-adapted and habitat (Post and Greenlaw 1994, p. 3). including underlying limestone and respond quickly following fire (Snyder Occurrence year-round within the vegetation stems. Marl soil accretion is 2003, pp. 203–204). Several of the freshwater marl prairies is relatively directly related to the extent and dominant grass species, including unique among seaside sparrows, with productivity of periphyton (Davis et al. Muhlenbergia, also flower primarily only the now-extinct dusky seaside 2005, p. 825), and marl soils are following fires during the growing sparrow (Ammodramus maritimus consequently generally deeper in areas season (Main and Barry 2002, p. 433). nigrescens) exhibiting a similar habitat with longer hydroperiods. In some Under normal conditions, fires do not affinity; in those freshwater areas areas, a dense periphyton mat forms on kill the individual plants that make up occupied by the dusky seaside sparrow, the water surface and intertwines with the dominant species in sparrow the habitat was still primarily composed the vegetation such that sparrows may habitat, and fires only remove the of cordgrass (Post and Greenlaw 1994, p. be able to move across it under some above-ground growth and leaf litter 4). The freshwater habitats occupied by conditions. These periphyton mats are (Snyder and Schaeffer 2004). The plant the Cape Sable seaside sparrow are not an integral component of marl prairies species rapidly respond, sprout quickly dominated by cordgrass; the most and can affect the vegetation species following fire, and grow rapidly. Many commonly associated species reported and structure in an area and even the of the dominant grasses may grow more is muhly grass (Muhlenbergia filipes) microclimate, which all relates to the than 15 in (38 cm) after only a few (Werner 1975, p. 77; Kushlan and Bass suitability of an area for sparrows. weeks (Steward and Ornes 1975, p. 167; 1983, p. 145; Werner and Woolfenden Small tree islands and individual Snyder 2003, pp. 203–204). For this 1983, p. 59; Post and Greenlaw 1994, p. trees and shrubs occur throughout the reason, the species composition and 4). However, a variety of vegetation areas occupied by the sparrows, but at even the general structural species occurs within the freshwater a very low density. Sparrows do not marl prairies occupied by Cape Sable require woody vegetation during any characteristics of the vegetation may be seaside sparrows, including vegetation aspect of their normal behavior and nearly indistinguishable from unburned from which Muhlenbergia is absent generally avoid areas where shrubs and areas only 2 to 3 years after burning (Ross et al. 2006, pp. 7–16). Other trees are either dense or evenly (Lockwood et al. 2005, pp. 8–9). Under dominant species that occur in these distributed. However, the small tree unfavorable conditions such as extreme prairies include sawgrass (Cladium islands and scattered shrubs and trees wet or dry periods, vegetation recovery jamaicense), Florida little bluestem may serve as refugia during extreme from fire may be prolonged, and both (Schizachyrium rhizomatum), black- environmental conditions and may be species composition and structure may topped sedge (Schoenus nigricans), and used as escape cover when fleeing from be affected. beak rushes (Rhynchospora spp.) potential predators (Dean and Morrison Hydrology of the area is an important (Werner and Woolfenden 1983, pp. 57– 2001, p. 38). Because of the sparrows’ component of the habitat. In addition to 61; Ross et al. 2006, pp. 6–16). general aversion to dense trees and directly affecting the sparrow and its Cape Sable seaside sparrows occupy woody vegetation, encroaching trees ability to forage, move within habitat, the above two community types year- and shrubs can quickly degrade and nest, hydrologic patterns largely round, and the vegetation must support potential habitat. dictate the plant community all sparrow life stages. Sparrows occur After fires, sparrows do not regularly composition, and even the fire in the heart of the expansive Everglades occupy burned areas for 2 to 3 years frequency. Ross et al. (2006) have wetland system, in a harsh environment (Pimm et al. 2002, p. 97; Lockwood et investigated the relationship between where flooding, fires, and high al. 2005, p. 10), though they can re- vegetation species composition and temperatures occur regularly. During occupy areas after only one year under hydroperiods. Their preliminary results

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indicate that hydroperiods in the range longer time for recovery and may result Scherf, and Rosalyn Scherf, to revise of 90 to 270 days support the plant in a different plant species composition critical habitat for the Cape Sable species upon which sparrows primarily and structure from the vegetation that seaside sparrow. On July 10, 2000 (65 depend (Ross et al. 2006, pp. 14, 40). was present prior to the fire. Under less FR 42316), we published a 90-day Longer hydroperiods result in such extreme conditions, vegetation may finding in which we determined that the unfavorable habitat conditions as dense, recover following fire more quickly petition presented substantial continuous growth of sawgrass or spike when water levels are near the soil information indicating that revision may rushes (Eleocharis spp.) that sparrows surface, providing ample water for the be warranted. On October 23, 2001 (65 do not occupy. Shorter hydroperiods plants. FR 53573), we published a 12-month may allow encroachment of woody The six distinct areas that Cape Sable finding in which we announced that species and may have an elevated seaside sparrows occupy have different revision of critical habitat may be potential of fire (Davis et al. 2005, p. environmental conditions that affect the warranted as a result of detailed new 828). Within this optimal inundation likelihood of flooding and fire. Areas of information about sparrow distribution duration, several different vegetation sparrow habitat that are at higher and ecology that had been obtained associations may result, but most are elevation or in areas that tend to be since critical habitat was originally used regularly by sparrows. The local overdrained, such as some areas designated. We concluded that some variability across the landscape within proximate to urban and agricultural new areas would likely need to be areas where sparrows occur produces a areas (Van Lent and Johnson 1993, p. 5), added and some removed from the heterogeneous arrangement of are consequently more likely to burn critical habitat designation. For more vegetation conditions that provide under dry conditions, but may be more information on previous Federal habitat for sparrows during some likely to be favorable to sparrows under actions, including the rationale for environmental conditions. A complex very wet conditions. Similarly, areas of revising critical habitat, refer to that 12- relationship between hydrologic sparrow habitat that are immediately month finding. conditions, fire history, and soil depth downstream from water control Until now, work on the revision of determines the specific vegetation structures and in relatively low-lying critical habitat for the Cape Sable conditions at a site, and variation in areas are generally less likely to burn seaside sparrow has been precluded due these characteristics may result in a frequently (Ross et al. 2006, p. 43), but to other, higher priority listing and complex mosaic of vegetation they may be more subject to damaging critical habitat actions. On December 20, characteristics (Taylor 1983, p. 152; water levels than other areas during wet 2000, a lawsuit was filed in the U.S. Ross et al. 2006, pp. 1–46). This periods (Nott et al. 1998, p. 31; Pimm District Court for the District of variability is characteristic of these et al. 2002, p. 107). This variability in Columbia alleging that the Service had habitats. the physical and environmental not complied with the Act by failing to Average annual rainfall in the characteristics among areas occupied by issue a 12-month finding as to how it Everglades is approximately 56 in (142 the sparrows, in addition to the local planned to proceed with the petitioned cm) (ENP 2005, p. 15), with the majority meteorological variability within the revision to critical habitat and that the falling within the summer months, region, may help maintain the sparrow revision was withheld or unreasonably which coincides with the latter half of population over time. delayed under the Administrative the sparrow nesting season. This rainfall Procedure Act (5 U.S.C. 551 et seq.). On Previous Federal Actions has a strong influence on the hydrologic September 30, 2003, the Court ruled that characteristics of the marl prairies. On March 11, 1967 (32 FR 4001), the the Service complied with the Act by However, throughout southern Florida, Cape Sable seaside sparrow was issuing the finding (see above), and was including sparrow habitat, hydrologic determined to be ‘‘threatened with exercising reasonable discretion in conditions are also strongly influenced extinction,’’ and was conferred postponing developing a proposed rule by water management actions. A protection under the Endangered to revise critical habitat (Biodiversity complex system of canals, levees, Species Preservation Act (Pub. L. 89– Legal Foundation v. Norton, 285 F. pumps, and other water management 669). The Cape Sable seaside sparrow Supp. 2d (D.D.C. 2003)). However, it structures, operated by complex was subsequently added to the list of ordered the Service to specify a date on operational rules, can have profound species protected under the Endangered which we would begin work on a rule impacts on the hydrologic conditions Species Conservation Act of 1969 (Pub. to revise critical habitat for the Cape throughout much of the remaining marl L. 91–135), and all species listed on the Sable seaside sparrow and estimate how prairies (Johnson et al. 1988, p. 31; Van Conservation Act were adopted by the long the process would take. On Lent and Johnson 1993, pp. 4–7; Pimm Act in 1973 and assigned to endangered November 28, 2003, the Service notified et al. 2002, p. 106). status. Critical habitat was designated the Court that a proposed rule to revise The interaction of fire and flooding for the Cape Sable seaside sparrow on the critical habitat would be submitted also strongly influences the suitability August 11, 1977 (42 FR 40685) and was to the Federal Register by October 24, of habitat for sparrows. In the most corrected on September 22, 1977 (42 FR 2006, and a final rule would be extreme case, the vegetation in areas 47840). The 1977 critical habitat completed within 12 months of the that burn and are subsequently flooded designation for Cape Sable seaside publication of the proposed rule. within 1 to 3 weeks after the fire, either sparrow encompasses approximately as a result of a natural rainfall event or 197,260 ac (79,828 ha). The first Critical Habitat human-caused hydrologic changes, may recovery plan for the sparrow was Critical habitat is defined in section 3 not recover for a long period, possibly completed in April 1983. A revised of the Act as: (i) The specific areas 10 years or more (Ross 2006). recovery plan for the sparrow was within the geographical area occupied Alternatively, if water levels overtop the finalized in May 1999. On August 26, by a species at the time it is listed in sprouting grasses, the grasses may die, 1999, Sidney Maddock, Biodiversity accordance with the Act, on which are resulting in an absence of vegetation. Legal Foundation, submitted a petition found those physical or biological Recovery of vegetation from these to the Service, on behalf of himself, the features (I) essential to the conservation circumstances has to result from seed Biodiversity Legal Foundation, the of the species and (II) that may require germination, which requires a much Florida Biodiversity Project, Brian special management considerations or

