41812 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules
1. The primary constituent elements and New York as critical habitat under FOR FURTHER INFORMATION CONTACT: essential for the conservation of wintering the Endangered Species Act of 1973, as Laura J. Ragan; (612) 713–5350. piping plovers are those habitat components amended, for the Great Lakes breeding SUPPLEMENTARY INFORMATION: that support foraging, roosting, and sheltering population of the piping plover and the physical features necessary for Background maintaining the natural processes that (Charadrius melodus). We propose to support these habitat components. The designate critical habitat on fewer than The piping plover (Charadrius primary constituent elements include 305 km (189 mi) in 27 counties within melodus), named for its melodic mating intertidal beaches and flats (between annual these States. Within these areas, only call, is a small, pale-colored North low tide and annual high tide) and associated the specific locations that have or could American shorebird. It weighs 43–63 dune systems and flats above annual high develop the physical and biological grams (1.5–2.5 ounces) and is 17–18 tide. Important components of intertidal flats features required by piping plovers centimeters (cm) (6–7 inches (in.)) long include sand and/or mud flats with no or (primary constituent elements) would (Haig 1992). Its light, sand-colored very sparse emergent vegetation. In some plumage blends in well with its primary cases, these flats may be covered or partially be considered critical habitat. covered by a mat of blue-green algae. The primary constituent elements for sandy beach habitat. Plumage and leg Adjacent non-or sparsely vegetated sand, the piping plover are those habitat color help distinguish this bird from mud, or algal flats above high tide are also components that are essential for other plover species. During the important, especially for roosting piping foraging, sheltering, reproduction, breeding season, the legs are bright plovers, and are primary constituent rearing of young, intra-specific orange, and the short, stout bill is elements of piping plover wintering habitat. orange with a black tip. There are two Such sites may have debris, detritus communication, roosting, nesting, and dispersal. single dark bands, one around the neck (decaying organic matter), or micro- and one across the forehead between the This proposed rule, if made final, topographic relief (less than 50 cm above eyes. The female’s neck band is often substrate surface) offering refuge from high would result in additional review incomplete and is usually thinner than winds and cold weather. Important requirements under section 7 of the Act. the male’s (Haig 1992). In winter, the components of the beach/dune ecosystem Federal agencies may not fund, bill turns black, the legs fade to pale include surf-cast algae, sparsely vegetated authorize, or carry out an action that orange, and the black plumage band on backbeach (beach area above mean high tide would destroy or adversely modify seaward of the permanent dune line, or in the head and neck is lost. Chicks have critical habitat. Section 4 of the Act cases where no dunes exist, seaward of a speckled gray, buff, and brown down, delineating feature such as a vegetation line, requires us to consider economic and black beaks, pale orange legs, and a structure, or road), spits, and washover areas. other impacts of specifying any white collar around the neck. Juveniles Washover areas are broad, unvegetated zones, particular area as critical habitat. We resemble wintering adults and obtain with little or no topographic relief, that are solicit data and comments from the their adult plumage the spring after they formed and maintained by the action of public on all aspects of this proposal, hurricanes, storm surge, or other extreme fledge (Service 1994). including potential economic and other The breeding range of the piping wave action. impacts of the designation. 2. Critical habitat does not include existing plover extends throughout the northern developed sites consisting of buildings, DATES: Comments: We will consider Great Plains, the Great Lakes, and the marinas, paved areas, boat ramps, and similar comments received by September 5, Atlantic Coast in the United States and structures. 2000. Canada. Based on this distribution, * * * * * Public Hearings: We have scheduled three breeding populations of piping Dated: June 28, 2000. seven public hearings for this proposal. plovers have been described: the Donald J. Barry, See Hearings section for hearing dates Northern Great Plains population, the and addresses. Great Lakes population, and the Atlantic Assistant Secretary for Fish and Wildlife and Coast population. Parks. We will hold public informational open houses at the same locations prior The northern Great Plains breeding [FR Doc. 00–16816 Filed 6–30–00; 9:00 am] range includes southern Alberta, BILLING CODE 4310±55±C to each public hearing. The informational open houses will start at northern Saskatchewan, and southern 6 pm. The public hearings will start at Manitoba; south to eastern Montana, the Dakotas, southeastern Colorado, Iowa, DEPARTMENT OF THE INTERIOR 7 pm and end at 9 pm. Minnesota, and Nebraska; and east to ADDRESSES: Send written comments and Fish and Wildlife Service Lake of the Woods in north-central other materials concerning this proposal Minnesota. The majority of the United to: Piping Plover Comments, U.S. Fish 50 CFR Part 17 States pairs are in the Dakotas, and Wildlife Service, Bishop Henry Nebraska, and Montana (Service 1994). RIN 1018±AG14 Whipple Federal Building, 1 Federal Occasionally, Great Plains birds nest in Drive, Fort Snelling, MN 55111 or by e- Oklahoma and Kansas. On the Atlantic Endangered and Threatened Wildlife mail to coast, piping plovers breed from and Plants; Proposed Designation of [email protected] Newfoundland, southeastern Quebec, Critical Habitat for the Great Lakes or by facsimile to 612–713–5292. and New Brunswick to North Carolina, Breeding Population of the Piping The complete file for this proposed with 68 percent of all the nesting pairs Plover rule, including comments and materials breeding in Massachusetts, New York, AGENCY: Fish and Wildlife Service, received, as well as supporting New Jersey, and Virginia (Service 1999). Interior. documentation used in the preparation In the Great Lakes watershed, piping ACTION: Proposed rule. of this proposed rule, will be available plovers formerly nested throughout for public inspection, by appointment, much of the region in the north-central SUMMARY: We, the U.S. Fish and during normal business hours at the United States and south-central Canada, Wildlife Service, propose to designate above address and at the U.S. Fish and but are currently limited to northern 37 units along the Great Lakes shoreline Wildlife Service, East Lansing Field Michigan and one site in northern of Minnesota, Wisconsin, Michigan, Office, 2651 Coolidge Road, Suite 101, Wisconsin. Piping plovers nest on Illinois, Indiana, Ohio, Pennsylvania, East Lansing, MI 48823. shoreline and island sandy beaches with
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Plover v. Babbitt, Case No. 97CV000777) relevant impact, of specifying any given the dynamic character of for the Northern Great Plains piping particular area as critical habitat. We shoreline processes, areas currently plover population in 1997. During may exclude areas from critical habitat lacking some of the constituent November and December 1999 and designation when we determine that elements could develop them in the January 2000, we began negotiating a benefits of excluding those areas future. Over a period of a few years, schedule for piping plover critical outweigh the benefits of including them, these sites may be affected by changes habitat decisions with Defenders. On providing the exclusion would not in local water levels, weather, and other February 7, 2000, before the settlement result in the extinction of the species. external forces, which may in turn negotiations were concluded, the United Designation of critical habitat helps change the suitability of such sites for States District Court for the District of focus conservation activities for a listed piping plovers. Columbia issued an order directing us to species by identifying areas that contain We considered, and are proposing, a publish a proposed critical habitat the physical and biological features that portion of the Bad River Indian designation for nesting and wintering are essential for the conservation of that Reservation because we believe some areas of