Tuesday, July 10, 2001
Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Determinations of Critical Habitat for Wintering Piping Plovers; Final Rule
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DEPARTMENT OF THE INTERIOR ADDRESSES: The complete Piping plovers winter in coastal areas administrative record for this rule is on of the United States from North Carolina Fish and Wildlife Service file at the U.S. Fish and Wildlife to Texas. They also winter along the Service, Ecological Services Field coast of eastern Mexico and on 50 CFR Part 17 Office, TAMUCC, Box 338, 6300 Ocean Caribbean islands from Barbados to RIN 1018–AG13 Drive, Corpus Christi, Texas, 78412. Cuba and the Bahamas (Haig 1992). The You may view the complete file for this international piping plover winter Endangered and Threatened Wildlife rule, by appointment, during normal censuses of 1991 and 1996 located only and Plants; Final Determination of business hours at the above address. 63 percent and 42 percent of the Critical Habitat for Wintering Piping Copies of the final economic analysis estimated number of breeding birds, Plovers and information regarding this critical respectively (Haig and Plissner 1993, habitat designation are available on the Plissner and Haig 1997). Of the birds AGENCY: Fish and Wildlife Service, Internet at http://plover.fws.gov. located on the United States wintering Interior. FOR FURTHER INFORMATION CONTACT: grounds during these two censuses, 89 ACTION: Final rule. Allan Strand, Acting Field Supervisor, percent were found on the Gulf Coast and 8 percent were found on the SUMMARY: We, the Fish and Wildlife at the above address (telephone 361/ Atlantic Coast. Information from Service (Service), designate 137 areas 994–9005; facsimile 361/994–8262; observation of color-banded piping along the coasts of North Carolina, email [email protected]). plovers indicates that the winter ranges South Carolina, Georgia, Florida, SUPPLEMENTARY INFORMATION: of the breeding populations overlap to a Alabama, Mississippi, Louisiana, and Background significant degree. Therefore, the source Texas as critical habitat for the breeding population of a given wintering population of the piping Description wintering individual cannot be plover (Charadrius melodus). This The piping plover (Charadrius determined in the field unless it has includes approximately 2,891.7 melodus), named for its melodic mating been banded or otherwise marked. kilometers (km) (1,798.3 miles (mi)) of call, is a small, pale-colored North Piping plovers begin arriving on the mapped shoreline and approximately American shorebird. It weighs 43–63 wintering grounds in July, with some 66,881 hectares (ha) (165,211 acres (ac)) grams (1.5–2.25 ounces) and is 17–18 late-nesting birds arriving in September. of mapped area along the Gulf and centimeters (cm) (about 8 inches) long A few individuals can be found on the Atlantic coasts and along margins of (Haig 1992). Its light sand-colored wintering grounds throughout the year, interior bays, inlets, and lagoons. plumage blends in well with beaches but sightings are rare in late May, June, The population of piping plovers that and sand flats, part of its primary and early July. Migration is poorly breeds in the Great Lakes States is listed habitat. During the breeding season, the understood, but most piping plovers as endangered, while all other piping legs are bright orange, and the short probably migrate non-stop from interior plovers are threatened species under the stout bill is orange with a black tip. breeding areas to wintering grounds Endangered Species Act of 1973, as There are two single dark bands, one (Haig 1992). However, concentrations of amended (Act). All piping plovers are around the neck and one across the spring and fall migrants have been considered threatened species under the forehead between the eyes. Plumage and observed along the Atlantic Coast Act when on their wintering grounds. leg color help distinguish this bird from (USFWS 1996). Critical habitat identifies specific areas other plovers. In winter, the bill turns Behavioral observations of piping that are essential to the conservation of black, the legs remain orange but pale, plovers on the wintering grounds a listed species, and that may require and the black plumage bands on the suggest that they spend the majority of special management considerations or head and neck are lost. Chicks have their time foraging (Nicholls and protection. The primary constituent speckled gray, buff, and brown down, a Baldassarre 1990b; Drake 1999a, 1999b). elements for the piping plover wintering black beak, orange legs, and a white Primary prey for wintering plovers habitat are those habitat components collar around the neck. Juveniles includes polychaete marine worms, that are essential for the primary resemble wintering adults and obtain various crustaceans, insects, and biological needs of foraging, sheltering, their adult plumage the spring after they occasionally bivalve mollusks (Nicholls and roosting, and only those areas fledge (Prater et al. 1977). 