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protection; and (ii) specific areas Treasury and General Government conservation planning efforts if new outside the geographical area occupied Appropriations Act for Fiscal Year 2001 information available to these planning by a species at the time it is listed, upon (Pub. L. 106–554; H.R. 5658) and the efforts calls for a different outcome. a determination that such areas are associated Information Quality Methods essential for the conservation of the Guidelines issued by the Service, species. Conservation, as defined under provide criteria, establish procedures, As required by section 4(b) of the Act, section 3 of the Act, means to use and and provide guidance to ensure that we used the best scientific data the use of all methods and procedures decisions made by the Service represent available in determining areas that that are necessary to bring any the best scientific data available. They contain the physical and biological endangered or threatened species to the require Service biologists to the extent features that are essential to the point at which the measures provided consistent with the Act and with the use conservation of the Cape Sable seaside pursuant to the Act are no longer of the best scientific data available, to sparrow and other areas that are necessary. use primary and original sources of essential to the conservation of the Critical habitat receives protection information as the basis for sparrow. We reviewed all available under section 7 of the Act through the recommendations to designate critical published and unpublished literature prohibition against destruction or habitat. When determining which areas about the ecology of the sparrow, adverse modification of critical habitat are critical habitat, a primary source of including the 1999 petition and with regard to actions carried out, information is generally the listing supporting information provided with funded, or authorized by a Federal package for the species. Additional it. We reviewed the revised recovery agency. Section 7 requires consultation information sources include the plan (Service 1999a) for the sparrow, as on Federal actions that are likely to recovery plan for the species, articles in well as the previous recovery plan result in the destruction or adverse peer-reviewed journals, conservation (Service 1983). We evaluated modification of critical habitat. The plans developed by States and counties, management plans that address specific designation of critical habitat does not scientific status surveys and studies, management needs of sparrows and affect land ownership or establish a biological assessments, or other their habitats and past section 7 refuge, wilderness, reserve, preserve, or unpublished materials and expert consultations that addressed the needs other conservation area. Such opinion or personal knowledge. All of the sparrow, including the 1999 designation does not allow government information is used in accordance with jeopardy biological opinion on Test 7 of or public access to private lands. the provisions of Section 515 of the the Experimental Program of Water To be included in a critical habitat Treasury and General Government Deliveries (Service 1999b), and the designation, the habitat within the area Appropriations Act for Fiscal Year 2001 reasonable and prudent measures that occupied by the species must first have (Pub. L. 106–554; H.R. 5658) and the were implemented as a result of the features that are essential to the associated Information Quality biological opinion. We reviewed reports conservation of the species. Critical Guidelines issued by the Service. received from section 7 consultations habitat designations identify, to the Section 4 of the Act requires that we and from researchers who hold section extent known using the best scientific designate critical habitat on the basis of 10(a)(1)(A) research permits. We data available, habitat areas that provide the best scientific data available. Habitat reviewed past records of sparrow essential life cycle needs of the species is often dynamic, and species may move occurrence, distribution, and habitat use (i.e., areas on which are found the from one area to another over time. over time that were compiled by Florida primary constituent elements (PCEs), as Furthermore, we recognize that Fish and Wildlife Conservation defined at 50 CFR 424.12(b)). designation of critical habitat may not Commission (FWC) personnel, National Habitat occupied at the time of listing include all of the habitat areas that may Park Service (NPS) personnel, and may be included in critical habitat only eventually be determined to be independent researchers contracted by if the essential features thereon may necessary for the recovery of the the Service and the NPS. We obtained require special management or species. For these reasons, critical spatial information on the location of protection. Thus, we do not include habitat designations do not signal that sparrow occurrences recorded on areas where existing management is habitat outside the designation is surveys from 1981 to present and spatial sufficient to conserve the species. [As unimportant or may not be required for data that reflect vegetation type, fire discussed below, such areas may also be recovery. history, and hydrologic conditions excluded from critical habitat under Areas that support populations, but within these areas. These data were section 4(b)(2) of the Act.] Furthermore, are outside the critical habitat entered into a geographic information when the best available scientific data designation, will continue to be subject system (GIS) for analysis. We reviewed do not demonstrate that the to conservation actions implemented information resulting from hydrologic conservation needs of the species under section 7(a)(1) of the Act and to modeling of several water management require additional areas, we will not the regulatory protections afforded by regimes that have been implemented in designate critical habitat in areas the section 7(a)(2) jeopardy standard, as the region. We also evaluated the outside the geographical area occupied determined on the basis of the best conclusions and recommendations that by the species at the time of listing. available information at the time of the resulted from an independent peer However, an area that was not known to action. Federally funded or permitted review of the science related to be occupied at the time of listing but is projects affecting listed species outside sparrows and their management that currently occupied by the species will their designated critical habitat areas was conducted by the American likely be essential to the conservation of may still result in jeopardy findings in Ornithologists’ Union in 1999 (Walters the species and, therefore, typically some cases. Similarly, critical habitat et al. 2000), and the recommendations included in the critical habitat designations made on the basis of the and conclusions of the 2003 South designation. best available information at the time of Florida Ecosystem Restoration Multi- The Service’s Policy on Information designation will not control the species Avian Workshop (SEI 2003), Standards Under the Act, published in direction and substance of future which was held to develop a common the Federal Register on July 1, 1994 (59 recovery plans, habitat conservation understanding of how four avian FR 34271), and Section 515 of the plans (HCP), or other species species, including the Cape Sable

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seaside sparrow, would respond to count survey method, which is a consequently provides a robust Everglades restoration. standard method for passerine birds. assessment of sparrow habitat. We have also reviewed available Surveys are conducted each year during We believe the method we have used information on the habitat requirements the peak of sparrow breeding season. to delineate critical habitat encapsulates of this species. In determining PCEs, we Details of the survey are described in the habitat that is important over time reviewed all available published and Pimm et al. 2002. An array of survey for all aspects of the sparrow’s life unpublished literature on the ecology, points has been established across all history, accounting for the degree of habitat needs, and factors limiting the potential sparrow habitats with survey natural variability in environmental and sparrow’s occurrence and distribution, points arranged on a grid. Because the habitat conditions that occur within the including information in published, survey area covers an expanse of area Everglades. peer-reviewed journal articles; that does not contain roads or trails, Primary Constituent Elements unpublished reports and theses; and observers are dropped off at survey preliminary results from ongoing points from a helicopter. The helicopter In accordance with section 3(5)(A)(i) research. departs the area prior to the count of the Act and regulations at 50 CFR The original critical habitat initiating. An observer records all 424.12, in determining which areas to designation (August 11, 1977, 42 FR sparrows heard or seen at the point propose as critical habitat, we consider 40685; corrected September 22, 1977, 42 during a 7-minute period. The great within areas occupied by the species at FR 47840) was evaluated thoroughly majority of sparrow detections consist of the time of listing those physical and during our analysis. However, the 1977 territorial males. Following the biological features that are essential to rule did not include the specific criteria completion of the count, the helicopter the conservation of the species (PCEs), used to delineate the boundaries of the returns to transport the observer to the and that may require special original designation and did not identify next survey point. Each survey point is management considerations and any PCEs. Therefore, for this proposed visited once per season. protection. These include, but are not rule, we chose to begin our analysis by Because survey points are arranged on limited to, space for individual and considering historic habitat available to a 0.6-mi (1-km) grid and sparrows may population growth and for normal the species and habitat areas that only be detected accurately within 656 behavior; food, water, air, light, support or have recently supported ft (200 m) of a survey point (Pimm et al. minerals, or other nutritional or sparrows. All historical and recent 2002, p. 153), some areas between physiological requirements; cover or locations of sparrow occurrences were survey points remain unsurveyed. We shelter; sites for breeding, reproduction, mapped to better delineate sparrow used a 2,460-ft (750-m) radius around and rearing (or development) of habitat. Current and historical habitat each sparrow occurrence to account for offspring; and habitats that are protected data from several sources were also unsurveyed areas adjacent to or between from disturbance or are representative of evaluated to identify areas outside of the the survey points where sparrows likely the historic geographical and ecological known occupied range of the Cape Sable occurred. The 2,460-ft (750-m) radius distributions of a species. seaside sparrow that may support distance is approximately half of the The following information provides sparrows or have the potential to distance between diagonally adjacent the justification and background for the support sparrows. However, while survey points. In addition, this distance PCEs for the Cape Sable seaside sparrow historical habitat maps identified is slightly larger than the sum of the as they are defined at the end of the several areas outside of the known reliable sparrow detection distance from Primary Constituent Elements section. occupied range where sparrows may a point (200 m) plus the diameter of an Space for Individual and Population have occurred historically, these areas average non-breeding season sparrow Growth and Normal Behavior (Open no longer contain habitat features that home range (465 m, assuming a circular Contiguous Habitat) would support sparrows. Therefore, we home range based on home range sizes do not propose as revised critical habitat in Dean and Morrison 2001, p. 36). This Sparrow subpopulations require large any areas outside the geographical areas distance consequently represents an patches of contiguous open habitat presently occupied by the species. For estimate of the area of habitat that (approximately 4,000 ac/1,619 ha or the purpose of this rule, areas presently sparrows detected at a point are likely larger). The minimum area required to occupied are those where sparrows have to use. support a population has not been been recorded between 1981 and the We drew a boundary that specifically determined, but the smallest present. We are not proposing to encompassed the 750-m radius around area that has remained occupied by designate critical habitat on Cape Sable, sparrow locations but also took into Cape Sable seaside sparrows for an in the Ochopee area, or in agricultural account the particular habitat extended period is this size. Individual areas in the vicinity of Homestead characteristics as determined through sparrows are area-sensitive and where sparrows previously occurred. detailed inspection of satellite imagery, generally avoid the edges where other After considering these habitat areas, aerial photography, and habitat maps. habitat types meet the marl prairies. our efforts focused on identifying those Outlying sparrow occurrences that were They will only occupy small patches areas occupied at the time of listing that recorded in only one year and were not (less than 100 ac; 40.5 ha) of marl contain the physical and biological adjacent to other recorded sparrow prairie vegetation when the patches features essential to the conservation of observations were excluded. Areas occur within large, expansive areas and Cape Sable seaside sparrows and those along the boundary that did not contain are not close to forested boundaries other areas that are essential to the features essential for the sparrow (such (Dean and Morrison 2001, p. 62–63). conservation of the Cape Sable seaside as tree islands, cypress forest, and deep- Once sparrows establish a breeding sparrow and are presently occupied. To water slough communities) were territory, they exhibit high site fidelity, determine critical habitat boundaries, excluded from the unit. The resulting and each individual sparrow may only we began with comprehensive surveys boundary of each unit encompassed the occupy a small area for the majority of of sparrow habitat conducted from 1981 core areas of habitat that have been its life. Because sparrows are generally to 2006 to identify all survey points occupied by sparrows since 1981. This sedentary and avoid forested areas, they where sparrows have been detected. approach relies on the results of are not likely to travel great distances to Sparrow surveys are based on a point- multiple years of surveys and find mates or to find outlying patches of

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suitable habitat. The occurrence of 2001, p. 54). These non-breeding season al. 2001, p. 278). Even at the nest height, sparrows over time within each of the samples may not be representative of there must be sufficient height and subpopulations shows a centrality in the foods most frequently consumed density of vegetation to cover and which sparrows most consistently occur during that season and may only conceal nests. and are most abundant near the center represent a portion of the items Vegetation must provide sufficient of the patch of habitat in which they ingested. diversity and structure to provide occur. While the sparrow appears to be a foraging opportunities for sparrows. The Within the marl prairies, individual dietary generalist, an important birds must be able to find and capture trees or shrubs greater than 4.9 ft (1.5 m) characteristic of sparrow habitat is its insect prey both during periods when tall at a density greater than or equal to ability to support a diverse array of the ground is dry and when the area is 2.5 per ac (1 per ha), excluding tree insect fauna. In addition, these food inundated. Seeds that are consumed islands composed of native tropical- items must be available to sparrows during the wet season must be gleaned Caribbean species occurring on an both during periods when there is dry from standing vegetation since any elevated substrate, will make the site ground and during extended periods of seeds on the ground are covered by unsuitable. inundation. The specific foraging water and periphyton and are As detailed in the background section, substrates used are unknown, but they inaccessible to sparrows. structure of habitat within the marl probably vary throughout the year in Hydrologic Regime prairie (muhly grasses and little response to hydrologic conditions. overstory) and areas of potential habitat Hydrologic conditions have are also important to sparrows because Sites to Support Foraging, Nesting, and significant effects on sparrows both of the inherent variability in habitat Sheltering directly and indirectly. First, depth of conditions. While there is relatively Sparrows maintain territories that inundation within sparrow habitat is little elevational variation within the support all aspects of their life history directly related to the sparrow’s ability Everglades, differences in elevation as (Werner and Woolfenden 1983, p. 67) to move, forage, nest, and find shelter small as 12 in (30 cm) can result in very and sparrows are completely reliant on and cover from predators and harsh different plant community and habitat the vegetation, like muhly grass, within environmental conditions. At some characteristics. Single rainfall events in their home ranges for foraging, nesting, extreme water levels, such as those that the region can deposit greater than 12 in and sheltering. Vegetation must also be occurred within some areas of sparrow (30 cm) of rain within a short period, sufficient to support them during habitat in October 1995, when water and the variability in elevation and extreme hydrologic conditions. levels were more than 2 ft. (0.6 m) above vegetation characteristics is critical to Favorable vegetation characteristics are ground surface, even the majority of the provide refugia for sparrows under these essential to the sparrow’s survival and vegetation in sparrow habitat is adverse conditions. conservation. completely inundated, leaving sparrows During the dry portion of the year with few refugia. Conditions such as Diet (December to May), when water levels these may result in significant impacts While detailed information about the are near or below ground surface, to sparrow survival, and if they occur diet of sparrows is not known, vegetation must be sufficiently dense to during the breeding season, these water invertebrates comprise the majority of provide cover from potential predators levels will cause flooding and loss of their diet, though sparrows may also like raptors and small mammalian sparrow nests (Nott et al. 1998, p. 31; consume seeds when they are available predators, as well as for concealing Pimm and Bass 2002, p. 416 ). Even (Werner 1975, p. 124; Post and nests. Sparrows most commonly move more moderate water levels, around 6 Greenlaw 1994, p. 5). Howell (1932, p. across the ground’s surface. During the in. (15 cm) above ground surface, may 463) identified the contents of 15 dry portion of the breeding season sufficiently inundate some habitat such sparrow stomachs and found remains (March to May), sparrows build nests that sparrows are incapable of finding primarily of insects and spiders, as well above the ground but relatively low in shelter and moving around within as amphipods, mollusks, and plant the vegetation (6.7 to 7.1 inches (17 to limited areas. These water levels, when matter. Primary prey items that are fed 18 cm) above the ground; Lockwood et they occur during sparrow nesting to nestlings during the breeding season al. 2001, p. 278). season, result in increased rates of nest include grasshoppers (Orthoptera), During the wet portion of the year failure due to depredation (Lockwood et moths and butterflies (Lepidoptera), (June to November), the majority of or al. 1997, p. 724). dragonflies (Odonata), and other the entire ground surface may be The hydrologic regime also affects common large insects (Post and inundated for extended periods. During sparrows indirectly through its effects Greenlaw 1994, p. 5; Lockwood et al. these periods, the vegetation within a on the vegetation community. Persistent 1997, p. 726). Adult sparrows probably sparrow’s home range serves as the increases in hydroperiod may quickly consume mainly the same species substrate for sparrows, and they travel result in changes in vegetation during the nesting season. Sparrows over and through it. Vegetation must be communities from marl prairies or may consume different proportions of sufficiently dense and tall such that it mixed prairies to sawgrass-dominated different species over time and among can support the weight of sparrows as communities resembling sawgrass sites, suggesting that they are dietary they move through it. In addition, it marshes (Nott et al. 1998, p. 30). generalists (Pimm et al. 2002, p. 23). must provide cover and escape refugia Average hydroperiods that extend During the non-breeding season, in the structure of the plants from beyond 210 days per year generally preliminary information from predators. Vegetation must also be result in sawgrass marsh communities evaluation of fecal collections suggests sufficiently dense to support nests (Ross et al. 2006, p. 14). that a variety of small invertebrates, above the water. During the wet portion Conversely, areas that are subjected to including weevils and small mollusks, of the sparrow breeding season (June to short hydroperiods generally have are regularly consumed (Dean and August), sparrows build their nests higher fire frequency than longer- Morrison 2001, p. 54). Evidence of seed higher in the vegetation than during dry hydroperiod areas (Lockwood et al. consumption was only present in four periods, an average of 8.3 in (21 cm) 2003, p. 464; Ross et al. 2006, p. 43), percent of samples (Dean and Morrison above the ground surface (Lockwood et and are readily invaded by woody