the Great Lakes breeding species. Designation of critical habitat shoreline areas on Tribal lands may be population of the piping plover by June alerts the public, as well as land- essential to the conservation of Great 30, 2000, and for nesting and wintering managing agencies, to the importance of Lakes piping plover. However, the short areas of the Northern Great Plains these areas. amount of time provided under the Section 7 of the Act requires Federal piping plover by May 31, 2001. A schedule dictated by the court to agencies to ensure, in consultation with subsequent order, after requesting the propose critical habitat prevented us us, that any actions they authorize, court to reconsider its original order from doing more than initiating fund, or carry out do not adversely relating to final critical habitat coordination with the Bad River Band of modify or destroy critical habitat. designation, directs us to finalize the the Lake Superior Tribe of the Section 7 also requires Federal agencies critical habitat designations for the Chippewa Indians. Subsequent to this to confer with us on actions that are Great Lakes population by April 30, proposal, we will continue coordinating likely to result in the adverse 2001, and for the Northern Great Plains with the Bad River Band before making modification or destruction of proposed population by March 15, 2002. For a final determination as to whether any biological and practical reasons, we critical habitat. Designation of critical habitat affects actions on private lands Tribal lands should be included as chose to propose critical habitat for the critical habitat for the Great Lakes Great Lakes breeding birds and for all only when the actions are authorized, funded, or carried out by a Federal piping plover. We will consider whether wintering birds in two separate rules to these Tribal lands require special be published concurrently. agency. Designating critical habitat does not, management considerations or Critical Habitat in itself, lead to recovery of a listed protection; we may also exclude some Critical habitat is defined in section 3 species. Designation does not establish or all of these lands from critical habitat of the Act as: (i) the specific areas a preserve area where human activities upon a determination that the benefits within the geographic area occupied by are prohibited, create a management of excluding them outweigh the benefits a species, at the time it is listed in plan, establish numerical population of designating these areas as critical accordance with the Act, on which are goals, or prescribe specific management habitat, as provided under section found those physical or biological practices (inside or outside of critical 4(b)(2) of the Act. This consultation will features (I) essential to the conservation habitat). Specific management take place under the auspices of the of the species and (II) that may require recommendations for areas designated Secretarial Order 3206 and the special management considerations or as critical habitat are most appropriately Presidential Memorandum of April 29, protection; and, (ii) specific areas addressed in the Recovery Plan, site- 1994, which require us to coordinate outside the geographic area occupied by specific management plans, through with federally recognized Tribes on a a species at the time it is listed, upon section 7 consultation on Federal Government-to-Government basis. determination that such areas are activities, and section 10 incidental take Methods essential for the conservation of the permits. species. ‘‘Conservation’’ means the use All of the proposed critical habitat In determining areas that are essential of all methods and procedures that are areas are considered essential to the to conserve the Great Lakes breeding necessary to bring an endangered or conservation of the Great Lakes breeding population of the piping plover, we threatened species to the point at which population of the piping plover as used the best scientific and commercial listing under the Act is no longer described in the approved 1988 data available. We solicited information necessary. Thus, critical habitat areas Recovery Plan for the Great Lakes and from knowledgeable biologists and should provide sufficient habitat to Northern Great Plains Piping Plover reviewed the available information support the species at the population (Plan) and the 1994 Recovery Plan for pertaining to habitat requirements of the level and geographic distribution that is the Great Lakes Piping Plover. The species. In an effort to map areas necessary for recovery. Proposed critical proposed designation encompasses essential to the conservation of the habitat for the Great Lakes breeding those areas considered necessary to species, we used data of known piping population of the piping plover includes achieve the recovery goals for this plover breeding locations, records of areas that currently support the species, population, and includes Great Lakes historical nesting sites, International and also areas that are not currently shoreline and island beaches that Census data, and those areas that were used by the species but that contain currently support piping plovers, that identified in the 1988 recovery plan and habitat essential for the recovery of the historically supported and are still 1999 draft recovery plan as essential for species. capable of supporting piping plovers, the recovery of the species. We have Section 4(b)(2) of the Act requires that and areas that have the potential to chosen the 37 critical habitat units in we base critical habitat proposals upon support piping plovers in the future. order to protect adequate habitat to meet the best scientific and commercial data Not all of the primary constituent the recovery criteria, contained in the available, after taking into consideration elements may be present in all of the Plan and draft Plan, of 100 breeding the economic impact, and any other areas proposed for designation, but pairs in Michigan and 50 breeding pairs
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TABLE 1.ÐKILOMETERS OF GREAT LAKES SHORELINE PROPOSED AS CRITICAL HABITAT UNITS FOR THE PIPING PLOVER IN EACH GREAT LAKES STATE SUMMARIZED BY FEDERAL, STATE, MUNICIPAL, PRIVATE AND OTHER OWNERSHIP
Ownership km shoreline (percentage within each State) Federal State Municipal Private Other Total
Michigan ...... 36.6 (16.9) 103.6 (47.9) 6.1 (2.8) 64 (29.6) 6 TNC (2.8) 216.3 Minnesota ...... 0 1.4 (50.0) 1.0 (35.7) 0.4 (14.3) 0 2.8 Wisconsin ...... 11.0 (33.8) 11.0 (33.8) 5.5 (16.9) 0 5 tribal (15.4) 32.5 Illinois ...... 0 4.7 (46.3) 1.25 (12.3) 4.2 (41.3) 0 10.15 Indiana ...... 5.5 (52.4) 5.0 (47.6) 0 0 0 10.5 Ohio ...... 0 2.0 (50) 0 2.0 (50) 0 4.0 Pennsylvania ...... 0.4 (26.7) 1.1 (73.3) 0 0 0 1.5 New York ...... 0 12.4 (45.3) 0 14.6 (53.3) 0.4 TNC (1.5) 27.4 Total (percentage of) ...... 53.5 (17.5) 141.2 (46.3) 13.85 (4.5) 85.2 (27.9) 11.4 (3.7) 305.1
There is no numerical estimate of the suitable habitat. Because of the loss of primary constituent elements for the extent of the piping plover’s historical historical habitat and the dynamic piping plover in the Great Lakes region. range in the Great Lakes, but Russell nature of the Great Lakes shoreline, All critical habitat unit boundaries (1983) indicates that several areas where some areas for which there are no extend 1 km (0.62 miles) inland from piping plovers once nested are no longer historical records of piping plovers but the normal high water line, although the suitable. Much historically occupied which are potential nesting habitat are area that contains the primary habitat has been destroyed by activities being proposed for designation. Without constituent elements may vary such as marina development, these potential habitat areas, there depending on the extent of the open construction of seawalls, and the would not be enough nesting habitat to dune system. This area is needed to increased use of recreation areas. meet the recovery criteria outlined in provide foraging habitat as well as Additionally, lake level fluctuations and the Revised Recovery Plan for Piping cobble pans between the dunes where winter storms periodically alter the Plovers (1994). piping plovers occasionally nest. A brief quantity and quality of available Lands proposed as critical habitat breeding habitat, making some areas no have been divided into 37 critical description of each critical habitat unit longer suitable for nesting while habitat units that contain, or have the for the piping plover is given below and potentially creating new areas of potential to develop, areas with the in Table 2.