1989; Zonick and Ryan 1995), that they containing these primary constituent peck from on top or just beneath the Range and Biology elements within the designated surface. Foraging usually takes place on boundaries are considered critical Piping plovers breed in three discrete moist or wet sand, mud, or fine shell. In habitat. The primary constituent areas of North America: The Northern some cases, this substrate may be elements are found in coastal areas that Great Plains, the Great Lakes, and the covered by a mat of blue-green algae. support intertidal beaches and flats Atlantic Coast. The Northern Great When not foraging, plovers can be found (between annual low tide and annual Plains population historically bred from roosting, preening, bathing, in high tide) and associated dune systems Alberta to Ontario, Canada, south to aggressive encounters (with other piping and flats above annual high tide. Kansas and Colorado. While Great Lakes plovers and other species), and moving Section 7 of the Act requires Federal breeding sites once ranged throughout among available habitat locations agencies to ensure that actions they the Great Lakes region, recent nesting (Zonick and Ryan 1996). authorize, fund, or carry out are not records are limited to Michigan and The habitats used by wintering birds likely to adversely modify designated Wisconsin. Atlantic Coast breeding sites include beaches, mud flats, sand flats, critical habitat. As required by section 4 are found from Newfoundland, Canada, algal flats, and washover passes (areas of the Act, we considered economic and south to North Carolina. Generally, where breaks in the sand dunes result other relevant impacts prior to making piping plovers favor open sand, gravel, in an inlet). Individual plovers tend to a final decision on what areas to or cobble beaches for breeding. Breeding return to the same wintering sites year designate as critical habitat. sites are generally found on islands, lake after year (Nicholls and Baldassarre DATES: This final rule is effective August shores, coastal shorelines, and river 1990b, Drake 1999a). Wintering plovers 9, 2001. margins. are dependent on a mosaic of habitat
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patches, and move among these patches are regionally variable with some areas and Ontario, Canada) and as threatened depending on local weather and tidal experiencing declining populations. elsewhere within its range. The listing conditions. One study by Drake (1999a) Breeding census results show a marked includes piping plovers breeding in monitored the movement of 48 piping decline of the population breeding in Canada, with their status under the Act plovers in south Texas, for one season. the Northern Great Plains of the United determined by whether they breed in She found, using 95% of the States (Plissner and Haig 1997). the watershed of the Great Lakes documented locations, that these birds Overall winter habitat loss is difficult (endangered) or elsewhere (threatened). had a mean home range of 1,262 ha to document; however, a variety of All piping plovers on migratory routes (3,117 ac). Drake (1999) also noted that human-caused disturbance factors have outside of the Great Lakes watershed or the mean linear distance moved per been noted that may affect plover on their wintering grounds are individual bird was 3,294 m (2 mi) for survival or utilization of wintering considered threatened. We did not the fall through the spring of 1997– habitat (Nicholls and Baldassarre 1990a, designate critical habitat for the species 1998. Haig and Plissner 1993). These factors at that time. In late February, piping plovers begin include recreational activities In 1986, two U.S. recovery teams were leaving the wintering grounds to migrate (motorized and pedestrian), inlet and appointed to develop recovery plans for back to breeding sites. Northward shoreline stabilization, dredging of the piping plovers breeding in the migration peaks in late March, and by inlets that can affect spit (a small point Atlantic Coast States and those breeding late May most birds have left the of land, especially sand, running into in the Great Lakes/Northern Great Plains wintering grounds (Eubanks 1994). water) formation, beach maintenance region. We published those plans in and renourishment (renourishing the 1988 (USFWS 1988a, 1988b). In 1994, Population Status beach with sand that has been lost to we began to revise the plan for the Great In recent decades, piping plover erosion), and pollution (e.g., oil spills) Lakes/Northern Great Plains plovers by populations have declined drastically, (USFWS 1996). The peer-reviewed, developing and distributing for public especially in the Great Lakes area. In the revised recovery plan for the Atlantic comment a draft that included updated early 1900s, uncontrolled hunting drove piping plover population recognizes the information on the species. More them nearly to extinction. Protective need to protect wintering habitat from recently, we decided that the recovery legislation helped them to recover by direct and indirect impacts of shoreline of these two regional populations would 1925, and populations reached a high in stabilization, navigation projects, and benefit from separate recovery plans the 1930s (USFWS 1994). These development. Adult survivorship over that would direct separate recovery numbers soon plummeted, and numbers the wintering period plays a significant programs. Separate recovery plans for continued to