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shrubs and trees (Werner 1975, p. 204; history functions of the species, we have of the PCEs necessary to support the Davis et al. 2005, pp. 824–825). Both an determined that the Cape Sable seaside species’ particular use of that habitat. increased incidence of fire and an sparrow’s PCEs consist of: Where a subset of the PCEs is present at increased density and occurrence of (1) Calcitic marl soils characteristic of the time of designation, this rule shrubs detract from the suitability of an the short-hydroperiod freshwater marl protects those PCEs and thus the area as sparrow habitat. prairies of the southern Everglades. conservation function of the habitat. The plant species composition and (2) Herbaceous vegetation that density in the Everglades are largely includes greater than 15 percent Criteria Used To Identify Critical influenced by hydroperiods. combined cover of live and standing Habitat Hydroperiods that range from 60 to 270 dead vegetation of one or more of the We are proposing to designate revised days support the full variety of following species (when measured critical habitat on lands that were vegetation conditions that are generally across an area of greater than 100 feet 2 determined to be occupied at the time suitable for sparrows (Ross et al. 2006, per 30.5 meters 2): Muhly grass of listing and that contain sufficient p. 14), though the vegetation (Muhlenbergia filipes), Florida little PCEs to support life history functions composition and structure may vary bluestem (Schizachyrium rhizomatum), essential to the conservation of Cape significantly within this range. black-topped sedge (Schoenus Sable seaside sparrows. In addition, we nigricans), and cordgrass (Spartina are proposing to designate areas that Soils bakeri). were identified as occupied after listing The soils that underlie sparrow (3) Contiguous open habitat. Sparrow and that we have determined to be habitat are composed almost entirely of subpopulations require large, expansive, essential to the conservation of the calcitic marl. These soils are not rich in contiguous habitat patches with few or sparrow. organic matter and are formed when sparse woody shrubs or trees. An area is considered for designation periphyton mats precipitate calcite (4) Hydrologic regime such that the as critical habitat when it supports some (Davis et al. 2005, p. 825). In areas water depth, as measured from the portion of a subpopulation of Cape where hydroperiods are short, water surface down to the soil surface, Sable seaside sparrow and meets either periphyton mats do not form, and marl does not exceed 7.9 inches (20 cm) of the following criteria: (1) Possesses soil accretion is slow, resulting in during the period from March 15 to one or more of the PCEs and was shallow soils (sometimes less than 0.8 June 30 at a frequency of more than 2 occupied at the time of listing by in. (2 cm)) that do not support dense out of every 10 years. sparrows, or (2) is determined to be plant growth. The vegetation The above PCEs describe: (1) Soils currently occupied by the Cape Sable community within the marl prairies is that are widespread in the Everglades seaside sparrow through annual surveys uniquely associated with marl soils short-hydroperiod marshes and support conducted during the period 1981 to (Davis et al. 2005, p. 825) and does not the vegetation types that the sparrows present and is essential to the occur on other soil series, though rely on; (2) plant species that are conservation of the species. Those areas individual plant species that occur in characteristic of sparrow habitat in a where sparrows were recorded from marl prairies may occur in other variety of hydrologic conditions, that 1981 to present represent the areas that conditions. provide structure sufficient to support we are considering to be currently The short hydroperiods within these sparrow nests, and that comprise the occupied. communities also result in substrate that sparrows utilize when Following the strategy outlined above, oxidation of organic matter or there is standing water; (3) contiguous we began with records of sparrow consumption of organic matter during open habitat because sparrows require occurrence recorded from fires. Sawgrass marsh plant large, expansive, contiguous habitat comprehensive surveys conducted from communities may become established in patches with sparse woody shrubs or 1981 to 2006 and identified all survey areas with longer hydroperiods that trees; (4) hydrologic conditions that points where sparrows had been usually contain organic peat soils that would prevent flooding sparrow nests, detected. These areas have consistently dry less frequently than marl prairies maintain hospitable conditions for supported the core of the current (Ross et al. 2006, p. 10; Ogden 2005, sparrows occupying these areas, and sparrow subpopulations over a variety p. 813). Marl soils, and particularly generally support the vegetation species of conditions. In the variable deeper marl soils formed through that are essential to sparrows; and (5) environment of the Everglades continuous deposition of calcitic overall, the habitat features that support wetlands, the size and distribution of sediments from periphyton, support the the invertebrate prey base the sparrows the sparrow subpopulations may change density and diversity of plant species rely on and the variability and in response to environmental upon which sparrows rely. While uniqueness of habitat that provides, for conditions, fires, and other factors. In similar vegetation may occasionally example, periphyton mats for sparrows addition, the vegetation within these occur over peat soils with a surficial to survive in the southern Everglades. units may change in response to varying periphyton layer, these areas may not This proposed designation is designed environmental conditions. These unit support sparrow habitat in the long term for the conservation of those areas boundaries were delineated to provide because they may tend to succeed containing PCEs necessary to support sufficient area such that these toward sawgrass marsh vegetation under the life history functions that were the subpopulations may continue to persist, long hydroperiods, or they may be basis for the proposal. Because not all even when taking into account some significantly altered when fires consume life history functions require all the degree of vegetation change and changes underlying peats during dry conditions. PCEs, not all proposed critical habitat in population size that may occur under will contain all the PCEs. adverse conditions. Primary Constituent Elements for the Units are designated based on Sparrow surveys were conducted in Cape Sable Seaside Sparrow sufficient PCEs being present to support 1981 and each year from 1992 through Based on the above discussion of the one or more of the species’ life history present, but every survey point was not life history, biology, and ecology of the functions. Some units contain all PCEs necessarily surveyed in every year. In species and the requirements of the and support multiple life processes, addition, surveys cannot confirm the habitat to sustain the essential life while some units contain only a portion absence of sparrows from a survey

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point. To address the tendency to this proposed rule developed areas such protection include: measures to prevent underestimate the occurrence and as buildings, paved areas, and other damaging hydrologic conditions, control distribution of sparrows that results structures that lack PCEs for the Cape of invasive exotic plant species, and from incomplete surveys and inability Sable seaside sparrow. The scale of the measures to prevent anthropogenic fires to reliably determine absence of maps prepared under the parameters for from spreading through Cape Sable sparrows, a survey point was considered publication within the Code of Federal seaside sparrow habitat. to be occupied if a sparrow was Regulations may not reflect the Proposed Critical Habitat Designation recorded in at least one year during the exclusion of such developed areas. Any period from 1981 to 2006. such structures and the land under them We are proposing seven units as The criteria we employed to delineate inadvertently left inside critical habitat revised critical habitat for the Cape the boundaries consistently encompass boundaries shown on the maps of this Sable seaside sparrow. The critical the areas where sparrows have occurred, proposed rule have been excluded by habitat units described below constitute despite the fact that sparrows may not text in the proposed rule and are not our best assessment, at this time, of the occur at every point within unit proposed for designation as critical areas determined to be occupied at the boundaries in every year. All habitat. Therefore, Federal actions time of listing, that contain one or more subpopulations where sparrows limited to these areas would not trigger of the PCEs, and that may require currently occur were included in unit section 7 consultation, unless they affect special management; and those boundaries because flooding and the the species or PCEs in adjacent critical additional areas that were not occupied risk resulting from large fires (Lockwood habitat. at the time of listing but were found to et al. 2003, p. 467) makes, over time, Section 10(a)(1)(B) of the Act be essential to the conservation of the several entire units unsuitable for authorizes us to issue permits for the Cape Sable seaside sparrow. We sparrows for extended periods. When take of listed species incidental to consider all units as currently occupied. this occurs, maintaining suitable habitat otherwise lawful activities. An The area proposed for designation as that supports sparrows in other incidental take permit application must revised critical habitat differs subpopulations is essential to ensure be supported by an HCP that identifies significantly from the original 1977 that the impacted units could be conservation measures that the designation. The critical habitat repopulated through immigration or permittee agrees to implement to boundaries in the 1977 designation were through active management. minimize and mitigate the impacts on based on section-township-range This proposed revised designation the species by the requested incidental boundaries, and only delineated does not include all of the historical take. We often exclude non-Federal relatively large, general areas within habitat areas that were occupied by the public lands and private lands that are which sparrows were known to occur at Cape Sable seaside sparrow. However, it covered by an existing operative HCP that time. Consequently, many areas includes the majority of the remaining and executed implementation originally designated were never Cape freshwater marl prairies that currently agreement under section 10(a)(1)(B) of Sable seaside sparrow habitat, such as support the sparrow population and the Act from designated critical habitat forested areas of Long Pine Key in portions of the Spartina marshes that because the benefits of exclusion Everglades National Park, dwarf cypress support sparrows and reflects the outweigh the benefits of inclusion as forests (also Everglades National Park), communities that were historically discussed in section 4(b)(2) of the Act. deep water slough communities, and occupied by the sparrow throughout its There are no areas within the proposed agricultural areas. These areas, range. Such areas as dense sawgrass revised critical habitat boundaries for therefore, are not being proposed for marshes, pine or cypress forests, and the Cape Sable seaside sparrow that inclusion in the revised critical habitat mangroves are not included in this have HCPs. The units represent mostly designation, and we have instead sought proposed revised designation. We Federal and some State land. We will to accurately delineate only the specific conducted field reconnaissance of some consider the economic impacts of this areas that were important to sparrows in portions of the units and eliminated proposal, and may exclude some the proposed revision. Two of the seven highly degraded sites, isolated portion based on the results of this critical habitat units in the proposed fragments of potential habitat that were analysis (see Economic Analysis designation have been added since the unlikely to contribute to the section). original designation, based on an maintenance of the sparrow improved understanding of sparrow subpopulations, and areas where Special Management Considerations or distribution and important sparrow mangroves have recently encroached Protection habitat characteristics that has been into marl prairie vegetation or where When designating critical habitat, we developed since the 1977 designation. cypress trees are present, but not visible assess whether the areas determined to For further information on the changes on aerial photographs. We believe the be occupied at the time of listing from the original designation, see the seven remaining, currently occupied contain the PCEs and may require descriptions of the individual units areas presently contain essential habitat special management considerations or below. features or are essential to the protection. As discussed here and below The seven units proposed for conservation of the Cape Sable seaside within the unit descriptions, we find designation as Cape Sable seaside sparrow and, therefore, we are that all of the PCEs in the areas of sparrow critical habitat are: (1) Marl proposing as revised critical habitat proposed revised critical habitat prairie habitats that support the main units for the sparrow. These seven units determined to be occupied at time of the portion of sparrow subpopulation A in total would result in an overall Cape Sable seaside sparrow’s listing within ENP and Big Cypress National reduction of 40,918 ac (16,560 ha) in the (Units 1 and 2) may require special Preserve (BCNP) that lie on the western total critical habitat acreage compared to management considerations or side of ; (2) brackish the original critical habitat designation. protection due to threats to the species cordgrass marshes and freshwater marl When determining proposed critical or its habitat (so do Units 3 through 7, prairies that support a portion of habitat boundaries, we made every although this finding is not necessary to sparrow subpopulation A within ENP effort to avoid including within the propose them as critical habitat). Such and BCNP in the region known as the boundaries of the map contained within management considerations or Stairsteps (for its jagged park boundary),

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lying in the strip of prairie habitat eastern boundary in the vicinity of prairies that support sparrow between the coastal mangroves and the Taylor Slough; (5) marl prairie habitats subpopulation F within the northern cypress forests of BCNP; (3) marl prairie that support sparrow subpopulation D portion of ENP along its eastern habitats that support sparrow within ENP and the State-owned boundary and lying to the east of Shark subpopulation B and lie exclusively Southern Glades Wildlife and River Slough. Table 1 provides the area within ENP in the vicinity of the Main Environmental Area to the east of Taylor by unit determined to meet the Park Road, between Shark River Slough Slough; (6) marl prairie habitats that definition of critical habitat for the Cape and Taylor Slough; (4) marl prairie support sparrow subpopulation E Sable seaside sparrow. habitat that supports sparrow within ENP, along the eastern edge of subpopulation C within ENP along its Shark River Slough; and (7) marl

TABLE 1.—CRITICAL HABITAT UNITS PROPOSED FOR THE CAPE SABLE SEASIDE SPARROW [Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas without PCEs.]