TABLE 2.ÐLOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION
Habitat USGS 7.5′ quad map(s) Est. Location name County Land ownership 1 Plover use 2 length unit 1:24,000 scale (km)
MI±1 Whitefish Point to Grand Marais Whitefish Point ...... Chippewa ...... Whitefish Point (1951) .... Federal (Service), private Recent past, 2.5 transient. Vermilion/Weatherhogs Luce ...... Vermilion (1951) ...... Private ...... Current ...... 2.3 Beach. Crisp Point ...... Luce ...... Betsy Lake North (1968) Municipal, private ...... Recent past ...... 1.0 Little Lake Harbor ...... Luce ...... Betsy Lake North (1968) Private ...... Recent past ...... 1.6 Deer Park ...... Luce ...... Muskallonge Lake East State, private ...... Recent past ...... 2.8 (1968). Muskallonge Lake West (1968). Grand Marais Inner Har- Alger ...... Grand Marais 1968 ...... Multiple private, munic- Current ...... 2.9 bor and Lonesome ipal. Point. Grand Marais Superior Alger ...... Grand Marais 1968 ...... Multiple private, Federal Current ...... 1.2 Beach. (NPS). MI±2 ...... Point Aux Chenes ...... Mackinac Pointe Aux Chenes Federal (USFS), private Current ...... 1.7 (1964, photorevised 1975). MI±3 ...... Port Inland ...... Schoolcraft ...... Hughes Point (1972) ...... Private/State ...... Current ...... 3.0 Mackinac ...... MI±4 Waugoshance Point to beach west of McCort HillÐ Waugoshance Point, Emmet ...... Big Stone Bay (1964, State ...... Current ...... 5.0 Temperance and photoinspected 1975). Crane Islands. Waugoshance Island (provisional 1982). Sturgeon Bay ...... Emmet ...... Bliss (1982) ...... State ...... Current ...... 3.9 Bliss Township Park ...... Emmet ...... Bliss (1982) ...... Municipal ...... Current ...... 1.1
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TABLE 2.ÐLOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGIONÐContinued
Habitat USGS 7.5′ quad map(s) Est. Location name County Land ownership 1 Plover use 2 length unit 1:24,000 scale (km)
Sturgeon Bay Point ...... Emmet ...... Bliss (1982) ...... Multiple private ...... Current ...... 2.4 Cross Village (1982) Cross Village Beach ...... Emmet ...... Cross Village (1982) ...... Municipal, multiple pri- Current ...... 1.3 vate. beach west McCort Hill .. Emmet ...... Cross Village (1982) ...... Multiple private ...... Current ...... 1.4 MI±5 Sevenmile Point to Thorneswift Nature PreserveÐ Sevenmile Point ...... Emmet ...... Forest Beach (1983 pro- Multiple private ...... Potential ...... 0.5 visional). Thorneswift Nature Pre- Emmet ...... Forest Beach (1983 pro- Multiple private ...... Current ...... 0.4 serve. visional). MI±6 Petoskey State Park ...... Emmet ...... Harbor Springs (1983 State, private ...... Historical ...... 2.0 provisional). MI±7 North Point ...... Charlevoix ...... Ironton (1983) ...... Municipal ...... Potential ...... 1.1 Charlevoix (1983) MI±8 Fisherman's Island State Charlevoix ...... Charlevoix (1983) ...... State ...... Current ...... 1.3 Park. MI±9 Indian Point to McCauley's Point, Beaver IslandÐ Donegal Bay-Beaver Is- Charlevoix ...... Garden Island West Multiple private ...... Current ...... 2.0 land. (1980). Beaver Island North (1986). McCauley's Point-Beaver Charlevoix ...... Beaver Island North State ...... Recent past ...... 0.6 Island. (1986). MI±10 Greenes Bay-Beaver Is- Charlevoix ...... Beaver Island North State/private ...... Recent past ...... 0.8 land. (1986). MI±11 High Island ...... Charlevoix ...... High Island (1986) ...... State ...... Current ...... 1.8 MI±12 Cathead Bay to Christmas CoveÐ Cathead Bay ...... Leelanau ...... Northport (provisional State ...... Current ...... 3.4 1983). Cathead Point to Christ- Leelanau ...... Northport/Northport NW Private ...... Potential ...... 2.5 mas Cove. (provisional 1983). MI±13 South Fox Island ...... Leelanau ...... South Fox Island (provi- State ...... Historical ...... 1.0 sional 1986). MI±14 North Manitou ...... Leelanau ...... North Manitou Island Federal (NPS) ...... Current ...... 3.3 (provisional 1983). MI±15 Crystal Run to Empire Leelanau ...... Glen Arbor (1983) ...... Municipal, Federal ...... Potential ...... 14.3 Beach. Glen Haven (1983) Em- pire (1983). MI±16 Esch Road to Sutter Road and Point BetsieÐ Platte Bay ...... Benzie ...... Empire (1983) Beulah Federal (NPS) ...... Potential ...... 7.0 (provisional 1983). Platte River Point and Benzie ...... Beulah (provisional 1983) Federal (NPS) ...... Current ...... 5.5 beach. Point Betsie ...... Benzie ...... Frankfort (1983) ...... Federal (USCG) TNC Historical ...... 1.0 managed. MI±17 Nordhouse Dunes to Mason ...... Manistee NW (provisional Federal (USFS), State .... Transient, histor- 13.4 Ludington. 1982). ical. Hamlin Lake (1982) ...... MI±18 Muskegon State Park ..... Muskegon ...... Muskegon West (1972 State ...... Historical ...... 2.5 photoinspected 1980). MI±19 Lake Superior State For- Chippewa ...... Albany Island (1964 State ...... Historical ...... 3.0 est-St. Vital Point. photoinspected 1976) DeTour Village (1964). MI±20 Lighthouse Point to Cordwood PointÐ Lighthouse Point ...... Cheboygan ...... Cheboygan (1982) ...... State ...... Recent past ...... 1.4 Grass Bay ...... Cheboygan ...... Cordwood Point (1982) .. TNC preserve ...... Historical, tran- 1.6 sient. MI±21 PH Hoeft State Park ...... Presque Isle ...... Roger's City (1971) ...... State ...... Potential ...... 3.7 Moltke (1971) ...... MI±22 Thompson's Harbor ...... Presque Isle ...... Thompson's Harbor State forest ...... Potential ...... 2.8 (1971). MI±23 Tawas Point State Park Iosco ...... East Tawas (1989) ...... State ...... Transient ...... 2.0 MN±1 Duluth Harbor ...... St. Louis ...... West Duluth (1953, Municipal, State, and pri- Recent past ...... 2.8 photorevised 1969). vate.
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TABLE 2.ÐLOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGIONÐContinued
Habitat USGS 7.5′ quad map(s) Est. Location name County Land ownership 1 Plover use 2 length unit 1:24,000 scale (km)
WI±1 Wisconsin Point ...... Douglas ...... Parkland (1954, Municipal ...... Historical ...... 4.0 photorevised 1975). Superior (1954, photorevised 1983). WI±2 Long Island- Ashland ...... Cedar (1964, Federal (NPS), tribal Current ...... 5.0 Chequamegon Pt. photorevised 1975). (Bad River). Chequamegon Point ......
...... (1964, photorevised 1975). Long Island (1964). WI±3 Western Michigan Island Ashland ...... Michigan Island (1963) ... Federal (NPS) ...... Potential ...... 6.5 WI±4 Seagull Bar ...... Marinette ...... Marinette East (1963, Municipal ...... Potential ...... 1.5 photorevised 1969). WI±5 Peshtigo Point ...... Marinette ...... Peshtigo Harbor (1974) .. State ...... Potential ...... 2.8 WI±6 Pensaukee ...... Oconto ...... Pensaukee (1974) ...... Federal (ACOE) ...... Historical ...... 0.5 WI±7 Point Beach State Forest Manitowoc ...... Two Rivers (1978) ...... State ...... Potential ...... 8.0 IL±1 Illinois Beach State Park Lake ...... Zion, Ill. (1993) ...... Municipal, State, private Historical ...... 10.2 to Waukegan Beach. Waukegan (1993) ...... IN±1 Indiana Dunes National Porter ...... Ogden Dunes (1991) ...... Federal (NPS), State ...... Historical, tran- 10.5 Lakeshore/Indiana Dune Acres (1991) ...... sient. Dunes State Park. OH±1 Sheldon Marsh ...... Erie ...... Huron (1969) ...... State ...... Transient ...... 1.2 Sandusky (1969, photorevised 1975). OH±2 Headlands Dunes ...... Lake ...... Mentor (1963, revised State ...... Potential ...... 0.8 1992). PA±1 Presque Isle State Park Erie ...... Erie North (1957, revised State, Federal (USCG) ... Historical, tran- 1.5 1969 and 1975, sient. photoinspected 1977). NY±1 Salmon River to Stony Oswego ...... Pulaski (1956) ...... State, multiple private ..... Historical ...... 27.4 Point. Jefferson ...... Ellisburg (1958) ...... Henderson (1959) ...... 1 USACE = U.S. Army Corp of Engineers. NPS = National Park Service. TNC = The Nature Conservancy. USFS = U.S. Forest Service. USFWS = U.S. Fish and Wildlife Service. USCG = U.S. Coast Guard. 2 Current = used for nesting since 1995 (49 km). Recent past = used for nesting since 1985 (11.8 km). Historical = used for nesting prior to 1985 (65 km). Transient = Recent (since 1990) sightings of piping plovers (18 km). Potential = no known record of use but habitat appears suitable for nesting (52 km).