decline in the 1940s and role in maintaining current populations the Great Lakes and Northern Great 1950s as shoreline development and in accomplishing increases in Plains piping plovers are presently expanded, resulting in the loss of plover population levels required to achieve under development. The recovery plan breeding habitat. River flow alteration, recovery. for the Atlantic Coast-breeding plovers channelization, and reservoir was revised in 1996 (USFWS 1996). We Previous Federal Actions construction have also led to loss of exchange observers and coordinate breeding habitat. On December 30, 1982, we published recovery activities with two Canadian In 1973, the piping plover was placed a Notice of Review in the Federal recovery teams, with a strong focus on on the National Audubon Society’s Blue Register (47 FR 58454) that identified protection of the wintering habitat List of threatened species. By that time, vertebrate animal taxa being considered shared by piping plovers breeding in the Great Lakes population of piping for addition to the List of Threatened both countries. plovers had been extirpated from and Endangered Wildlife. The notice In December 1996, Defenders of shoreline beaches in Illinois, Indiana, included the piping plover as a Category Wildlife (Defenders) filed a lawsuit Ohio, New York, Pennsylvania, 2 Candidate species, indicating that we against the Department of the Interior Minnesota, and Ontario, Canada, and believed the species might warrant and the Service for failing to designate only a few birds continued to nest in listing as threatened or endangered, but critical habitat for the Great Lakes Wisconsin (Russell 1983) and Michigan. that we had insufficient data to support population of the piping plover. The Canadian Committee on the Status a listing at that time. Subsequent review Defenders filed a second, similar of Endangered Wildlife in Canada of additional data indicated that the lawsuit for the Northern Great Plains designated the piping plover as piping plover warranted listing, and in piping plover population in 1997. These ‘‘Threatened’’ in 1978 and elevated the November 1984, we published a lawsuits were subsequently combined species’’ status to ‘‘Endangered’’ in 1985 proposal to list the piping plover as (Defenders of Wildlife et al. v. Bruce (Canadian Wildlife Service 1989). At the endangered (Great Lakes breeding Babbitt et al., Consolidated Cases Civil time the species was listed under the population) and threatened (all other No. 1:96–CV–02695AER and Civil No. Act in 1985, the Great Lakes population piping plovers, including all birds on 1:97–CV00777AER). In February 2000, numbered only 17 known breeding non-breeding areas) in the Federal the court issued an order directing us to pairs, and the breeding areas had been Register (49 FR 44712). publish a proposed critical habitat reduced from sites in eight States to The proposed listing was based on the designation for the Great Lakes only northern Michigan (Stucker and decline of the species and the population of the piping plover by June Cuthbert, unpublished data). In recent magnitude of existing threats, including 30, 2000. Publication of a proposal for years, the Great Lakes population has habitat destruction, disturbance by nesting areas of the Northern Great gradually increased and expanded to the humans and pets, high levels of Plains population of piping plover by south and west as a result of intensive predation, and contaminants. On May 31, 2001, was also ordered. Since conservation measures. Recent increases December 11, 1985, we published the we cannot distinguish the Great Lakes in the Atlantic Coast breeding final rule (50 FR 50720), listing the and Great Plains birds on their population have also been attributed to piping plover as endangered in the wintering grounds, we felt it was intensive management of nesting Great Lakes watershed (Illinois, Indiana, appropriate to propose critical habitat beaches. While overall the Atlantic Michigan, northeastern Minnesota, New for all U.S.-wintering piping plovers Coast population is increasing, increases York, Ohio, Pennsylvania, Wisconsin, collectively. Further, we determined
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that the appropriate course of action Summary of Comments and document. We address the rest of the would be to propose critical habitat for Recommendations substantive comments in the following all U.S.-wintering piping plovers on the As mentioned above, we requested all summary. For readers’ convenience we same schedule required, under court interested parties to submit comments have assigned comments to major issue order, for the Great Lakes breeding or information that might bear on the categories. Repeated or very similar population. A subsequent order, after designation of critical habitat for comments are combined into single requesting the court to reconsider its wintering piping plovers (65 FR 41782). comments and responses. original order relating to final critical We contacted all appropriate State and Issue A: General Biological Comments habitat designation, directed us to Federal agencies, Tribes, county A number of commenters touched on finalize the critical habitat designations governments, scientific organizations, and other interested parties and invited biological issues surrounding the piping for the Great Lakes population by April plover. 