Federal acres State acres Total acres Critical habitat unit (hectares) (hectares) (hectares)

1. Unit 1—subpopulation A marl prairies ...... 59,892 (24,237) 0 59,892 (24,237) 2. Unit 2—subpopulation A cordgrass marsh ...... 11,402 (4,614) 0 11,402 (4,614) 3. Unit 3—subpopulation B ...... 39,053 (15,804) 0 39,053 (15,804) 4. Unit 4—subpopulation C ...... 8,059 (3,261) 0 8,059 (3,261) 5. Unit 5—subpopulation D ...... 833 (337) 9,867 (3,993) 10,700 (4,330) 6. Unit 6—subpopulation E ...... 22,278 (9,016) 0 22,278 (9,016) 7. Unit 7—subpopulation F ...... 4,958 (2,006) 0 4,958 (2,006)

Total ...... 146,475 (59,275) 9,867 (3,993) 156,342 (63,268)

Below, we provide a brief description unit to be occupied at the time of the supported the vegetation species and rationale for each proposed unit of Cape Sable seaside sparrow’s listing. composition and structure that sparrows revised critical habitat for the Cape This area contains habitat features require. Sable seaside sparrow. (one or more of the PCEs) that are From 1993 to 1995, the sparrow essential to the conservation of the Unit 1: Subpopulation A Marl Prairies population in this area declined sparrow. It is the largest remaining precipitously, from an estimated 2,608 Unit 1 consists of 59,842 ac (24,237 contiguous patch of marl prairie habitat individuals in 1992 to 240 individuals ha) of freshwater marl prairie. The and has the potential to support a large in 1995 (Pimm et al. 2002, p. 70). This boundary of the proposed unit overlaps population of sparrows similar to counts decline apparently resulted from the boundary of BCNP and ENP. Of the taken in prior surveys in the 1980s and hydrologic management within the area total acreage, 31,292 ac (12,663 ha) are 1990s. A 1999 review of sparrow immediately upstream of the area, just within ENP, and 28,600 ac (11,574 ha) biology conducted by the American north of ENP. During these years, the are within BCNP. The proposed unit is Ornithologists’ Union concluded that sparrow habitat remained flooded for entirely outside of currently designated the best available means to reduce the extended periods, sometimes deeply critical habitat. risk of extinction of the sparrow is to flooded. Since then, measures have been retain and recover sparrow implemented by the U.S. Army Corps of This unit was first determined to subpopulation A (Walters et al. 2000, p. Engineers and South Florida Water support sparrows in the mid-1950s 1111). Management District water managers to (Stimson 1956, p. 496), and at that time The unit’s spatial separation from the prevent further damage to the sparrow sparrows were widely distributed across other areas occupied by sparrows subpopulation in the area resulting from much of the marl prairies. Their increases its significance to the species. excessive water levels and duration of occurrence within the area was not It is the only area west of Shark River inundation, but the subpopulation has monitored continuously over time, but Slough that can support a large sparrow not recovered. Water management plans intermittent surveys indicated their subpopulation. Its distance from other continue to have the potential to result continuous presence in the area. sparrow subpopulations and the in damage to sparrow habitat in these Surveys in 1968, near the time of the intervening slough make it unlikely to areas, and special management of sparrow’s listing, indicated that be affected by any large fire that impacts hydrologic conditions is necessary. extensive fires had reduced the number the subpopulations east of Shark River Special management may also be of sparrows in the area significantly Slough, and less likely to be subjected needed to restore more favorable (Stimson 1968, p. 867), though they to any local detrimental hydrologic vegetation conditions within this unit. likely continued to occur scattered conditions that may affect the eastern throughout the area within unburned Unit 2: Subpopulation A Cordgrass subpopulations, either as a result of Marshes patches (Werner 1975, p. 30). Since that hydrologic management or time, the sparrow population in the area meteorological events. Conversely, its Unit 2 consists of 11,402 ac (4,614 ha) increased, and in the first separation from other subpopulations of mixed cordgrass marsh and comprehensive survey of potential reduces the likelihood that it would be freshwater marl prairies within the sparrow habitat in 1981, the area was recolonized if local extirpation were to coastal prairies between the mangrove found to support a larger number of occur (Walters et al. 2000, p. 1110). zone and the cypress forests in the sparrows than any other subpopulation While the vegetation within portions of vicinity of BCNP in the Stairsteps (Kushlan and Bass 1983, p. 144). Based the habitat has been impacted by fires region. Of the total acreage within this on this information, we consider this and flooding, it has consistently unit, 6,004 ac (2,430 ha) are within

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BCNP, and the remaining 5,398 ac , on the west by the sawgrass southward flow of water across this area (2,184 ha) are within ENP. The marshes and deepwater slough such that the primary influences on proposed unit is entirely outside of communities of Shark River Slough, on water levels are rainfall and overflow currently designated critical habitat. the north by the pine rockland from the flanking sloughs. In addition, This unit was first determined to vegetation communities that occur portions of the area occur on relatively support sparrows in the mid-1950s within ENP on Long Pine Key, and on high elevations and remain relatively (Stimson 1956, p. 498), and at that time, the east by the sawgrass marshes and dry. Consequently, this area is not easily sparrows were distributed through deepwater slough vegetation community flooded as a result of managed water much of the coastal marshes from Shark of Taylor Slough. There is a continuous releases or upstream events, and the River Slough to the northwest to elevational gradient across the site, from high water levels that may occur within Ochopee. Their occurrence within the the high elevations of the pine other sparrow subpopulations are area was not monitored regularly over rocklands north of the unit down to the dampened by its relative position and time, but intermittent surveys indicated mangroves in the south. The area is topographic characteristics. their continuous presence in the area. bisected by the Main Park Road, which Similarly, the area is not particularly Surveys in 1968, near the time of the serves as the primary public access vulnerable to fires. It is not overdrained sparrow’s listing, indicated that fires route from Homestead to Florida Bay. It as a result of local hydrologic that occurred in 1962 had reduced the is also bisected by the Old Ingraham management actions, and the fire number of sparrows in the area (Stimson Highway, which is an abandoned and frequency is primarily influenced by 1968, p. 867), though they likely partially restored roadway that natural ignition and managed prescribed continued to occur throughout the area historically provided access from fire. The public road that traverses the within unburned patches (Werner 1975, Homestead to the Bay. Much of the area could result in an increased p. 30). Based on this information, we western portion of this roadway was likelihood of ignitions, but this has not consider this unit to be occupied at the removed and restored to grade, but the occurred to date. In addition, the time of the Cape Sable seaside sparrow’s eastern portions of the road, with its presence of both the Main Park Road listing. associated borrow canal and woody and the Old Ingraham Highway within This area contains habitat features vegetation, interrupt the contiguity of this unit provides human access greater (one or more of the PCEs) that are the prairies within the eastern portion of than in any other unit and may allow essential for the conservation of the this unit. Besides the road, borrow better opportunities to manage both sparrow. It is the only remaining large canal, and woody vegetation, which are prescribed fires and wildfires such that area of suitable habitat within the not critical habitat, the area consists of they would pose a reduced risk to the cordgrass marsh—marl prairie one large, contiguous expanse of marl persistence of the sparrow transitional zone that sparrows prairie that contains the PCEs for the subpopulation. historically occupied. Since the 1981 sparrow. Unit 4: Subpopulation C surveys, the area has not supported This unit was not known to be large numbers of sparrows (Pimm et al. occupied at the time the sparrow was Unit 4 consists of 8,059 ac (3,261 ha) 2002, p. 70), but it has not been listed in 1967, but sparrows were of marl prairie habitat that lies regularly surveyed. Because the documented in this area in 1974 to 1975 exclusively within ENP in the vicinity vegetation in this area differs from that (Werner 1975, p. 32). Consequently, we of Taylor Slough, along the eastern edge in the remainder of the proposed critical consider the unit to be unoccupied at of ENP. The proposed unit lies entirely habitat, its condition and suitability is the time of listing. However, when within the currently designated critical influenced by a different set of factors sparrows were first recorded in the area habitat. than in other units. The area is during 1974 to 1975 surveys, they were The unit consists of the prairies that considered to be a portion of sparrow abundant and widespread (Werner flank both sides of the relatively narrow subpopulation A, but it is relatively 1975, pp. 32–33) and almost certainly Taylor Slough. The area is bordered by isolated from the rest of the area occurred in the area prior to their the pine rocklands of Long Pine Key on supporting this subpopulation. This discovery. This area was included in the the west and by isolated pine rocklands area may serve as a refugium for some 1977 critical habitat designation for the and the L–31 W canal that runs along sparrows and a source of birds for sparrow (42 FR 40685 and 42 FR 47840). the ENP boundary to the east. It is recolonization of the remainder of The area is essential to the bordered by an area of constriction in subpopulation A if large portions of the conservation of the sparrow because it Taylor Slough that is closely flanked on area were to be affected by large fires or is the largest contiguous patch of marl both sides by forested habitats at the damaging hydrologic conditions. prairie east of Shark River Slough. It is southern end and by the Rocky Glades, Mangrove and shrub encroachment currently occupied, and has consistently a region of thin marl soils and exposed has occurred in some portions of the supported the largest sparrow limestone and sparse vegetation (ENP coastal prairie habitats, and this area subpopulation since 1992 (Pimm et al. 2005, p. 4), to the north. The area is may require special management 2002, p. 70; Pimm and Bass 2006, p. 16). bisected by Main Park Road in the consideration (see Special Management The natural characteristics of this area southern portion of the unit, but the Considerations and Protection section make it relatively immune to risk of remainder of the unit consists of above). flooding or frequent fires (Walters et al. contiguous marl prairies. 2000, p. 1110). Its location south of the This area was not known to be Unit 3: Subpopulation B high-elevation pine rocklands provides occupied at the time of listing in 1967, Unit 3 consists of 39,053 ac (15,804 it a degree of protection from high water but sparrows were discovered in the ha) of marl prairie and lies exclusively levels that does not occur within any area in 1972 (Ogden 1972, p. 852). We within ENP. The majority of the other units. Within the southern portion are consequently considering the unit to proposed unit lies within currently of the greater Everglades watershed, be unoccupied at the time of listing. At designated critical habitat. The unit is water flows from north to south, with the time of discovery, sparrows were bounded on the south by the long- most water moving through Shark River found to be widely distributed and hydroperiod Eleocharis-dominated wet Slough, and to a lesser extent through abundant in this area (Werner 1975, p. prairie and mangrove zone just inland of Taylor Slough. The pinelands block the 32), and it was likely occupied for many