Michigan junction of the southern boundary of Unit MI–3: Port Inland to Hughes Point T50N R5W section 6 to the Pictured Unit MI–1: Whitefish Point to Grand Rocks National Lakeshore property This unit encompasses approximately Marais boundary. 3 km (1.8 mi) of Lake Michigan This unit encompasses approximately shoreline in western Mackinac and 83.5 km (50 mi) of Lake Superior Unit MI–2: Pointe Aux Chenes eastern Schoolcraft Counties on the shoreline in Chippewa, Luce, and Alger This unit encompasses approximately Upper Peninsula of Michigan. It Counties on the Upper Peninsula of 2 km (1.2 mi) of Lake Michigan includes areas that are currently Michigan. It includes long stretches of shoreline in Mackinac County on the occupied by piping plovers. habitat that have been recently used by Upper Peninsula of Michigan. It Approximately 0.8 km (0.5 mi) of the piping plovers in addition to areas includes areas that are currently proposed shoreline is owned by Port currently used by plovers. occupied by piping plovers. The Inland Stone and Dolomite Quarry and Approximately 47 km (29.2 mi) are part majority of the unit (1.1 km (0.7 mi)) is the remaining 2.2 km (1.4 mi) are part of Muskallonge State Park and Lake within the Hiawatha National Forest of the Lake Superior State Forest. This Superior State Forest, approximately 36 and is being considered for a Research unit extends from the westernmost km (22.4 mi) are privately owned, and and Natural Area. The rest of the unit breakwall at the Port Inland Gaging approximately 0.5 km (0.3 mi) are part (approximately 0.6 km (0.4 mi)) is Station to the mouth of Swan Creek. of Whitefish Point National Wildlife privately owned land. This unit extends Refuge. This unit also includes a small from the mouth of the Pointe Aux area of municipal property at Crisp Chenes river to the Hiawatha National Point. This unit extends from the Forest property boundary.
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Unit MI–4: Waugoshance Point to separating T34N R8W section 31 and T32N R11W section 16 north of McCort Hill Beach T33N R8W section 6 from the Lake Christmas Cove (Northport NW quad). Michigan shore to the Fisherman’s This unit encompasses approximately Unit MI–13: South Fox Island 32 km (19.2 mi) of Lake Michigan Island State Park property boundary at This unit encompasses approximately shoreline in Emmet County, Michigan, the end of Lakeshore Drive. and includes Temperance and 1 km (0.6 mi) of Lake Michigan Unit MI–9: Indian Point to McCauley’s shoreline on South Fox Island in Waugoshance islands. It includes areas Point, Beaver Island that are currently occupied by piping Leelanau County, Michigan. It includes This unit encompasses approximately plovers and supports about half of the areas that were historically occupied by current Great Lakes piping plover 5 km (3.1 mi) of Lake Michigan piping plovers. The entire proposed area population. Approximately 8.5 km (5.3 shoreline on Beaver Island in is part of the Beaver Island State mi) are privately owned and 1 km (0.6 Charlevoix County, Michigan. It Wildlife Research Area. This unit mi) is municipal land (Bliss Township includes areas that are currently includes all Lake Michigan shoreline beach and Cross Village beach). The occupied, as well as areas that have within T34N R13W sections 15, 16, and remaining 22.5 km (14 mi) are part of been recently used by piping plovers. 21 and T35R13W section 30. Approximately 4.4 km (2.7 mi) are Wilderness State Park. This unit extends Unit MI–14: North Manitou Island from the junction of the northeast corner privately owned and 0.6 km (0.4 mi) is This unit encompasses approximately of T39N R5W section 28 and the Lake part of Beaver Islands State Wildlife 3.3 km (2 mi) of Lake Michigan Michigan shoreline to the southwest Research Area. This unit extends from shoreline on North Manitou Island in boundary of T37N R6W section 5. Indian Point to the junction of the dividing line of T39 N R10W and T38N Leelanau County, Michigan. It includes Unit MI–5: Sevenmile Point to R10W and the Lake Michigan shoreline. areas that are currently occupied by Thornswift Nature Preserve piping plovers. The entire proposed area Unit MI–10: Greenes Bay, Beaver Island This unit encompasses approximately is part of Sleeping Bear Dunes National 7 km (4.3 mi) of Lake Michigan This unit encompasses approximately Lakeshore. This unit includes all Lake shoreline in Emmet County, Michigan. 0.8 km (0.5 mi) of Lake Michigan Michigan shoreline within T31N R14W It includes areas of potential piping shoreline on Beaver Island in sections 22, 23, 27, and 28. plover nesting habitat and areas that are Charlevoix County, Michigan. It includes areas that have been recently Unit MI–15: Crystal Run to Empire currently occupied by piping plovers. Beach The entire proposed area is under used by piping plovers. Approximately private ownership. It extends from the 0.3 km (0.2 mi) is part of the Beaver This unit encompasses approximately junction of the Lake Michigan shoreline Islands State Wildlife Research Area 14.3 km (8.9 mi) of Lake Michigan and the northwest boundary of T36N and the remaining 0.5 km (0.3 mi) is shoreline in Leelanau County, R5W section 30 to the junction of the privately owned land. This unit extends Michigan. It includes areas of potential shoreline and the southwest corner of from the junction of Lake Michigan and piping plover nesting habitat. T35N R5W section 9. the northwest corner of T38N R11W Approximately 4.0 km (2.5 mi) are section 25 to the junction of the Lake municipal beach, and the remaining Unit MI–6: Petoskey State Park Michigan shoreline and the dividing 10.3 km (6.4 mi) are part of Sleeping This unit encompasses approximately line between T39N and T38N R10W. Bear Dunes National Lakeshore. This 2 km (1.2 mi) of Lake Michigan unit extends from Crystal Run to the Unit MI–11: High Island shoreline in Emmet County, Michigan. southern Sleeping Bear Dunes National It includes areas of historical piping This unit encompasses approximately Lakeshore property boundary. plover habitat. Approximately 0.7 km 1.8 km (1.1 mi) of Lake Michigan shoreline on High Island in Charlevoix Unit MI–16: Esch Road to Sutter Road (0.4 mi) is privately owned land and 1.3 and Point Betsie km (0.8 mi) are part of Petoskey State County, Michigan. It includes areas that Park. This unit extends from the mouth are currently occupied by piping This unit encompasses approximately of Tannery Creek to Mononaqua Beach. plovers. The entire proposed area is part 13.5 km (8.4 mi) of Lake Michigan of the Beaver Islands State Wildlife shoreline in Benzie County, Michigan. It Unit MI–7: North Point Research Area. This unit includes all includes areas that are currently This unit encompasses approximately Lake Michigan shoreline within T39N occupied by piping plovers, areas that 1.1 km (0.7 mi) of Lake Michigan R11W sections 5, 27, and 32. were historically occupied, and areas of shoreline in Charlevoix County, potential piping plover nesting habitat. Unit MI–12: Cathead Bay to Christmas Michigan. It includes areas of potential The majority of the unit (12.5 km (7.8 Cove piping plover nesting habitat. The entire mi)) is part of Sleeping Bear Dunes proposed area is a city park owned by This unit encompasses approximately National Lakeshore, and the remaining the city of Charlevoix. It includes all 5.9 km (3.7 mi) of Lake Michigan 1.0 km (0.6 mi) is U.S. Coast Guard land Lake Michigan shoreline within T34N shoreline in Leelanau County, that is managed by The Nature R8W section 14. Michigan. It includes areas that are Conservancy, a private conservation currently occupied by piping plovers organization. This unit extends from Unit MI–8: Fisherman’s Island State and areas of potential piping plover Esch Road to T26N R16W section 4. Park nesting habitat. Approximately 1.9 km This unit encompasses approximately (1.2 mi) are part of Leelanau State Park, Unit MI–17: Nordhouse Dunes and 1.3 km (0.8 miles) of Lake Michigan and the remaining 4.0 km are privately Ludington State Park shoreline in Charlevoix County, owned land. This unit extends from the This unit encompasses approximately Michigan. It includes areas that are intersection of the Lake Michigan 13.4 km (8.3 mi) of Lake Michigan currently occupied by piping plovers. shoreline and the line between T32N shoreline in Mason County, Michigan. It The entire proposed area is within R11W section 12 and T32N R10W includes areas that were historically Fisherman’s Island State Park. This unit section 7 to the intersection of the occupied by piping plovers. At least one extends from the junction of the line shoreline with the southern boundary of pair of piping plovers were sighted in