30, 2001, and for the Northern Great them to comment. In addition, we published newspaper notices inviting Comment 1: The Service’s Southeast Plains population by March 15, 2002. Region Home Page cites habitat loss due On May 7, 2001, we published a notice public comment and announcing the public hearings in the following to navigation, dredging, and shoreline in the Federal Register (66 FR 22983) stabilization and replenishment projects announcing a 60-day delay, until June newspapers—Wilmington Morning Star in North Carolina; Charleston Post and as major contributors to the species’ 29, 2001, in making our final Courier in South Carolina; Savannah decline. That statement is unsupported determination of critical habitat for the Morning News in Georgia; Florida Times in the literature. Piping plovers are wintering piping plover. The notice Union, Tallahassee Democrat, Fort extremely mobile and thrive in a explained that we needed additional Myers News Press, Key West Free Press, changing environment. The cited time to complete our analyses required St. Petersburg Times, Panama City News activities do not adversely impact under section 4(b)(2) of the Act. Herald, and Pensacola News Journal in wintering piping plovers. We published our proposed Florida; Mobile Register, Alabama; Our Response: We disagree with the designation of critical habitat for Biloxi The Sun Herald, Mississippi; statement made by the commenter. The wintering piping plovers in the Federal New Orleans Times Picayune and Baton commenter is referring to our website at http://plover.fws.gov, that describes the Register on July 6, 2000 (65 FR 41782), Rouge The Advocate in Louisiana; and life history and threats of the piping and requested comments on the the Houston Chronicle, Galveston Daily News, Port Arthur News, Texas City plover throughout its range. Dredging proposal by September 5, 2000. We held projects and shoreline manipulations in 10 public hearings and 10 public Sun, Brownsville Herald, Corpus Christi Caller-Times, The Monitor (distributed wintering areas can have an effect on meetings on the proposed rule in the bird’s food base, and result in Wilmington, North Carolina, on July 17, from Rio Grande City to South Padre Island), and the Facts (Brazosport) in permanent habitat loss and direct 2000; Savannah, Georgia, on July 19, disturbance of individual birds. We 2000; Tallahassee, Florida, on July 21, Texas. We held 10 public hearings on the already consult with Federal agencies 2000; Fort Myers, Florida, on July 24, proposed rule (see ‘‘Previous Federal that fund or carry out projects involving 2000; Mobile, Alabama, on July 26, Action’’ section above for dates and dredging, beach nourishment, and other 2000; Baton Rouge, Louisiana, on July locations). Transcripts of these hearings shoreline stabilization activities, most 27, 2000; Galveston, Texas, on July 31, are available for inspection (see notably with the Army Corps of 2000; Corpus Christi, Texas, on August ADDRESSES section). Engineers, because of the effect of such 2, 2000; McAllen, Texas, on August 4, We received a total of 6,013 projects on piping plover habitat. The 2000; and South Padre Island, Texas, on comments (counting both written and purpose of many shoreline stabilization November 14, 2000. We held additional oral comments) from individuals, projects is the prevention of overwash public meetings in Morehead City, agencies, and organizations, plus one processes (the method by which North Carolina, on August 16, 2000; in petition containing 537 signatures. Of sediment (sand) is transported across a Manteo, North Carolina, on August 17, these comments, 5,800 commenters and barrier island) that form inlets and 2000; Marco Island, Florida, on October the petition were specific to the perpetuate sand and mud flats. As sand 10, 2000; and Rio Hondo, Texas, on designation proposed for Marco Island, and mud flats are identified as critical August 23, 2000. Florida. Of the Marco Island comments, habitat for the plover, there is a connection between these activities and On August 30, 2000 (65 FR 52691), we 44 commenters and 537 signatories to the petition favored the designation as the formation and maintenance of published a notice in the Federal proposed, 5,736 opposed designation on habitat for the plover. Zonick’s (2000) Register extending the public comment Marco Island, and 20 supported a dissertation similarly highlights the period to October 30, 2000, and revised designation or only provided importance of preserving ‘‘washover announced the availability of the draft information relative to the proposal. pass’’ habitat in Texas. Zonick (2000) economic analysis. On October 27, 2000 There were 213 commenters who were found that washover passes are used by (65 FR 64414), we again published a not specific to Marco Island. Of those, piping plovers both as feeding and notice in the Federal Register extending 85 favored the designation, 94 opposed roosting areas. Washover areas are the public comment period until it, and 34 did not state a position but created by the flow of water through the (November 24), 2000, and provided provided information. primary dune line