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years prior to its discovery. Following experiences hydrologic conditions that This area is essential for the its discovery, the site was the location are compatible with sparrows (one or conservation of the sparrow because it of some of the first intensive study of more of the PCEs). This area remains is the easternmost area where sparrows the sparrow’s biology and its heavily influenced by hydrologic occur and is the only subpopulation that relationship to its habitat (Werner 1975, management along the eastern boundary occurs on the eastern side of Taylor p. 17). This area was included in the of ENP (ENP 2005, p. 17–18). Portions Slough. It is consequently unlikely to be 1977 critical habitat designation for the of the area are also overdrained, affected by the same factors (e.g., large sparrow (42 FR 40685 and 42 FR 47840). resulting in the possibility of high fire fires or extreme hydrologic conditions) During the mid-1970s, sparrows were frequency. that affect the other eastern abundant at this site (Werner 1975, p. The location of this unit relative to subpopulations that lie primarily 32), and surveys in 1981 estimated 432 other sparrow subpopulations is also between Shark River Slough and Taylor sparrows in this area (Pimm et al. 2002, significant in that it occurs in the center Slough. Loss of suitable habitat and the p. 70). Since 1981, the sparrow of the five sparrow subpopulations that sparrow subpopulation within this area subpopulation at this site has declined occur east of Shark River Slough in the would also result in a reduction in the and has ranged from zero to 144 vicinity of Taylor Slough geographic range of the sparrow. sparrows between 1995 and the present (subpopulations B through F). The The 1981 comprehensive survey of (Pimm et al. 2002, p. 70; Pimm and Bass habitat in this area probably plays an potential sparrow habitat estimated 400 2006, p. 16). When sparrows were important role in supporting dispersal sparrows within this region (Pimm et al. abundant in the area, the area was in a among the eastern subpopulations, 2002, p. 70). This was higher than any relatively dry condition, and water acting as a ‘‘hub’’ that facilitates number of sparrows recorded in the area levels only rose above ground level for dispersal in the region and in recent years, and estimates have limited periods. Beginning in 1980, a recolonization of local areas that are ranged from zero to 112 sparrows pump station, which was installed along detrimentally impacted. between 1992 and the present (Pimm et the eastern boundary of ENP at the al. 2002, p. 70; Pimm and Bass 2006, p. Unit 5: Subpopulation D approximate location of the historic 16). The area currently contains all slough, was operated to increase Unit 5 consists of 10,700 ac (4,330 ha) PCEs, but the majority of the area is hydroperiods in the area resulting in of marl prairie vegetation in an area that dominated by sawgrass, which indicates extended hydroperiods within the lies on the eastern side of the lower a wetter-than-average condition within portions of the area downstream from portion of Taylor Slough. A portion of the spectrum of conditions that support the pumping station (ENP 2005, p. 39). the proposed unit is within currently marl prairie and sparrow habitat (Ross Vegetation changed in this area from designated critical habitat. et al. 2006, p. 16). The habitat in this marl prairie to sawgrass marsh (ENP The majority of this area (9,867 ac; area is divided by several canals that are 2005, pp. 3–40), and sparrows ceased to 3,993 ha) is within the Southern Glades part of the C–111 basin. This canal occur in this area. At the same time, the Wildlife and Environmental Area, system results in relatively altered northern portions of sparrow which is jointly managed by the South hydrologic conditions in the region subpopulation C, above the pump Florida Water Management District and (ENP 2005, p. 18) and causes extended station, continued to be overdrained as the FWC. The remaining 883 ac (337 ha) hydroperiods during wet periods (Pimm a result of the adjacent canal and a occurs within the boundary of ENP. The et al. 2002, p. 78). These factors lowered water table in the agricultural area is bordered on the south by the influencing hydrologic conditions will lands immediately adjacent to ENP long-hydroperiod Eleocharis vegetation continue to require management in the (Johnson et al. 1988, pp. 30–31; ENP and mangroves that flank Florida Bay, future. 2005, p. 53). In these overdrained areas, on the west by the sawgrass marshes Unit 6: Subpopulation E frequent fires impacted the habitat and and deep-water vegetation of Taylor resulted in reduced sparrow numbers Slough, on the east by longer- Unit 6 consists of 22,278 ac (9,016 ha) (Pimm et al. 2002, p. 77). hydroperiod Eleocharis vegetation and of marl prairie habitat in an area that This area is essential for the overdrained areas with shrub lies along the eastern margin of Shark conservation of the sparrow because it encroachment in the vicinity of U.S. River Slough. This unit occurs entirely provides a contiguous expanse of Highway 1, and on the north by within ENP, and the majority of the habitat that is largely separated from agricultural lands and development in proposed unit is within currently other nearby subpopulations in an area the vicinity of Homestead and Florida designated critical habitat. The area is that is uniquely influenced by City. bordered to the south by the pine hydrologic characteristics. The Taylor Similar to the other eastern rocklands of Long Pine Key and by an Slough basin is a relatively small subpopulations, sparrows were not area dominated by dwarf cypress trees. system, and much of the headwaters of known to occur in this area at the time The sawgrass marshes and deepwater the Slough are cut off by canals and of listing in 1967, but were discovered slough vegetation communities of Shark agricultural development to the east of during surveys from 1972 to 1975 River Slough comprise the western and ENP. Portions of this unit near the (Werner 1975, p. 32). We consequently northern boundary of the area, and the slough have deep soils (15.7 in (40 cm)) consider this proposed unit to be Rocky Glades comprise the eastern (Taylor 1983, pp. 151–152) and support unoccupied at the time of listing. boundary. resilient vegetation that responds However, when sparrows were Similar to the other eastern rapidly following fire (Taylor 1983, p. discovered in this area, they were subpopulations, sparrows were not 151–152; Werner and Woolfenden 1983, widespread (Werner 1975, p. 32), known to occur in this area at the time p. 62). Sparrows were reported to suggesting that they had occurred in this of listing in 1967, but were discovered reoccupy burned sites in this region region for a long period prior to their during surveys from 1972 to 1975 within 1 to 2 years following fire discovery. A portion of this area, (Werner 1975, p. 32). We consequently (Werner and Woolfenden 1983, p. 62). including both Federal- and State- consider this proposed unit to be The unit contains the vegetation owned lands was included in the 1977 unoccupied at the time of listing. characteristics upon which sparrows critical habitat designation for the However, when sparrows were rely, and most of the area currently sparrow (42 FR 40685 and 42 FR 47840). discovered in this area, they were

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relatively widespread (Werner 1975, p. boundary of ENP, and is the when other subpopulations may become 33), suggesting that they had occurred in northernmost of the units east of Shark deeply inundated for long periods. this region for a long period prior to River Slough. This is the smallest of the Because of its dryness and its their discovery. The majority of this area proposed units and the majority of the proximity to developed areas, this area was included in the 1977 critical habitat proposed unit is within currently has been subjected to frequent human- designation for the sparrow (42 FR designated critical habitat. It is bounded caused fires during the past decade, 40685 and 42 FR 47840). This area is on the north and west by the sawgrass resulting in periods of poor habitat currently occupied by sparrows and marshes and deep-water slough quality. Management of fires in the area contains one or more of the PCEs. vegetation communities associated with will continue to require special This area is essential to the Shark River Slough, and on the east by consideration. In addition, the dry conservation of the species because it agricultural and residential conditions have allowed encroachment supports one of the large, relatively development and the boundary of ENP. of woody vegetation, including invasive stable sparrow subpopulations. It is also Its southern boundary is defined by the exotic and native woody species. centrally located among the areas sparse vegetation and shallow soils of Invasive exotic trees, primarily supporting other subpopulations, and the Rocky Glades. Australian-pine (Casuarina spp.), its central location probably plays an Similar to the other eastern melaleuca (Melaleuca quinquenervia), important role in aiding dispersal subpopulations, sparrows were not and Brazilian pepper (Schinus among subpopulations, particularly known to occur in this area at the time terebinthifolius), have become movements from the eastern of listing in 1967, but were discovered established in local areas (Werner 1975, subpopulations to the subpopulations during surveys from 1972 to 1975 pp. 46–47), often forming dense stands. west of Shark River Slough. Since 1997, (Werner 1975, p. 32). We consequently These trees have reduced the suitability this area has supported the second consider this proposed unit to be of some portions of the habitat for largest sparrow subpopulation, ranging unoccupied at the time of listing. sparrows and have reduced the amount from 576 to nearly 1,000 individuals in However, when sparrows were of contiguous open habitat. Aggressive recent years (Pimm et al. 2002, p. 70; discovered in this area, they were management programs have been Pimm and Bass 2006, p. 16). relatively widespread (Werner 1975, p. implemented by management agencies The centrality of this subpopulation 33), suggesting that they had occurred in to address this issue, and control of also helps to prevent it from being this region for a long period prior to woody vegetation will continue to be affected by managed hydrologic their discovery. The majority of this area required. conditions because it is distant from was included in the 1977 critical habitat canals, pumps, and water management Effects of Critical Habitat Designation designation for the sparrow (42 FR structures that occur along the 40685 and 42 FR 47840). This area is Section 7 Consultation boundaries of ENP. The magnitude of currently occupied by sparrows, and any managed water releases is generally Section 7 of the Act requires Federal contains one or more of the PCEs dampened by the time their influences agencies, including the Service, to reach this area. However, the proximity associated with sparrow critical habitat. ensure that actions they fund, authorize, of this area to Shark River Slough may The first comprehensive surveys of or carry out are not likely to destroy or make the habitats and the sparrows that potential sparrow habitat in 1981 adversely modify critical habitat. In our they support vulnerable to hydrologic resulted in an estimated population of regulations at 50 CFR 402.02, we define effects during wet periods. The western 112 sparrows in this area, and most destruction or adverse modification as portions of the area may become too subsequent surveys have resulted in ‘‘a direct or indirect alteration that deeply inundated to provide good estimates lower than this, including appreciably diminishes the value of habitat for sparrows under some deep several years when no sparrows were critical habitat for both the survival and water conditions. Large-scale hydrologic found (Pimm et al. 2002, p. 70; Pimm recovery of a listed species. Such modifications, such as those proposed and Bass 2006, p. 16). However, alterations include, but are not limited under the Comprehensive Everglades sparrows were always found in the area to, alterations adversely modifying any Restoration Plan, have the potential to in the year following a zero count of those physical or biological features influence habitat conditions in this area, (Pimm et al. 2002, p. 70), indicating that that were the basis for determining the and may require special management sparrows are consistently using the area. habitat to be critical.’’ However, recent attention. Large-scale fires may also This area is essential to the decisions by the 5th and 9th Circuit detrimentally affect this area, and there conservation of the sparrow because it Court of Appeals have invalidated this are no intervening features in the region would serve to support or recolonize definition (see Gifford Pinchot Task that would aid in reducing the potential subpopulations C and E (in units 4 and Force v. U.S. Fish and Wildlife Service, impacts on this subpopulation. While 6) if those areas were to become 378 F.3d 1059 (9th Cir 2004) and Sierra the area is relatively distant from ENP unsuitable. Loss of habitat in this area Club v. U.S. Fish and Wildlife Service et boundaries and potential sources of would also result in a reduction in the al., 245 F.3d 434, 442F (5th Cir 2001)). human-caused ignition, fires that are total spatial distribution of sparrows. Its Pursuant to current national policy and started along the eastern ENP boundary position in the landscape results in a the statutory provisions of the Act, may rapidly spread into the area. The unique set of threats that differ from destruction or adverse modification is 2001 Lopez fire was a human-caused those in other subpopulations. Because determined on the basis of whether, fire that affected a portion of this unit of its proximity to urban and with implementation of the proposed (Lockwood et al. 2005, p. 4). Risk from agricultural areas and its relative Federal action, the affected critical fire may also require management in topographic location, this area has been habitat would remain functional (or this area to prevent impacts to this large consistently overdrained in recent years retain the current ability for the PCEs to sparrow subpopulation. and remains dry for longer periods than be functionally established) to serve the other subpopulations. The relative intended conservation role for the Unit 7: Subpopulation F dryness of the area may allow the site species. Unit 7 consists of 4,958 ac (2,006 ha) to remain suitable as habitat for Section 7(a) of the Act requires of marl prairie that lies along the eastern sparrows under very wet conditions, Federal agencies, including the Service,