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Unit WI–7: Point Beach State Forest in Lake County, Ohio. It includes areas Section 7(a) of the Act requires all This unit encompasses approximately of potential piping plover nesting Federal agencies to evaluate their 8 km (5 mi) of Lake Michigan shoreline habitat. The entire proposed area is part actions with respect to any species that in Manitowoc County, Wisconsin. It of Headland Dunes State Nature is proposed or listed as endangered or includes areas of potential piping plover Preserve. This unit extends from the threatened and with respect to its nesting habitat. The entire proposed eastern boundary line of Headland proposed or designated critical habitat. area is part of the Point Beach State Dunes Nature Preserve to the western Regulations implementing this Forest. This unit extends from the boundary of the Nature Preserve and interagency cooperation provision of the southwest property boundary of Point Headland Dunes State Park. Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Beach State Forest to Rawley Point. Pennsylvania Federal agencies to confer with us on Illinois Unit PA–1: Gull Point Natural Area, any action that is likely to jeopardize Unit IL–1: Illinois Beach State Park / Presque Isle State Park the continued existence of a proposed Nature Preserve to Waukegan Beach species or result in destruction or This unit encompasses approximately adverse modification of proposed This unit encompasses approximately 1.5 km (0.9 mi) of Lake Erie shoreline critical habitat. If a species is listed or 10.2 km (6.3 mi) of Lake Michigan in Erie County, Pennsylvania. It critical habitat is designated, section shoreline in Lake County, Illinois. It includes foraging areas for transient 7(a)(2) requires Federal agencies to includes areas that were historically piping plovers and areas that were ensure that activities they authorize, occupied by piping plovers. historically occupied. Approximately fund, or carry out are not likely to Approximately 4.7 km (2.9 mi) are part 1.1 km (0.7 mi) are part of the Presque jeopardize the continued existence of of the Illinois Beach State Park and Isle State Park, and the remaining 0.4 the species or to destroy or adversely Nature Preserve, approximately 1.3 km km (0.2 mi) is U.S. Coast Guard modify its critical habitat. If a Federal (0.8 mi) are municipal property (Zion property. This unit extends from the action may affect a listed species or its municipal park and Waukegan lighthouse north of Peninsula Drive on critical habitat, the responsible Federal municipal beach), and the remaining 4.2 the north side of Presque Isle to the agency must consult with us. km (2.6 mi) are privately owned. This breakwall south of the Coast Guard When we issue a biological opinion unit extends from 17th Street and the Station on Thompson Bay. It includes concluding that a Federal action is Lake Michigan shoreline in Illinois any new beach habitat that may accrete likely to result in the destruction or Beach State Park to the Waukegan Beach along the present shoreline portion of adverse modification of critical habitat, breakwall at North Beach Park. the unit. we also provide reasonable and prudent Indiana New York alternatives to the project, if any are identifiable. Reasonable and prudent Unit IN–1: Indiana Dunes National Unit NY–1: Salmon River to Stony Point alternatives are defined at 50 CFR Lakeshore and Indiana Dunes State Park 402.02 as alternative actions identified Beaches This unit encompasses approximately 27.4 km (17 mi) of Lake Ontario during consultation that can be This unit encompasses approximately shoreline in Jefferson and Oswego implemented in a manner consistent 10.5 km (6.5 mi) of Lake Michigan Counties, New York. It includes areas with the intended purpose of the action, shoreline in Porter County, Indiana. It that were historically occupied by that are consistent with the scope of the includes areas that were historically piping plovers. Approximately 12.4 km Federal agency’s legal authority and occupied by piping plovers. (7.7 mi) are State land (New York State jurisdiction, that are economically and Approximately 5 km (3.1 mi) are part of Department of Environmental technologically feasible, and that we Indiana Dunes State Park and the Conservation (DEC) Wildlife believe would avoid resulting in the remaining 5.5 km (3.4 mi) are part of Management Area/ New York DEC destruction or adverse modification of Indiana Dunes National Lakeshore. This Unique Area and New York State Park), critical habitat. Reasonable and prudent unit extends from the Burns Harbor approximately 14.6 km (9.1 mi) are alternatives can vary from slight project eastern breakwall along the Indiana privately owned, and the remaining 0.4 modifications to extensive redesign or Dunes State Park to Kemil Road at km (0.2 mi) belong to The Nature relocation of the project. Costs Beverly Shores. Conservancy. This unit extends from the associated with implementing a Ohio mouth of the Salmon River to the reasonable and prudent alternative are Eldorado Road. similarly variable. Unit OH–1: Sheldon Marsh Regulations at 50 CFR 402.16 require This unit encompasses approximately Effects of Critical Habitat Designation Federal agencies to reinitiate 3.2 km (2.0 mi) of Lake Erie shoreline Section 7 Consultation consultation on previously reviewed in Erie County, Ohio. It includes areas actions in instances where critical that are used by transient piping plovers Section 7(a) of the Act requires all habitat is subsequently designated and and potential nesting habitat. Federal agencies to ensure that actions the Federal agency has retained Approximately 1.2 km (0.7 mi) are part they fund, authorize, or carry out are not discretionary involvement or control of Sheldon Marsh State Nature Preserve, likely to destroy or adversely modify over the action or such discretionary and the remaining 2.0 km (1.2 mi) are critical habitat. Individuals, involvement or control is authorized by privately owned land. This unit extends organizations, States, tribes, local law. Consequently, some Federal from the mouth of Sawmill Creek to the governments, and other non-Federal agencies may request reinitiation of western property boundary of Sheldon entities are affected by the designation consultation or conferencing with us on Marsh State Natural Area. of critical habitat only if their actions actions for which formal consultation occur on Federal lands, require a has been completed, if those actions Unit OH–2: Headland Dunes Federal permit, license, or other may affect designated critical habitat or This unit encompasses approximately authorization, or involve Federal adversely modify or destroy proposed 0.8 km (0.5 mi) of Lake Erie shoreline funding. critical habitat.