with deposition of notice of a tenth public hearing on the We reviewed all comments received sand on the barrier flats, marsh, or into proposed rule. On February 22, 2001 (66 for substantive issues and new data the lagoon, depending on the storm FR 11134), we reopened the comment regarding critical habitat and wintering magnitude and the width of the beach. period until March 1, 2001, to allow for piping plovers. Some comments Additionally, the peer-reviewed revised additional comments to be incorporated resulted in changes between the recovery plan for the Atlantic piping into the record and allow for us to base proposed and final designations, and plover population recognizes the need our final decision on the best scientific those comments are discussed in the to protect wintering habitat from direct and commercial information available. ‘‘Summary of Changes From the and indirect impacts of shoreline Proposed Rule’’ section of this stabilization, navigation projects, and
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development. In general, through our Our Response: Historically, plovers Our Response: We believe the effect of consultations with other Federal were decimated by unregulated hunting. observational bias is minimal because agencies, we have found that these The major present-day threats are ornithologists and birders are persistent activities can be timed and designed to largely on breeding areas, but wintering about seeking out birds. Data we minimize effects on piping plovers. habitats are also essential to the received from state biologists Comment 2: Army Corps of Engineers conservation of this species. Adult documented surveys of the entire projects are designed to avoid and survivorship over the wintering period coastlines in many states. Some minimize impacts to listed species and, plays a significant role in maintaining geographic data provided from the 1991 where feasible, features to promote current populations and in and 1996 International Censuses show species conservation are included in accomplishing increases in population that a large area of the coastline is not projects. Corps of Engineers dredged levels required to achieve recovery. In used by the birds. Only sites where material disposal benefits plovers by the face of current and foreseeable plovers have been observed were providing foraging habitat. These continued coastal development and included in the critical habitat benefits should have been discussed in increased recreational use, less suitable designation. the proposal. habitat may be available each year for Comment 7: One-hundred-forty-seven Our Response: We stated in the piping plover recovery. Therefore, we areas are proposed as critical habitat. proposed rule that ‘‘Several of these have designated the areas that have How could failure to designate any one components (sparse vegetation, little or consistent plover use and best meet the of these areas lead to extinction of the no topographic relief) are mimicked in biological needs of the species. The piping plover? artificial habitat types used less amount of wintering habitat included in Our Response: The criterion for commonly by piping plovers (e.g., this designation appears sufficient to critical habitat designations is not dredge spoil sites).’’ Nicholls (1989) support future recovered populations, whether the sites are essential to documented that piping plovers were and the existence of this habitat is prevent extinction; it is whether the observed on spoil areas 6 percent of the essential to the conservation of this sites are essential to the conservation of time and on sandflats 27 percent of the species. In addition, the designation the species and may require special time. Her survey coverage included benefits species conservation by alerting management consideration or 2,705 km (1,680 mi) of coastline along public and private entities to the protection. Conservation means the use portions of nine states from Virginia to importance of wintering habitat. of all methods and procedures that are Texas. Spoil sites do not seem to be the Comment 5: Comments were received necessary to bring an endangered or preferred habitat for the piping plover, that questioned the relative use of a threatened species to the point at which specific area compared to the overall although when more suitable habitat is listing under the Act is no longer population abundance. Of the 50 lacking, spoil sites do create some necessary (i.e., recovered). Subsection percent of piping plovers accounted for habitat for these birds. We appreciate 4(b)(2) of the Act allows us to exclude in the 1996 census, only 8 percent were the Corps’ efforts to promote species areas from critical habitat designation documented on the Atlantic Coast. How conservation through design feature where the benefits of exclusion can the Atlantic Coast be considered modification of projects. outweigh the benefits of designation, essential to the species’ conservation? Comment 3: Project delays related to Our Response: We have determined provided the exclusion will not result in the critical habitat designation for that most sites with consistent the extinction of the species. wintering piping plovers, when added occurrence of piping plovers should be There are an