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to evaluate their actions with respect to activities they authorize, fund, or carry Activities on State, Tribal, local or any species that is proposed or listed as out are not likely to jeopardize the private lands requiring a Federal permit endangered or threatened and with continued existence of such a species or (such as a permit from the U.S. Army respect to its critical habitat, if any is to destroy or adversely modify its Corps of Engineers under section 404 of proposed or designated. Regulations critical habitat. If a Federal action may the Clean Water Act or a permit under implementing this interagency affect a listed species or its critical section 10(a)(1)(B) of the Act from the cooperation provision of the Act are habitat, the responsible Federal agency Service) or involving some other Federal codified at 50 CFR part 402. (action agency) must enter into action (such as funding from the Federal Section 7(a)(4) of the Act requires consultation with us. As a result of this Highway Administration, Federal Federal agencies to confer with us on consultation, compliance with the Aviation Administration, or the Federal any action that is likely to jeopardize requirements of section 7(a)(2) will be Emergency Management Agency) will the continued existence of a proposed documented through the Service’s also be subject to the section 7 species or result in destruction or issuance of: (1) A concurrence letter for consultation process. Federal actions adverse modification of proposed Federal actions that may affect, but are not affecting listed species or critical critical habitat. This is a procedural not likely to adversely affect, listed habitat, and actions on State, Tribal, requirement only. However, once a species or critical habitat; or (2) a local, or private lands that are not proposed species becomes listed, or biological opinion for Federal actions federally funded, authorized, or proposed critical habitat is designated that may affect, but are likely to permitted, do not require section 7 as final, the full prohibitions of section adversely affect, listed species or critical consultation. 7(a)(2) apply to any Federal action. The habitat. primary utility of the conference When we issue a biological opinion Application of the Jeopardy and procedures is to maximize the concluding that a project is likely to Adverse Modification Standards for opportunity for a Federal agency to result in jeopardy to a listed species or Actions Involving Effects to the Cape adequately consider proposed species the destruction or adverse modification Sable Seaside Sparrow and Its Critical and critical habitat and avoid potential of critical habitat, we also provide Habitat delays in implementing their proposed reasonable and prudent alternatives to Jeopardy Standard action because of the section 7(a)(2) the project, if any are identifiable. compliance process, should those ‘‘Reasonable and prudent alternatives’’ Prior to and following designation of species be listed or the critical habitat are defined at 50 CFR 402.02 as critical habitat, the Service has applied designated. alternative actions identified during an analytical framework for Cape Sable Under conference procedures, the consultation that can be implemented in seaside sparrow jeopardy analyses that Service may provide advisory a manner consistent with the intended relies heavily on the importance of conservation recommendations to assist purpose of the action, that are consistent subpopulations to the survival and the agency in eliminating conflicts that with the scope of the Federal agency’s recovery of the sparrow. The section may be caused by the proposed action. legal authority and jurisdiction, that are 7(a)(2) analysis is focused not only on The Service may conduct either economically and technologically these subpopulations but also on the informal or formal conferences. Informal feasible, and that the Director believes habitat conditions necessary to support conferences are typically used if the would avoid jeopardy to the listed them. proposed action is not likely to have any species or destruction or adverse The jeopardy analysis usually adverse effects to the proposed species modification of critical habitat. expresses the survival and recovery or proposed critical habitat. Formal Reasonable and prudent alternatives can needs of the sparrow in a qualitative conferences are typically used when the vary from slight project modifications to fashion without making distinctions Federal agency or the Service believes extensive redesign or relocation of the between what is necessary for survival the proposed action is likely to cause project. Costs associated with and what is necessary for recovery. adverse effects to proposed species or implementing a reasonable and prudent Generally, if a proposed Federal action critical habitat, inclusive of those that alternative are similarly variable. is incompatible with the viability of the may cause jeopardy or adverse Regulations at 50 CFR 402.16 require affected subpopulation(s), inclusive of modification. Federal agencies to reinitiate associated habitat conditions, a jeopardy The results of an informal conference consultation on previously reviewed finding for the species is warranted, are typically transmitted in a conference actions in instances where a new because of the relationship of each report, while the results of a formal species is listed or critical habitat is subpopulation to the survival and conference are typically transmitted in a subsequently designated that may be recovery of the species as a whole. conference opinion. Conference affected and the Federal agency has Adverse Modification Standard opinions on proposed critical habitat are retained discretionary involvement or typically prepared according to 50 CFR control over the action or such For the reasons described in the 402.14, as if the proposed critical discretionary involvement or control is Director’s December 9, 2004 habitat were designated. We may adopt authorized by law. Consequently, some memorandum, the key factor related to the conference opinion as the biological Federal agencies may request the adverse modification determination opinion when the critical habitat is reinitiation of consultation with us on is whether, with implementation of the designated, if no substantial new actions for which formal consultation proposed Federal action, the affected information or changes in the action has been completed, if those actions critical habitat would remain functional alter the content of the opinion (see 50 may affect subsequently listed species (or retain the current ability for the CFR 402.10(d)). As noted above, any or designated critical habitat or primary constituent elements to be conservation recommendations in a adversely modify or destroy proposed functionally established) to serve the conference report or opinion are strictly critical habitat. intended conservation role for the advisory. Federal activities that may affect the species. Generally, the conservation role If a species is listed or critical habitat Cape Sable seaside sparrow or its of Cape Sable seaside sparrow critical is designated, section 7(a)(2) of the Act designated critical habitat will require habitat units is to support viable core requires Federal agencies to ensure that section 7 consultation under the Act. area populations.

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Section 4(b)(8) of the Act requires us species, all areas are currently occupied Under section 4(b)(2) of the Act, we to briefly evaluate and describe in any by sparrows (based on surveys must consider the economic impact and proposed or final regulation that conducted since 1981; Pimm et al. 2002; any other relevant impact of designating designates critical habitat those Pimm and Bass 2006), and all areas are areas as critical habitat. We may exclude activities involving a Federal action that likely to be used by the sparrow. Federal any area from critical habitat if we may destroy or adversely modify such agencies already consult with us on determine that the benefits of exclusion habitat, or that may be affected by such activities in areas currently occupied by outweigh the benefits of inclusion. designation. Activities that may destroy the sparrow if the species may be or adversely modify critical habitat may affected by the activity to ensure that Benefits of Inclusion also jeopardize the continued existence those Federal actions do not jeopardize The most direct benefit of critical of the species. Activities that may the continued existence of the sparrow habitat is that actions taken, authorized, destroy or adversely modify critical or destroy or modify its current or funded by the Federal government habitat are those that alter the PCEs to designated critical habitat. require consultation under section 7 of an extent that the conservation value of Application of Section 3(5)(A) and the Act to ensure that these actions are the designated critical habitat for the Exclusions Under Section 4(b)(2) of the not likely to destroy or adversely modify sparrow is appreciably reduced. Act critical habitat (see ‘‘Effects of Critical Activities that, when carried out, Habitat Designation—Section 7 funded, or authorized by a Federal The seven units we propose as revised Consultation’’). This regulatory benefit agency, may affect critical habitat and critical habitat satisfy the definition of has two principal limitations. First, it therefore result in consultation for the critical habitat under section 3(5)(A) of applies only to Federal actions and not sparrow include, but are not limited to: the Act because each is a specific area to other actions that may destroy or (1) Actions that would significantly within the geographical area occupied adversely modify critical habitat. and detrimentally alter the hydrology of by the Cape Sable seaside sparrow at the Second, it ensures only that designated marl prairie habitat found in all units. time of listing within which are found areas are not destroyed or adversely Such activities could include, but are those physical and biological features modified and does not require specific not limited to, changes to hydrological that are essential to its conservation and steps toward recovery. that may require special management management plans that result in Another benefit of critical habitat is considerations or protection, or is an increased depth of inundation or that its designation serves to educate duration of flooding within sparrow area not occupied by this species at the time of listing but is essential to the landowners, State and local habitat during the breeding season; governments, and the general public. By (2) Actions that would allow conservation of the sparrow (see clearly delineating areas of high encroachment of nonnative and invasive ‘‘Primary Constituent Elements,’’ conservation value, designation may woody plant species. Such activities ‘‘Criteria Used to Delineate Critical help focus and promote conservation could include, but are not limited, to Habitat,’’ and ‘‘Special Management efforts for the Cape Sable seaside local or regional overdrying and Considerations or Protection’’). We sparrow. Designation informs State and introduction of nonnative woody plant considered whether conservation Federal agencies and local governments species; activity on publicly or privately (3) Actions that would significantly managed lands within a proposed unit about areas that they may consider for and detrimentally alter the topography might remove the need for special protection or conservation. of a site (such alteration may affect the management considerations or Benefits of Exclusion hydrology of an area or may render an protection from all or part of a unit. All area unsuitable for nesting). Such of the proposed revised critical habitat Because the regulatory effect of activities could include, but are not units fall within lands managed wholly critical habitat is limited to Federal limited to, off-road vehicle use and or partially for conservation purposes. actions, the non-economic impacts of mechanical clearing; We considered excluding NPS lands critical habitat are generally limited to (4) Actions that would reduce the and State-managed lands from the Federal lands, partnerships, and trust value of a site by significantly proposed critical habitat designation resources. We have determined that the disturbing sparrows from activities, because these properties currently lands encompassed by the proposed such as foraging and nesting; and operate under general management revised critical habitat units for the (5) Actions that would significantly plans (NPS) or conceptual management Cape Sable seaside sparrow are not and detrimentally alter water quality plans (FWC) that address habitat owned or managed by the Department of that may lead to detrimental changes in management for the sparrow. ENP and Defense, there are currently no HCPs for vegetation species composition and BCNP are currently drafting new the Cape Sable seaside sparrow, and the structure or productivity of prey General Management Plans, but they are proposed revised designation does not organisms and may have direct not yet complete. While the existing include any Tribal lands. We anticipate detrimental effects on sparrows. management plans include provisions no impact to national security, Tribal These activities could reduce and actions intended to maintain the lands, partnerships, or habitat population sizes and the likelihood of habitat type, we determined that none of conservation plans from this revised persistence within one or more sparrow the existing plans provide sufficient critical habitat designation as proposed. subpopulations, and reduce the assurances that hydrologic management Based on the best available suitability of habitat for breeding for in these areas will maintain sparrow information, we believe that the benefits extended periods. habitat. Neither the NPS nor the FWC of designating each of the seven units We consider all of the units proposed directly manage the hydrologic we propose as revised critical habitat as revised critical habitat to contain conditions on their properties. Inflows outweigh the non-economic benefits of features essential to the conservation of into the properties, as well as adjacent excluding any specific areas within the Cape Sable seaside sparrow or to be hydrologic conditions that affect the those units. We will evaluate potential essential to the conservation of the Cape lands through groundwater seepage, are economic benefits of exclusion in a Sable seaside sparrow. All units are regulated by other Federal and State separate notice (see ‘‘Economic within the geographic range of the agencies. Analysis’’).

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Economic Analysis Public Hearings critical habitat. This economic analysis also will be used to determine An analysis of the economic impacts The Act provides for one or more public hearings on this proposal, if compliance with Executive Order of proposing critical habitat for the Cape 12866, Regulatory Flexibility Act, Small Sable seaside sparrow is being prepared. requested. Requests for public hearings must be made in writing at least 15 days Business Regulatory Enforcement We will announce the availability of the prior to the close of the public comment Fairness Act, and Executive Order draft economic analysis as soon as it is period. We intend to schedule public 12630. completed, at which time we will seek hearings on this proposal, if any are Within these areas, the types of public review and comment. At that requested, once the draft economic Federal actions or authorized activities time, copies of the draft economic analysis is available so that we can that we have identified as potential analysis will be available for receive public comment on the draft concerns are listed above in the section downloading from the Internet at economic analysis and proposed rule on Section 7 Consultation. The http://www.fws.gov/verobeach, or by simultaneously. However, we can availability of the draft economic contacting the South Florida Ecological schedule public hearings prior to that analysis will be announced in the Services Office directly (see ADDRESSES). time, if specifically requested. We will Federal Register and in local For further explanation, see the announce the dates, times, and places of newspapers so that it is available for Required Determinations section below. those hearings in the Federal Register public review and comments. When it is completed, the draft economic analysis Editorial Changes and local newspapers at least 15 days prior to the first hearing. can be obtained from the internet Web This proposed rule incorporates a site at http://www.fws.gov/verobeach or Clarity of the Rule change to the common and scientific by contacting the South Florida Ecological Services Office directly (see names of the Cape Sable seaside Executive Order 12866 requires each ADDRESSES). sparrow used in the current critical agency to write regulations and notices habitat entry for this species at 50 CFR that are easy to understand. We invite Regulatory Flexibility Act (5 U.S.C. 601 17.95(b). The current critical habitat your comments on how to make this et seq.) proposed rule easier to understand, entry, established by an August 11, Our assessment of economic effects including answers to questions such as 1977, final rule (42 FR 40685), uses the will be completed prior to final the following: (1) Are the requirements common name ‘‘Cape Sable sparrow’’ rulemaking based upon review of the in the proposed rule clearly stated? (2) and the scientific name ‘‘Ammospiza draft economic analysis prepared Does the proposed rule contain maritima mirabilis.’’ Both names are pursuant to section 4(b)(2) of the Act technical jargon that interferes with the outdated. Our proposed change will and E.O. 12866. This analysis is for the bring the common and scientific names clarity? (3) Does the format of the purposes of compliance with the into agreement with those used by the proposed rule (grouping and order of Regulatory Flexibility Act and does not scientific community as well as names the sections, use of headings, reflect our position on the type of used for this species in the table at 50 paragraphing, and so forth) aid or economic analysis required by New CFR 17.11(h). reduce its clarity? (4) Is the description Mexico Cattle Growers Assn. v. U.S. of the notice in the SUPPLEMENTARY Fish and Wildlife Service 248 F.3d 1277 Peer Review INFORMATION section of the preamble (10th Cir. 2001). helpful in understanding the proposed In accordance with our joint policy Under the Regulatory Flexibility Act rule? (5) What else could we do to make (5 U.S.C. 601 et seq., as amended by the published in the Federal Register on this proposed rule easier to understand? July 1, 1994 (59 FR 34270), and based Small Business Regulatory Enforcement Send a copy of any comments on how Fairness Act (SBREFA) of 1996), on our implementation of the Office of we could make this proposed rule easier Management and Budget’s Final whenever an agency is required to to understand to: Office of Regulatory publish a notice of rulemaking for any Information Quality Bulletin for Peer Affairs, Department of the Interior, Review, dated December 16, 2004, we proposed or final rule, it must prepare Room 7229, 1849 C Street, NW., and make available for public comment will seek the expert opinions of at least Washington, DC 20240. You may e-mail five appropriate and independent a regulatory flexibility analysis that your comments to this address: describes the effects of the rule on small specialists regarding the science in this [email protected]. proposed rule. The purpose of such entities (i.e., small businesses, small review is to ensure that our critical Required Determinations organizations, and small government jurisdictions). However, no regulatory habitat designation is based on Regulatory Planning and Review flexibility analysis is required if the scientifically sound data, assumptions, In accordance with Executive Order head of the agency certifies the rule will and analyses. We will send copies of 12866, this document is a significant not have a significant economic impact this proposed rule to these peer rule in that it may raise novel legal and on a substantial number of small reviewers immediately following policy issues, but it is not anticipated to entities. The SBREFA amended the publication in the Federal Register. We have an annual effect on the economy Regulatory Flexibility Act (RFA) to will invite these peer reviewers to of $100 million or more or affect the require Federal agencies to provide a comment, during the public comment economy in a material way. Due to the statement of the factual basis for period, on the specific assumptions and tight timeline for publication in the certifying that the rule will not have a conclusions regarding the proposed Federal Register, the Office of significant economic impact on a revised designation of critical habitat. Management and Budget (OMB) has not substantial number of small entities. We will consider all comments and formally reviewed this rule. We are At this time, the Service lacks the information received during the preparing a draft economic analysis of available economic information comment period on this proposed rule this proposed action, which will be necessary to provide an adequate factual during preparation of a final available for public comment, to basis for the required RFA finding. rulemaking. Accordingly, the final determine the economic consequences Therefore, the RFA finding is deferred decision may differ from this proposal. of designating the specific area as until completion of the draft economic