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We may issue a formal conference agencies from jeopardizing the months. Some of these closures may be report on proposed critical habitat if continued existence of a listed species voluntary by governmental and private requested by a Federal agency. Formal or destroying or adversely modifying the land managers. Most closures would conference reports on proposed critical listed species’ critical habitat. Actions end prior to the time the public would habitat contain a biological opinion that likely to ‘‘jeopardize the continued frequent these beaches. Designation of is prepared according to 50 CFR 402.14, existence’’ of a species are those that critical habitat for piping plovers as if the proposed critical habitat were would appreciably reduce the breeding in the Great Lakes notifies the already designated. Conference reports, likelihood of the species’ survival and U.S. Army Corps of Engineers, other required for species proposed for listing recovery. Actions likely to ‘‘destroy or permitting agencies, and the public that as threatened or endangered, or for adversely modify’’ critical habitat are the Clean Water Act section 404 proposed critical habitat designations, those that would appreciably reduce the nationwide permits and other Federal provide conservation recommendations value of critical habitat for the survival authorizations for activities within these to assist the agency in eliminating and recovery of the listed species. designated critical habitat areas must conflicts that may be caused by the Common to both definitions is an comply with section 7 consultation agency’s proposed action. The appreciable detrimental effect on both requirements. For each section 7 conservation recommendations in a survival and recovery of a listed species. consultation, we will review the direct conference report are advisory. We may Given the similarity of these definitions, and indirect effects of the proposed adopt the formal conference report as the effects of destruction or adverse projects on piping plovers and their the biological opinion when the critical modification of critical habitat would critical habitat. habitat is designated, if no significant almost always be reflected in the effects Relationship to Incidental Take Permits new information or changes in the on the species itself when the area of the Issued Under Section 10 Federal action alter the content of the proposed action is occupied by the opinion (see 50 CFR 402.10(d)). species concerned. Designation of One habitat conservation planning Section 4(b)(8) of the Act requires us critical habitat in areas occupied by the effort is currently in progress within the to evaluate briefly in any proposed or piping plover is not likely to result in range of the Great Lakes breeding final regulation that designates critical regulatory protection of the species population of piping plovers. The Magic habitat those activities that may above that already in place due solely to Carpet Woods Association applied to adversely modify such habitat or may be the presence of the listed species. the Service for an Incidental Take affected by such designation. Activities However, designation of critical habitat Permit for the piping plover. Incidental that may destroy or adversely modify in areas that are not known to be take is a potential indirect result of the critical habitat include those that alter occupied by this species may result in applicant’s proposed residential the primary constituent elements to the additional consultations between us and development along a 0.8 km (0.5 mi) extent that the value of critical habitat other Federal agencies; these additional section of Lake Michigan beach in for both the survival and recovery of the consultations may affect Federal actions Leelanau County, Michigan. A Habitat Great Lakes breeding population of the beyond those that are already affected Conservation Plan (HCP) submitted with piping plover is appreciably by the listing of the piping plover as the application will likely avoid or diminished. In the case of occupied endangered. minimize incidental take of piping habitat, such activities may also Federally funded, permitted, or plovers. The proposed development jeopardize the continued existence of authorized activities that could falls within proposed piping plover the Great Lakes population of piping adversely affect critical habitat of the critical habitat; however, no plovers. In the case of unoccupied Great Lakes breeding population of the construction is proposed on the beach habitat, such activities may alter the piping plover include, but are not portion of the property. We will ability of an area to develop the primary limited to the following: (1) Marina and continue to work with the applicant so constituent elements. boat launch construction and as to prevent the project from adversely An activity will likely not adversely maintenance; (2) harbor dredging and modifying or destroying proposed modify critical habitat within a dredge spoil placement and disposal; (3) critical habitat. The beach on this designated critical habitat unit if the fill of interdunal wetlands for residence, property currently does not constitute specific area does not contain any driveway, or other construction; (4) piping plover nesting habitat, but likely primary constituent elements. For waste-water discharge from provides foraging habitat and potential example, existing areas such as parking communities; (5) all-terrain vehicular nesting habitat. lots, paved roads, and various kinds of activity on beaches or the construction In the event that additional HCPs human-built structures within critical of facilities that increase such activity; covering the Great Lakes piping plover habitat unit boundaries would not (6) beach stabilization activities that are developed in the future within the furnish habitat or biological features for impede natural overwash processes proposed critical habitat, we will work piping plovers. Furthermore, some including beach nourishment, planting with applicants to ensure the HCPs activities would not be restricted by of vegetation, and construction and provide for protection and management critical habitat designation because they maintenance of seawalls, breakwaters, of habitat areas essential for the would have no adverse effect on the and other off-shore stabilizing devices; conservation of the piping plover, while primary constituent elements or the and (7) sale, exchange, or lease of directing development and habitat ability of an area to develop those Federal land that contains suitable modification to nonessential areas of elements. habitat that is likely to result in the lower habitat value. The HCP To properly portray the effects of habitat being destroyed or appreciably development process provides an critical habitat designation, we must degraded. Additionally, public access opportunity for more intensive data first compare the section 7 requirements may be temporarily or seasonally collection and analysis regarding the for actions that may affect critical restricted on beaches having a Federal use of particular habitat areas by the habitat with the requirements for nexus in order to determine which areas piping plover. The process also enables actions that may affect a listed species. may be utilized for nesting. These us to conduct detailed evaluations of the Section 7 prohibits actions funded, beaches could be closed to assess the importance of such lands to the long- authorized, or carried out by Federal use by piping plovers in the spring term survival of the species. We fully
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Individual respondents may request that section of the preamble helpful in they continue to be bound by the we withhold their home address from understanding the rule? What else could provisions of the Act concerning ‘‘take’’ the rulemaking record, which we will we do to make the proposed rule easier of the species). honor to the extent allowable by law. In to understand? Designation of unoccupied areas as Send a copy of any comments that some circumstances, we would critical habitat may have impacts on concern how we could make this withhold from the rulemaking record a what actions may or may not be proposed rule easier to understand to: respondent’s identity, as allowable by conducted by Federal agencies or non- Office of Regulatory Affairs, Department law. If you wish for us to withhold your Federal persons that receive Federal name and/or address, you must state of the Interior, Room 7229, 1849 C authorization or funding, but we expect this request prominently at the Street, NW, Washington, DC 20240. You little additional impact from designating beginning of your comment. However, may e-mail your comments to this these areas as critical habitat. We will we will not consider anonymous address: [email protected]. evaluate this impact through our comments. We will make all Required Determinations submissions from organizations or economic analysis (see Economic businesses, and from individuals Regulatory Planning and Review Analysis section of this rule). identifying themselves as In accordance with Executive Order (b) This rule will not create representatives or officials of 12866, this document is a significant inconsistencies with other agencies’ organizations or businesses, available rule and has been reviewed by the actions. As discussed above, Federal for public inspection in their entirety. Office of Management and Budget agencies have been required to ensure All comments, including written and e- (OMB), under Executive Order 12866. that their actions do not jeopardize the mail, must be received by September 5, (a) This rule will not have an annual continued existence of piping plovers 2000. economic effect of $100 million or more since the listing in 1985. The In accordance with our policy or adversely affect an economic sector, prohibition against adverse modification published on July 1, 1994 (59 FR productivity, jobs, the environment, or of critical habitat is not expected to 34270), we will seek the expert opinions other units of government. The Great impose any additional restrictions to of at least three appropriate and Lakes breeding population of piping those that currently exist in occupied independent specialists regarding this plover was listed as an endangered areas of proposed critical habitat. proposed rule. The purpose of such species in 1985. In fiscal years 1992 Additional restrictions may be imposed review is to ensure listing and critical through 1999, we conducted only one in unoccupied areas proposed as critical habitat decisions are based on formal section 7 consultation with other habitat; we will evaluate this possibility scientifically sound data, assumptions, Federal agencies to ensure that their through our economic analysis. Because and analyses. We will send these peer actions would not jeopardize the of the potential for impacts on other reviewers copies of this proposed rule continued existence of the piping Federal agency activities, we will immediately following publication in plover. continue to review this proposed action the Federal Register. We will invite Approximately 255 km (159 mi) of the for any inconsistencies with other these peer reviewers to comment, areas encompassing proposed critical Federal agency actions. during the comment period, on the habitat for the Great Lakes breeding (c) This rule will not materially affect specific assumptions and conclusions population of piping plovers are entitlements, grants, user fees, loan regarding the proposed designation of currently unoccupied by piping plovers. programs, or the rights and obligations critical habitat. The remaining 49 km (30 mi) of the total of their recipients. Federal agencies are We will consider all comments and designated critical habitat area are currently required to ensure that their information received during the 60-day currently occupied by piping plovers. activities do not jeopardize the comment period on this proposed rule Under the Act, critical habitat may not continued existence of the species, and, during preparation of a final be adversely modified or destroyed by a as discussed above, we do not anticipate rulemaking. Accordingly, the final Federal agency action; critical habitat that the adverse modification decision may differ from this proposal. does not impose any restrictions on prohibition (resulting from critical non-Federal persons unless they are Clarity of the Rule habitat designation) will have any conducting activities funded or additional effects in areas of occupied Executive Order 12866 requires each otherwise sponsored or permitted by a habitat. The critical habitat designation agency to write regulations/notices that Federal agency (see Table 3 below). may have some additional effects on the are easy to understand. We invite your Section 7 requires Federal agencies to unoccupied areas of proposed critical comments on how to make this ensure that they do not jeopardize the habitat. We will review the effects of proposed rule easier to understand continued existence of the species. including answers to questions such as The designation of currently occupied this proposed action on Federal the following: (1) Are the requirements areas as critical habitat does not have agencies or non-Federal persons that in the rule clearly stated? (2) Does the any incremental impacts on what receive Federal authorization or funding rule contain technical language or actions may or may not be conducted by in the area of critical habitat with jargon that interferes with the clarity? Federal agencies or non-Federal persons unknown occupancy. (3) Does the format of the rule (grouping that receive Federal authorization or (d) This rule will not raise novel legal and order of sections, use of headings, funding. Non-Federal persons that do or policy issues. The proposed rule paragraphing, etc.) aid or reduce its not have a Federal ‘‘sponsorship’’ of follows the requirements for clarity? (4) Is the description of the rule their actions are not restricted by the determining critical habitat contained in in the SUPPLEMENTARY INFORMATION designation of critical habitat (however, the Endangered Species Act.