estimated 32 pairs to already-narrow windows imposed by designated as critical habitat in order to remaining of the endangered Great protection of other threatened and provide for the recovery of the species. Lakes breeding population of piping endangered species such as sea turtles, There are an estimated 32 pairs plovers and data show that this seabeach amaranth, and beach mice, remaining of the endangered Great population uses both the Atlantic and may affect the Corps of Engineers’ Lakes breeding population of piping Gulf Coasts (USFWS 1999; Wemmer ability to conduct mission-related plovers. Current data shows that 2000). Therefore, identification of activities. Atlantic Coast sites are even more essential habitat should not rule out any Our Response: Since the species was important to the Great Lakes piping sites where piping plovers consistently listed in 1986, the Corps of Engineers plovers than those on the Gulf Coast. Of over-winter, since these sites may be has been subject to the consultation the 39 individuals from the Great Lakes used by the highly endangered Great requirements of the Act, including population sighted on the wintering Lakes population. We have determined analyzing the potential effects on the ground between 1993 and spring of that most sites with consistent species habitat. Timing of projects has 2000, 26 (67%) were in South Carolina, occurrence of piping plovers should be been considered in consultations Georgia, or the Atlantic Coast of Florida designated as critical habitat in order to conducted under the jeopardy standard (Wemmer 2000). Thus, we consider the provide for the recovery of the species. since listing, and, in general, we have Atlantic Coast to be essential to the Comment 8: The Service should found that projects can be timed and recovery of the piping plover. define ‘‘wintering.’’ Does the designed to minimize effects on piping Comment 6: In basing the critical designation include migrating piping plovers. habitat designation on observational plovers? Comment 4: The causes for piping data, the proposal is biased toward areas Our Response: We define ‘‘wintering’’ plover declines are unclear, but it is most frequently visited by bird watchers as areas used by birds during the non- likely any declines are a result of threats and other beach users. Meanwhile, breeding season. Piping plovers begin to breeding areas rather than wintering many areas with restricted access but arriving on the wintering grounds in habitat. Threats to wintering habitat are likely containing excellent habitat were July, with some late-nesting birds not discussed, nor are any declines in not proposed. Given that situation and arriving in September. A few habitat acreage documented. the fact that 50 percent of wintering individuals can be found on the Accordingly, how can the designation plovers are unaccounted for, how can wintering grounds throughout the year, possibly benefit wintering piping the Service say the proposed areas are but sightings are rare in late May, June, plovers? essential for this species? and early July.
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This designation did not distinguish as having the second highest numbers of Mapping and Primary Constituent migrating birds; however, some areas wintering piping plovers after Texas. Elements.’’). designated as wintering habitat are also Since publication of the proposed rule In order to capture the dynamic used by migrating and breeding birds in we were able to conduct surveys in the nature of the coastal habitat and the North Carolina and South Carolina. remote deltas of Louisiana, where access intertidal areas used by the piping Migration is poorly understood, but it is difficult. Based on the results of these plover, we have textually described appears that inland birds may fly non- surveys, we refined our critical habitat each unit as including the area stop to Gulf coast sites (Haig 1992). It is designation to the maximum extent extending out from the landward believed that the Atlantic population possible to include only those areas boundaries to the MLLW. Designating follows a narrow strip along the Atlantic having documented use by piping specific locations for critical habitat for coast during spring and fall migration plovers. This has resulted in less the piping plovers is difficult because with some crossover to Gulf Coast acreage being designated in Louisiana. the coastal areas they use are constantly wintering areas (USFWS 1996). Comment 11: No data were presented changing due to storm surges, flood Comment 9: The international to show that piping plovers exhibit site events, and other natural geo-physical censuses provide only a snapshot of fidelity and cannot simply move to alterations of beaches and shorelines. mid-winter distribution and abundance, other areas if an area is destroyed. Thus, to best insure that areas but tell little about seasonal variation in Our Response: Johnson and considered essential to the piping habitat use and plover movements. Baldassarre (1988) found relatively high plover will remain in the designation While many plovers appear relatively site fidelity for plovers wintering in the over time, our textual unit descriptions sedentary, observations at certain sites Mobile Bay area in