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analysis prepared pursuant to section with two exceptions. It excludes ‘‘a review and revise this assessment as 4(b)(2) of the Act and Executive Order condition of Federal assistance.’’ It also warranted. 12866. This draft economic analysis will excludes ‘‘a duty arising from Takings provide the required factual basis for the participation in a voluntary Federal RFA finding. Upon completion of the program,’’ unless the regulation ‘‘relates In accordance with Executive Order draft economic analysis, the Service will to a then-existing Federal program 12630 (‘‘Government Actions and publish a notice of availability of the under which $500,000,000 or more is Interference with Constitutionally draft economic analysis of the proposed provided annually to State, local, and Protected Private Property Rights’’), we designation and reopen the public tribal governments under entitlement have analyzed the potential takings comment period for the proposed authority,’’ if the provision would implications of designating critical designation. The Service will include ‘‘increase the stringency of conditions of habitat for the Cape Sable seaside with the notice of availability, as assistance’’ or ‘‘place caps upon, or sparrow in a takings implications appropriate, an initial regulatory otherwise decrease, the Federal assessment. The takings implications flexibility analysis or a certification that Government’s responsibility to provide assessment concludes that this the rule will not have a significant funding,’’ and the State, local, or Tribal designation of critical habitat for the economic impact on a substantial governments ‘‘lack authority’’ to adjust Cape Sable seaside sparrow does not number of small entities accompanied accordingly. At the time of enactment, pose significant takings implications. by the factual basis for that these entitlement programs were: However, we will further evaluate this determination. The Service has Medicaid; AFDC work programs; Child issue as we conduct our economic concluded that deferring the RFA Nutrition; Food Stamps; Social Services analysis and review and revise this finding until completion of the draft Block Grants; Vocational Rehabilitation assessment as warranted. economic analysis is necessary to meet State Grants; Foster Care, Adoption Federalism the purposes and requirements of the Assistance, and Independent Living; RFA. Deferring the RFA finding in this In accordance with Executive Order Family Support Welfare Services; and 13132, the rule does not have significant manner will ensure that the Service Child Support Enforcement. ‘‘Federal makes a sufficiently informed Federalism effects. A Federalism private sector mandate’’ includes a assessment is not required. In keeping determination based on adequate regulation that ‘‘would impose an economic information and provides the with Department of Interior and enforceable duty upon the private Department of Commerce policy, we necessary opportunity for public sector, except (i) a condition of Federal comment. requested information from, and assistance or (ii) a duty arising from coordinated development of, this Executive Order 13211 participation in a voluntary Federal proposed revised critical habitat program.’’ On May 18, 2001, the President issued designation with appropriate State Executive Order 13211 on regulations The designation of critical habitat resource agencies in Florida. The that significantly affect energy supply, does not impose a legally binding duty designation of critical habitat in areas distribution, and use. Executive Order on non-Federal government entities or currently occupied by the Cape Sable 13211 requires agencies to prepare private parties. Under the Act, the only seaside sparrow imposes no additional Statements of Energy Effects when regulatory effect is that Federal agencies restrictions to those currently in place undertaking certain actions. This must ensure that their actions do not and, therefore, has little incremental proposed rule to designate critical destroy or adversely modify critical impact on State and local governments habitat for the Cape Sable seaside habitat under section 7. While non- and their activities. The designation sparrow is a significant regulatory Federal entities that receive Federal may have some benefit to these action under Executive Order 12866, but funding, assistance, or permits, or that governments in that the areas that it is not expected to significantly affect otherwise require approval or contain the features essential to the energy supplies, distribution, or use. authorization from a Federal agency for conservation of the species are more Therefore, this action is not a significant an action may be indirectly impacted by clearly defined, and the PCEs of the energy action and no Statement of the designation of critical habitat, the habitat necessary to the conservation of Energy Effects is required. legally binding duty to avoid the species are specifically identified. destruction or adverse modification of While making this definition and Unfunded Mandates Reform Act (2 critical habitat rests squarely on the identification does not alter where and U.S.C. 1501 et seq.) Federal agency. Furthermore, to the what federally sponsored activities may In accordance with the Unfunded extent that non-Federal entities are occur, it may assist these local Mandates Reform Act (2 U.S.C. 1501), indirectly impacted because they governments in long-range planning the Service makes the following receive Federal assistance or participate (rather than waiting for case-by-case findings: in a voluntary Federal aid program, the section 7 consultations to occur). (a) This rule will not produce a Unfunded Mandates Reform Act would Federal mandate. In general, a Federal not apply, nor would critical habitat Civil Justice Reform mandate is a provision in legislation, shift the costs of the large entitlement In accordance with Executive Order statute, or regulation that would impose programs listed above on to State 12988, the Office of the Solicitor has an enforceable duty upon State, local, governments. determined that the rule does not Tribal governments, or the private sector (b) We do not believe that this rule unduly burden the judicial system and and includes both ‘‘Federal will significantly or uniquely affect meets the requirements of sections 3(a) intergovernmental mandates’’ and small governments because only Federal and 3(b)(2) of the Order. We have ‘‘Federal private sector mandates.’’ and State lands are involved in the proposed designating revised critical These terms are defined in 2 U.S.C. proposed designation. As such, a Small habitat in accordance with the 658(5)–(7). ‘‘Federal intergovernmental Government Agency Plan is not provisions of the Act. This proposed mandate’’ includes a regulation that required. However, as we conduct our rule uses standard property descriptions ‘‘would impose an enforceable duty economic analysis, we will further and identifies the PCEs within the upon State, local, or tribal governments’’ evaluate this issue and, as appropriate, designated areas to assist the public in

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understanding the habitat needs of the List of Subjects in 50 CFR Part 17 more of the primary constituent Cape Sable seaside sparrow. Endangered and threatened species, elements. Exports, Imports, Reporting and (4) Critical Habitat Map Units. Data Paperwork Reduction Act of 1995 (44 layers defining map units were created U.S.C. 3501 et seq.) recordkeeping requirements, Transportation. using a GIS and adding activity areas This rule does not contain any new around all Cape Sable seaside sparrow collections of information that require Proposed Regulation Promulgation point count survey coordinates approval by OMB under the Paperwork Accordingly, we propose to amend provided by the National Park Service at Reduction Act. This rule will not part 17, subchapter B of chapter I, title which sparrows have been recorded impose recordkeeping or reporting 50 of the Code of Federal Regulations, since 1981. These activity areas were requirements on State or local as set forth below: merged to form one large polygon, and governments, individuals, businesses, or the boundaries were further refined by organizations. An agency may not PART 17—[AMENDED] delineating suitable sparrow habitat and conduct or sponsor, and a person is not excluding unsuitable habitat along the 1. The authority citation for part 17 borders based on interpretation of 2004 required to respond to, a collection of continues to read as follows: Florida Digital Orthographic Quarter information unless it displays a Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Quads and Landsat false-color satellite currently valid OMB control number. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– imagery (a mosaic of color-balanced National Environmental Policy Act 625, 100 Stat. 3500; unless otherwise noted. Landsat 7 Enhanced Thematic Mapper (NEPA) (42 U.S.C. 4321 et seq.) 2. In § 17.95(b), revise the entry for scenes from December 2003 to April ‘‘Cape Sable Sparrow (Ammospiza 2004 using bands 5, 4, and 3). The It is our position that, outside the maritima mirabilis)’’ to read as follows: projection represented in all mapping of Tenth Circuit, we do not need to units is Universal Transverse Mercator prepare environmental analyses as § 17.95 Critical habitat—fish and wildlife. (UTM) Zone 17 North, NAD 83 Datum. defined by NEPA in connection with * * * * * (5) Unit 1: (Subpopulation A marl designating critical habitat under the (b) Birds. prairies. Act. We published a notice outlining * * * * * (i) General description: Unit 1 our reasons for this determination in the consists of 59,892 ac (24,237 ha) of marl Federal Register on October 25, 1983 Cape Sable Seaside Sparrow prairie habitat that lies within (48 FR 49244). This assertion was (Ammodramus maritimus mirabilis) Everglades National Park and Big upheld by the Ninth Circuit (Douglas (1) Critical habitat units are depicted Cypress National Preserve in western County v. Babbitt, 48 F.3d 1495 (9th Cir. for Miami-Dade and Monroe Counties, Miami-Dade County and eastern Monroe Ore. 1995), cert. denied 116 S. Ct. 698 Florida, on the maps below. County. (1996)). (2) The primary constituent elements (ii) Coordinates: From the Shark of critical habitat for the Cape Sable Valley Lookout Tower USGS 1:24,000 Government-to-Government quadrangle map, Florida, land and Relationship With Tribes seaside sparrow are the habitat components that provide: water bounded by the following UTM In accordance with the President’s (i) Calcitic marl soils characteristic of Zone 17 NAD 83 coordinates (E, N): memorandum of April 29, 1994, the short-hydroperiod freshwater 514143, 2846698; 516431, 2846561; ‘‘Government-to-Government Relations marshes of the southern Everglades; 516824, 2846011; 516682, 2844068; with Native American Tribal (ii) Herbaceous vegetation that 516594, 2841582; 516875, 2840873; Governments’’ (59 FR 22951), Executive includes greater than 15 percent 517488, 2840452; 517734, 2839419; Order 13175, and the Department of combined cover of live and standing 517673, 2838041; 517387, 2837426; Interior’s manual at 512 DM 2, we dead vegetation of one or more of the 516650, 2837228; 516449, 2836800; readily acknowledge our responsibility following species (when measured 516540, 2835500; 516658, 2834795; 2 516098, 2834078; 514660, 2832924; to communicate meaningfully with across an area of greater than 100 feet 2 514076, 2832343; 513001, 2831639; recognized Federal Tribes on a or 30.5 meters ): Muhly grass 512839, 2830561; 512823, 2828209; government-to-government basis. We (Muhlenbergia filipes), Florida little 512043, 2827390; 511172, 2827222; have determined that there were no bluestem (Schizachyrium rhizomatum), 509898, 2827253; 508760, 2827281; Tribal lands occupied at the time of black-topped sedge (Schoenus 508159, 2827079; 508038, 2826568; listing and no Tribal lands contain nigricans), and cordgrass (Spartina 508013, 2825568; 508511, 2824880; unoccupied areas that are essential for bakeri); 509868, 2824901; 511045, 2824251; the conservation of the Cape Sable (iii) Contiguous open habitat. Sparrow 511198, 2823869; 511168, 2822653; seaside sparrow. Therefore, revised subpopulations require large, expansive, 511121, 2821816; 510757, 2821338; critical habitat for the sparrow has not contiguous habitat patches with few or 507478, 2821417; 507360, 2821015; been proposed on Tribal lands. sparse woody shrubs or trees; and (iv) Hydrologic regime such that the 507021, 2820482; 506474, 2820279; References Cited water depth, as measured from the 505878, 2820294; 505159, 2820852; water surface down to the soil surface, 505149, 2821528; 504894, 2822210; A complete list of all references cited does not exceed 20 centimeters during 504136, 2822229; 503651, 2822376; in this rulemaking is available upon the period from March 15 to June 30 at 503427, 2823165; 502463, 2823675; request from Tylan Dean, South Florida a frequency of more than 2 out of every 502423, 2825921; 502848, 2826694; Ecological Services Office (see 10 years. 504152, 2826771; 504593, 2827085; ADDRESSES). (3) Critical habitat does not include 504532, 2827897; 504455, 2829197; Author(s) manmade structures (such as buildings, 504000, 2829424; 503518, 2829679; aqueducts, airports, roads, and other 503534, 2830328; 503610, 2831218; The primary author of this package is paved areas) and the land on which they 503664, 2832353; 503525, 2832735; the South Florida Ecological Services are located existing on the effective date 503102, 2833204; 501505, 2833324; Office. of this rule and not containing one or 500560, 2833482; 500303, 2834029;