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TABLE 3.ÐACTIVITIES POTENTIALLY IMPACTED BY PIPING PLOVER LISTING AND CRITICAL HABITAT DESIGNATION
Categories of activities Activities potentially affected Additional activities potentially affected by species listing only 1 by critical habitat designation 2
Federal Activities Potentially Affected 3 ...... Direct take and activities such as removing or None in occupied habitat. In unoccupied habi- destroying piping plover breeding habitat, tat, no additional types of activities will be whether by mechanical, chemical, or other affected, but consultation will be required means (e.g., construction, road building, on these activities in additional areas. boat launch and marina construction or maintenance, beach nourishment); rec- reational activities that significantly deter the use of suitable habitat areas by piping plovers or alter habitat through associated maintenance activities (e.g., off-road vehicle parks, paved walking paths); sale, ex- change, or lease of Federal land that con- tains suitable habitat that may result in the habitat being destroyed or appreciably de- graded (e.g., shoreline development, build- ing of recreational facilities such as off-road vehicle parks, road building); activities that may result in increased human activity and disturbance.. Private and other non-Federal Activities Poten- Direct take and activities such as removing or None in occupied habitat. In unoccupied habi- tially Affected 4. destroying piping plover habitat, whether by tat, no additional types of activities will be mechanical, chemical, or other means (e.g., affected, but consultation will be required construction, road building, boat launch and on these activities by the Federal agency marina construction or maintenance, beach that regulates that Federal action in addi- nourishment) and appreciably decreasing tional areas. habitat value or quality (e.g., increased pre- dation, invasion of exotic species, increased human presence or disturbance) that re- quire a Federal action (permit, authoriza- tion, or funding). 1 This column represents the activities potentially affected by listing the piping plover as an endangered species (December 11, 1985; 50 FR 50726) under the Endangered Species Act. 2 This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by listing the species. 3 Activities initiated by a Federal agency. 4 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.
Regulatory Flexibility Act (5 U.S.C. 601 (2) Regulation of water flows, water Many of these activities sponsored by et seq.) delivery, and diversion by Federal Federal agencies within the proposed agencies; critical habitat areas are carried out by In the economic analysis, we will (3) Sale, exchange, or lease of lands small entities (as defined by the determine whether designation of owned by a Federal agency; Regulatory Flexibility Act) through critical habitat will have a significant (4) Road construction and contract, grant, permit, or other Federal effect on a substantial number of small maintenance and right-of-way authorization. As discussed above, these entities. As discussed under Regulatory designation; (5) Funding of low-interest loans to actions are currently required to comply Planning and Review above, this rule is with the listing protections of the Act, not expected to result in any restrictions facilitate the construction of low-income housing by the Department of Housing and the designation of critical habitat is in addition to those currently in not anticipated to have any additional existence for areas of occupied critical and Urban Development; (6) Hazard mitigation and post- effects on these activities in areas of habitat. However, we would expect disaster repairs funded by the Federal critical habitat occupied by the species. additional restrictions in areas of Emergency Management Agency; We expect little additional effect for the unoccupied habitat. As indicated on (7) Promulgation of air and water unoccupied areas of proposed critical Table 1 (see Proposed Critical Habitat quality standards under the Clean Air habitat. In the economic analysis, we Designation section), we designated Act and the Clean Water Act and the will evaluate whether designation of property owned by Federal, State, tribal, cleanup of toxic waste and superfund critical habitat in the unoccupied areas and local governments, and private sites under the Resource Conservation will have an effect on activities carried property. and Recovery Act (RCRA) and the out by small entities. Comprehensive Environmental Within these areas, the types of For actions on non-Federal property Federal actions or authorized activities Response, Compensation, and Liability Act by the U.S. Environmental that do not have a Federal connection that we have identified as potentially (such as funding or authorization), the adversely modifying critical habitat are: Protection Agency; (8) Issuance of Endangered Species current restrictions concerning take of (1) Regulation of activities affecting Act section 10(a)(1)(B) permits by the the species remain in effect, and this waters of the United States by the U.S. Fish and Wildlife Service; and rule will have no additional restrictions. Army Corps of Engineers under section (9) Activities funded, carried out, or 404 of the Clean Water Act; authorized by any Federal agency.