Alabama. The will constitute the definitive in North Carolina (McConnaughy et al. revised recovery plan for the piping determination as to whether an area is 1990) and Texas (Eubanks 1994) have plover Atlantic coast population noted within the critical habitat boundary. reported large numbers during or prior several reports of banded birds Our textual unit descriptions describe to migration. These staging and returning year after year to the same the geography of the area using migratory stopover areas may be wintering sites on both the Atlantic and reference points, include the areas from particularly critical for migratory Gulf coasts (S. Bogert, pers. comm. the landward boundaries to the MLLW, shorebirds (Myers 1983; Skagen and 1988; T. Below, National Audubon which encompasses intertidal areas that Knopf 1993) and should be included as Society, pers. comm. 1988; T. Eubanks, are essential foraging areas for piping critical habitat. pers. comm. 1989; Zonick and Ryan plovers, and may describe other areas Our Response: As stated above, 1993; J. Fussell, pers. comm. 1995). within the unit that are utilized by the migration is poorly understood, but it Wemmer (2000) presents information on piping plover and contain the primary appears that inland birds may fly non- constituent elements (e.g., upland areas stop to Gulf Coast sites (Haig 1992). intra- and inter-year site fidelity for used for roosting and wind tidal flats Based on McConnaughy’s study, some Great Lakes plovers, which documents used for foraging). areas are used as staging or stopover one bird that has been observed during areas, and we have included those areas 9 of 11 winters since 1988 at Marco Comment 13: Requests have been in the designation when we have survey Island, Florida. made to modify specific units in order data to support consistent piping plover Comment 12: Comments have been to avoid areas where existing and future use. It is believed that the Atlantic received expressing concerns with the projects are planned or may occur. population follows a narrow strip along size of designated areas. Most think that Our Response: Critical habitat is the Atlantic coast during spring and fall the designated areas are too large; a few designated on the basis of scientific migration from the Gulf coast (USFWS think that the units are not large data, but areas may be excluded on the 1996). The sites that McConnaughey et enough, thereby not allowing for basis of economic impact or any other al. (1990) documented in North Carolina changes that occur during known relevant impact if the Secretary as having relatively high numbers of dynamic coastal processes. determines that the benefits of exclusion plovers observed during migration are Our Response: As described in the outweigh the benefits of specifying such within the designated critical habitat ‘‘Methods’’ section of this rule, in the areas as critical habitat. We may not units. The sites identified by Eubanks proposed rule, a single buffer distance exclude areas if such exclusion will (1994) in Texas are not consistently was set for all units in all states (500 m result in the extinction of the species. used and were not included in the (1,640 ft)). This buffering methodology While the final Economic Analysis designation. resulted in areas of water (deeper than identifies some impacts following this Comment 10: The Louisiana coast is mean lower low water (MLLW)) and critical habitat designation, this remote and not subject to extensive areas of dense vegetation being included consultation activity is largely human presence. Further, there is no in the designation, which are not attributable to the listing. This is based documentation that Louisiana supports utilized by piping plovers. MLLW is on the fact that all the designated a significant portion of the wintering defined as the average of the lower low critical habitat units have documented plover population. Designation of over 1 water height of each tidal day observed use by piping plovers and planned million acres can only be considered over the National Tidal Datum Epoch. In projects are currently subject to the excessive. the final rule, we abandoned this regulatory provisions of section 7(a)(2) Our Response: We agree that human methodology for a more precise means and section 9 of the Act due to the development is not as great a threat of defining the areas that contain the listing of the piping plover. See the along Louisiana’s coasts as it is in other physical and biological features ‘‘Economic Analysis’’ and the areas within the plover’s wintering essential to the wintering piping plover. ‘‘Exclusions Under 4(b)(2) of the Act’’ range. We disagree however, that there This change in methodology results in sections of this rule. is no documentation that Louisiana smaller units of designated critical Comment 14: Many commenters have supports a significant portion of the habitat than that of the proposed rule. asked why we do not designate areas wintering plover population. The We also removed developed areas from that are not heavily used and International Piping Plover Surveys mapped units where possible. (See our inaccessible by man, therefore more have consistently identified Louisiana response to comments under ‘‘Issue G: ideal for piping plovers.