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500297, 2834895; 500460, 2837135; (i) General description: Unit 2 498601, 2835269; 498531, 2833907; 500875, 2837476; 502014, 2837476; consists of 11,402 ac (4,614 ha) of mixed 498361, 2832990; 498167, 2832645; 503043, 2837451; 503651, 2837896; cordgrass marsh and freshwater marl 497878, 2832136; 497396, 2832074; 503936, 2838484; 504643, 2838548; prairie habitat that lies within 496453, 2832042; 495799, 2832518; 505407, 2838745; 505831, 2839465; Everglades National Park and Big 495257, 2833010; 495006, 2834067; 506329, 2839885; 506608, 2840176; Cypress National Preserve in western 494409, 2834615; 493847, 2835071; 507187, 2840568; 508459, 2840483; Miami-Dade County and eastern Monroe 493344, 2835636; 492857, 2836108; 509299, 2840462; 509628, 2840589; County. 492393, 2836801; 492033, 2837197; (ii) Coordinates: From the Big Boy 509703, 2841453; 509532, 2842241; 491131, 2837348; 490947, 2838126; Lake USGS 1:24,000 quadrangle map, 509275, 2842815; 508665, 2843343; 490255, 2838530; 489785, 2838965; Florida, land and water bounded by the 489084, 2839756; 488227, 2840237; 508548, 2844103; 509299, 2844896; following UTM Zone 17 NAD 83 487680, 2840545; 487225, 2840832; 509556, 2845404; 510049, 2845608; coordinates (E, N): 492105, 2842446; 487052, 2841334; 487160, 2841939; 513381, 2845500; 513540, 2846442; 492056, 2841913; 491748, 2841423; 487600, 2842592; 488273, 2842889; 514143, 2846698. 491699, 2840927; 491850, 2840297; 489569, 2842986; 490215, 2842971; (iii) Note: Map of Unit 1 is provided at 492135, 2839848; 492631, 2839743; 491320, 2842815; 492105, 2842446. paragraph (6)(iii) of this entry. 493232, 2839379; 494098, 2838547; 494675, 2837925; 495173, 2837895; (iii) Note: Map of Units 1 and 2 (Map 1) (6) Unit 2: Subpopulation A cordgrass 495821, 2837953; 497182, 2837717; follows: marshes. 497993, 2836868; 498545, 2836007; BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C 529854, 2803763; 529386, 2803611; 520072, 2797481; 519245, 2798319; (7) Unit 3: Subpopulation B. 529182, 2803097; 529144, 2802662; 518416, 2799104; 517970, 2799879; (i) General description: Unit 3 529296, 2802167; 529728, 2801965; 517793, 2800456; 517534, 2801062; consists of 39,053 ac (15,804 ha) of marl 530138, 2801955; 530767, 2801940; 517266, 2801260; 516889, 2801515; prairie habitat that lies within 531394, 2801843; 531909, 2801666; 516474, 2802425; 516492, 2803162; Everglades National Park in southwestern Miami-Dade County. 532314, 2801438; 532312, 2801384; 516515, 2804116; 516430, 2805100; (ii) Coordinates: From the Long Pine 532262, 2800430; 531975, 2799918; 516586, 2805888; 517094, 2806530; Key USGS 1:24,000 quadrangle map, 531693, 2799543; 531425, 2798649; 517680, 2807007; 517877, 2807248; Florida, land and water bounded by the 531410, 2798077; 531094, 2797430; 518159, 2807596; 518527, 2808078; following UTM Zone 17 NAD 83 530664, 2796649; 530325, 2796193; 519049, 2808174; 520226, 2808227; coordinates (E, N): 526917, 2808910; 529846, 2795632; 529518, 2795640; 520856, 2808239; 521482, 2808115; 527089, 2808114; 527308, 2808109; 528557, 2795500; 528065, 2795485; 521938, 2807749; 522335, 2807194; 528319, 2808057; 528750, 2807801; 527787, 2795300; 527450, 2794981; 522567, 2806642; 522754, 2806447; 528903, 2807333; 529236, 2806425; 527006, 2794692; 526591, 2794511; 523349, 2806159; 523785, 2806121; 529691, 2806032; 530946, 2805892; 526017, 2794525; 525180, 2794982; 524093, 2806387; 524429, 2806706; 531630, 2805875; 532441, 2805501; 524802, 2795155; 523987, 2795393; 524846, 2806996; 525021, 2807428; 532453, 2804873; 531446, 2803970; 522696, 2796271; 522130, 2796639; 525305, 2807858; 525560, 2808206; 530870, 2803902; 530241, 2803890; 521206, 2796853; 520557, 2797169;

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525406, 2808619; 525663, 2809050; National Park, in southern Miami-Dade 529250, 2825333; 529197, 2826539; 526296, 2809225; 526917, 2808910. County, as depicted on Map 2. 529735, 2827183; 530668, 2827160; (iii) Note: Map of Unit 3 is provided at (ii) Coordinates: From the Royal Palm 531953, 2826965; 532774, 2826835; paragraph (11)(iii) of this entry. Ranger Station SE USGS 1:24,000 533193, 2826031; 533510, 2825530; quadrangle map, Florida, land and 533777, 2825195; 534094, 2824694; (8) Unit 4: Subpopulation C. water bounded by the following UTM 533885, 2824015; 533544, 2823558; (i) General description: Unit 4 Zone 17 NAD 83 coordinates (E, N): 533230, 2823045; 533211, 2822307; consists of 8,059 ac (3,261 ha) of marl 546623, 2805929; 547722, 2805064; 533415, 2821672; 533623, 2821174; prairie habitat that lies within 547780, 2804591; 548184, 2804651; 534292, 2820473; 534774, 2819968; Everglades National Park in western 548884, 2804634; 549599, 2804511; 534844, 2819501; 535075, 2818811; Miami-Dade County. 550164, 2804008; 550253, 2803378; 535283, 2818368; 534879, 2817556; (ii) Coordinates: From the Long Pine 549944, 2802896; 549549, 2802504; 534463, 2817375; 533609, 2817259; Key USGS 1:24,000 quadrangle map, 549138, 2802148; 549024, 2801801; 531442, 2817339; 530965, 2816913; Florida, land and water bounded by the 549035, 2801539; 549039, 2800997; 530377, 2816462; 529199, 2816545; following UTM Zone 17 NAD 83 549140, 2800122; 549122, 2799389; 528179, 2816378; 527947, 2815864; coordinates (E, N): 534909, 2812258; 548970, 2798904; 548373, 2798813; 527689, 2815432; 527085, 2815447; 535011, 2812832; 535192, 2813089; 547483, 2798958; 546821, 2799061; 526289, 2815439; 525570, 2815237; 535650, 2813200; 536001, 2813209; 545890, 2798962; 545532, 2798621; 525284, 2814779; 525270, 2814177; 536491, 2813232; 536722, 2813349; 545114, 2798003; 544479, 2797791; 525195, 2813357; 525067, 2812648; 536766, 2813714; 536778, 2814185; 543887, 2797946; 543689, 2798405; 523941, 2812621; 523173, 2812640; 536928, 2814601; 537297, 2814644; 543750, 2799468; 543726, 2799940; 522612, 2813283; 521991, 2813682; 537496, 2814936; 537501, 2815128; 543689, 2800535; 543343, 2800736; 521696, 2813963; 521545, 2814542; 542783, 2800715; 542331, 2800865; 537809, 2815540; 538341, 2815806; 521562, 2815253; 521603, 2815772; 541727, 2801212; 541556, 2801356; 538763, 2815900; 539200, 2815890; 521841, 2816533. 541478, 2801759; 541479, 2802493; 539689, 2815825; 540446, 2815981; 541666, 2802977; 542234, 2803313; (iii) Note: Map of Unit 6 is provided at 540831, 2815972; 541202, 2816120; 542611, 2803670; 542775, 2803928; paragraph (11)(iii) of this entry. 541312, 2811350; 541539, 2811327; 543425, 2804034; 544003, 2804037; (11) Unit 7: Subpopulation F. 541579, 2810820; 541603, 2810365; 544423, 2804027; 544605, 2804337; (i) General description: Unit 7 541542, 2810035; 541376, 2809690; 544618, 2804843; 544595, 2805350; consists of 4,958 ac (2,006 ha) of marl 541211, 2809380; 541133, 2809067; 544742, 2805626; 545170, 2805930; prairie habitat that lies along the eastern 541108, 2808754; 541296, 2808574; 545889, 2805999; 546623, 2805929. boundary of Everglades National Park in 541238, 2808331; 541146, 2808159; central Miami-Dade County. 540844, 2807992; 540792, 2807993; (iii) Note: Map of Unit 5 is provided (ii) Coordinates: From the Grossman 540634, 2807979; 540542, 2807824; at paragraph (11)(iii) of this entry. Hammock USGS 1:24,000 quadrangle 540538, 2807632; 540309, 2807586; (10) Unit 6: Subpopulation E. map, Florida, land and water bounded 539756, 2807879; 539132, 2808138; (i) General description: Unit 6 by the following UTM Zone 17 NAD 83 538618, 2808605; 538734, 2809056; consists of 22,278 ac (9,016 ha) of marl coordinates (E, N): 541235, 2829890; 538901, 2809401; 539067, 2809781; prairie habitat that lies within 541864, 2829822; 542679, 2829488; 538637, 2810071; 538068, 2810417; Everglades National Park in central 542727, 2827880; 542685, 2826187; 537342, 2810784; 536684, 2811114; Miami-Dade County. 542780, 2825068; 542893, 2823965; 536178, 2811179; 535884, 2811326; (ii) Coordinates: From the Pahayokee 542791, 2823409; 542348, 2823192; 535598, 2811787; 535253, 2811988; Lookout Tower USGS 1:24,000 541263, 2823219; 540481, 2823430; 534909, 2812258; quadrangle map, Florida, land and 540440, 2823903; 539993, 2824245; water bounded by the following UTM (iii) Note: Map of Unit 4 is provided at 539241, 2824264; 538593, 2824996; Zone 17 NAD 83 coordinates (E, N): paragraph (11)(iii) of this entry. 538791, 2825899; 539239, 2826324; 521841, 2816533; 525940, 2820239; 539702, 2827361; 539928, 2828001; (9) Unit 5: Subpopulation D. 525968, 2820266; 526694, 2820741; 540356, 2829021; 540489, 2829454; (i) General description: Unit 5 527084, 2820978; 527388, 2821080; 540691, 2829833; 541235, 2829890. consists of 10,700 ac (4,330 ha) of marl 527374, 2821600; 527360, 2822148; prairie habitat that lies within the 527457, 2822748; 527735, 2822906; (iii) Note: Map of Units 3, 4, 5, 6, and 7 Southern Glades Wildlife and 528070, 2823117; 528417, 2823848; (Map 2) follows: Environmental Area and Everglades 529028, 2824134; 529238, 2824841; BILLING CODE 4310–55–P

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* * * * * Dated: October 19, 2006. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 06–8930 Filed 10–30–06; 8:45 am] BILLING CODE 4310–55–C

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