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Small Business Regulatory Enforcement appropriate State agencies. The at 512 DM 2, we understand that we Fairness Act (5 U.S.C. 804(2)) designation of critical habitat for the must coordinate with recognized In the economic analysis, we will piping plover imposes few additional Federal Tribes on a Government-to- determine whether designation of restrictions to those currently in place Government basis. We believe that critical habitat will cause (a) any effect and, therefore, has little incremental certain Tribal lands are essential for the on the economy of $100 million or impact on State and local governments conservation of the piping plover more, (b) any increases in costs or prices and their activities. The designation because they support essential for consumers, individual industries, may have some benefit to these populations and habitat. Therefore, we Federal, State, or local government governments in that the areas essential are considering designating critical agencies, or geographic regions, or (c) to the conservation of the species are habitat for the piping plover on Tribal any significant adverse effects on more clearly defined and the primary lands. We may exclude areas from competition, employment, investment, constituent elements of the habitat critical habitat upon a determination productivity, innovation, or the ability necessary to the conservation of the that the benefits of such exclusions of U.S.-based enterprises to compete species are specifically identified. While outweigh the benefits of specifying such with foreign-based enterprises. making this definition and areas as critical habitat according to identification does not alter where and section 4(b)(2) of the Act. However, we Unfunded Mandates Reform Act (2 what federally sponsored activities may cannot exclude such areas from critical U.S.C. 1501 et seq.) occur, doing so may assist these local habitat if doing so will result in the In accordance with the Unfunded governments in long-range planning extinction of the species. Due to the Mandates Reform Act (2 U.S.C. 1501 et (rather than waiting for case-by-case short amount of time allowed under the seq.): section 7 consultations to occur). court order for preparing this proposed (a) This rule will not ‘‘significantly or rule, we have not yet completed Civil Justice Reform uniquely’’ affect small governments. A consultation with the affected Tribe, but Small Government Agency Plan is not In accordance with Executive Order we will do so before making a final required. Small governments will be 12988, the Office of the Solicitor has decision on critical habitat. affected only to the extent that any of determined that the rule does not their actions involving Federal funding unduly burden the judicial system and Public Hearings or authorization must not destroy or meets the requirements of sections 3(a) We have scheduled seven public adversely modify the critical habitat in and 3(b)(2) of the Order. We designate hearings at the following addresses on areas where they have not previously critical habitat in accordance with the the dates indicated. undergone consultation not to provisions of the Act and plan public 1. Newberry, MI on July 19, 2000, at jeopardize the species. hearings on the proposed designation Newberry High School Auditorium, 700 (b) This rule will not produce a during the comment period. The rule Newberry Avenue. Federal mandate of $100 million or uses standard property descriptions and 2. Traverse City, MI on July 20, 2000, greater in any year, i.e., it is not a identifies the primary constituent at Grand Traverse Civic Center, 1213 ‘‘significant regulatory action’’ under elements within the designated areas to West Civic Center Drive. the Unfunded Mandates Reform Act. assist the public in understanding the 3. Ashland, WI on July 17, 2000, at the Northern Great Lakes Center, 29270 Takings habitat needs of the Great Lakes breeding population of piping plover. County Highway G. In accordance with Executive Order 4. Green Bay, WI on July 18, 2000, at 12630, this rule does not have Paperwork Reduction Act of 1995 (44 Brown County Central Library, 515 Pine significant takings implications, and a U.S.C. 3501 et seq.) Street. takings implication assessment is not This rule does not contain any 5. Indiana Dunes National Lakeshore, required. This proposed rule, if made information collection requirements for IN on July 24, 2000, at the Dorothy Buell final, will not ‘‘take’’ private property. which Office of Management and Memorial Visitors Center, just west of Critical habitat designation is applicable Budget approval under the Paperwork Beverly Shores on Kemil Road between only to Federal lands and to private Reduction Act is required. U.S. Highways 12 and 20. lands if a Federal nexus exists. We do 6. Cleveland, OH on July 25, 2000, at not designate private lands as critical National Environmental Policy Act The Great Lakes Science Center, 601 habitat unless the areas are essential to We have determined that we do not Erieside Avenue. the conservation of a species. need to prepare an Environmental 7. Watertown, NY on July 27, 2000, at Assessment and/or an Environmental Dulles State Office Building, 317 Federalism Impact Statement as defined by the Washington Street, 1st Floor Conference In accordance with Executive Order National Environmental Policy Act of Room. 13132, the rule does not have significant 1969 in connection with regulations All comments that we receive at these Federalism effects. A Federalism adopted pursuant to section 4(a) of the hearings, both verbal and written, will assessment is not required. In keeping Act. We published a notice outlining be considered prior to making our with Department of the Interior and our reasons for this determination in the decision on critical habitat designation. Department of Commerce policy, the Federal Register on October 25, 1983 Copies of the transcripts from the Service requested information from and (48 FR 49244). hearings will be available for review by coordinated development of this critical scheduling an appointment during Government-to-Government habitat proposal with appropriate State normal business hours at the locations Relationship With Tribes resource agencies in Minnesota, given above (see ADDRESSES section). Wisconsin, Michigan, Illinois, Indiana, In accordance with the President’s Ohio, Pennsylvania, and New York, as memorandum of April 29, 1994, References Cited well as during the listing process. We ‘‘Government-to-Government Relations A complete list of all references cited will continue to coordinate any future with Native American Tribal in this proposed rule is available upon designation of critical habitat for the Governments’’ (59 FR 22951) and the request from the Fort Snelling Regional Great Lakes piping plover with the Department of the Interior’s requirement Office (see ADDRESSES section).
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Author: The primary author of this Proposed Regulations Promulgation Authority: 16 U.S.C. 1361–1407; 16 U.S.C. notice is Laura J. Ragan (see ADDRESSES 1531–1544 16 U.S.C. 4201–4245; Pub. L. 99– section). For the reasons given in the preamble, 625, 100 Stat. 3500; unless otherwise noted. we propose to amend 50 CFR part 17 as 2. In § 17.11(h) revise the entry for List of Subjects in 50 CFR Part 17 set forth below: ‘‘Plover, piping’’ under ‘‘BIRDS’’ to read as follows: Endangered and threatened species, PART 17Ð[AMENDED] Exports, Imports, Reporting and § 17.11 Endangered and threatened recordkeeping requirements, 1. The authority citation for part 17 wildlife. Transportation. continues to read as follows: * * * * * (h) * * *
Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules
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BIRDS
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Plover, piping ...... Charadrius melodus U.S.A. (Great Lakes, Great Lakes water- E 211 17.95(b) NA northern Great shed in States of Plains, Atlantic and IL, IN, MI, MN, Gulf coasts, PR, NY, OH, PA, and VI), Canada, Mex- WI and Canada ico, Bahamas, (Ont.). West Indies.
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3. In § 17.95, add critical habitat for Muskegon Counties, Michigan, on the maps treeline (from the normal high water line to the Great Lakes piping plover below. where the forest begins) is more than 50 m (Charadrius melodus) under paragraph 2. The primary constituent elements (165 ft). Beach width is defined as the (b) in the same alphabetical order as this required to sustain the Great Lakes breeding distance from the normal high water line to population of the piping plover are found on the foredune (a low barrier dune ridge species occurs in § 17.11 (h) to read as Great Lakes islands and mainland shorelines immediately inland from the beach) edge or follows: that support, or have the potential to support, open, sparsely vegetated sandy habitats— sand/vegetation boundary in areas where the § 17.95 Critical habitat-fish and wildlife. sand spits or sand beaches associated with dune is absent. The beach width may be * * * * * wide, unforested systems of dunes and inter- narrower than 7 m (23 ft) if appropriate sand (b) Birds. dune wetlands. In order for habitat to be and cobble areas of at least 7 m (23 ft) exist * * * * * physically and biologically suitable for between the dune and the treeline. Protective piping plovers, it must have a total shoreline cover for nests and chicks consists of small PIPING PLOVER (Charadrius melodus)— length of at least 0.2 kilometers (km) (0.12 patches of herbaceous vegetation, cobble Great Lakes Breeding Population miles (mi)) of gently sloping, sparsely (stones larger than 1 cm (0.39 inches (in)) 1. Critical habitat units are depicted for St. vegetated (less than 50 percent herbaceous diameter), gravel (stones smaller than 1 cm Louis County, Minnesota; Douglas, Ashland, and low woody cover) sand beach with a (0.39 in) diameter), or debris such as Marinette, Oconto, and Manitowoc Counties, total beach area of at least 2 hectares (5 acres) driftwood, wrack, root masses, or dead Wisconsin; Lake County, Illinois; Porter and a low level of disturbance from human shrubs. County, Indiana; Erie and Lake Counties, activities and from domestic animals. These Ohio; Erie County, Pennsylvania; Oswego appropriately sized sites must also have areas 3. Critical habitat does not include existing and Jefferson Counties, New York; and Alger, of at least 50–100 meters (m) (165–330 feet developed sites consisting of buildings, Schoolcraft, Luce, Mackinac, Chippewa, (ft)) in length where (1) the beach width is marinas, paved areas, boat ramps, and similar Iosco, Presque Isle, Cheboygan, Emmet, more than 7 m (23 ft), (2) there is cover for structures. Charlevoix, Leelanau, Benzie, Mason, and nests and chicks, and (3) the distance to the BILLING CODE 4310±55±P
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Dated: June 28, 2000. Donald J. Barry, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 00–16815 Filed 6–30–00; 9:00 am] BILLING CODE 4310±55±C
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