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Our Response: We have designated forced to move to less optimal habitat physical needs are met on the wintering areas with consistent documentation of (Elliott and Teas 1996). We do not know grounds. See also response to A.4. piping plover use. This includes both what effect foraging in marginal areas Comment 18: Several commenters areas heavily used and inaccessible by has on the piping plover’s ability to requested that vast areas of open sandy man. Many inaccessible areas do not survive the winter, and successfully beaches, open water, and heavily have the primary constituent elements reach the breeding grounds, or on vegetated dunes not be designated needed by plovers. Piping plovers reproductive success once on the critical habitat and questioned why the choose areas that meet their physical breeding grounds. Studies on the designation includes areas up to 100 and biological needs. Plovers exhibit a breeding grounds that may apply on the meters offshore. certain amount of site fidelity and were wintering grounds show that piping Our Response: We disagree with the using many of these places before they plovers that have diverse habitats statement that ‘‘vast’’ areas of open became developed. available for foraging can more easily sandy beaches have been designated as Comment 15: Commenter states that cope with space competition and critical habitat. Areas with documented literature (Nicholls Baldassarre 1990b) human disturbances than those with piping plover use have been designated. seems to suggest that people and off- fewer habitats (Burger 1994). These areas are used by piping plovers road vehicles preclude piping plovers Since the piping plover was listed in because they contain the primary from occupying wintering sites. There 1986, no beach closures have occurred constituent elements and are essential to are beaches where piping plovers and due to the presence of piping plovers in the conservation of the species. The beach users successfully cohabit. their wintering range, although in the primary constituent elements are found Studies cited in the recovery plan do breeding range (e.g., Plymouth, in geologically dynamic coastal areas not provide conclusive scientific data Massachusetts), partial beach closures that support intertidal beaches and flats on whether or not human-caused have occurred to protect chicks and and associated dune systems and flats impacts influence wintering piping adult piping plovers prior to the chicks above annual high tide (i.e., sandy plovers. fledging. Additionally, as stated in our beaches). Because areas used by piping Our Response: Section 4 of the Act response to B.18, we believe that the plovers are ephemeral habitats, we must requires us to base our critical habitat effect of normal human presence on consider their changing nature over designations on the best available piping plovers in their wintering habitat time. As explained in the ‘‘Methods’’ scientific information. We note that does not have serious consequences at section, we abandoned the buffering there are several studies documenting methodology used in the proposed rule the effects of human presence on the the population level, and we do not expect this designation to affect and the revised textual unit descriptions behavior of birds. Bird species vary in are now the definitive source of their response to human disturbances recreational beach use. Comment 16: Several commenters determining unit boundaries. This (pedestrian and vehicular) (Rodgers and change has resulted in critical habitat Smith 1997). On the breeding grounds suggested that certain units (Yent Bayou, Marco Island, Unit TX–34 (San units that are significantly scaled down piping plovers elicit a significantly in size from what was presented in the higher response to humans than to Luis Pass), and Rollover Bay and surrounding areas) are not essential to proposed rule. We also believe that we potential predators or non-predator have captured the ephemeral nature of species (Flemming et al. 1988). Rodgers the conservation of the species and should not be designated as critical the habitat within these unit and Smith (1997) documented that descriptions, by including areas to shorebirds are more easily flushed than habitat. Our Response: As required under the MLLW. other species of coastal birds. This may Comment 19: While there may be Act, we designated critical habitat be because shorebirds on the wintering some sites within the piping plover’s essential for the conservation of the grounds are migrant species that rarely range that are very remote or logistically species based on the best scientific data interact with humans. Elliott and Teas difficult to survey, only sites with available. We identified areas (1996) evaluated direct and indirect documented occurrence of the species throughout a broad geographic coverage measures of the effects of human should be designated as critical habitat. disturbance on piping plovers in Texas. along the coast that contained the Our Response: Since the initial Piping plovers (breeding and wintering) primary constituent elements and where proposal, we obtained data on piping not encountered by humans spend more occurrence data indicated a consistent plover occurrences in critical habitat time foraging and less time in active use by piping plovers. The essential areas where the primary constituent nonforaging behavior (Elliott and Teas features found on the designated areas elements were present but where we 1996; Burger 1991). Zonick and Ryan may require special management had no piping plover occurrence data (1996) documented in Texas that beach consideration or protection to ensure because the areas were logistically vehicular density and piping plover their contribution to the species’ difficult to survey. We have abundance were negatively associated. recovery. We believe that the designated subsequently refined our designation to On the breeding grounds, the effects of areas are sufficient, and are needed to include only those areas that contain the people have caused increased shifts in support piping plovers when recovered. primary constituent elements essential habitat use and decreased foraging time We have addressed these areas for the conservation of the species and with more time devoted to alertness specifically in ‘‘Issue B: Site-specific for that we have known piping plover (Burger 1991; Staine and Burger 1994). Biological Comments.’’ occurrences. See the ‘‘Summary of Increased human disturbance Comment 17: One commenter Changes From the Proposed Rule’’ increases energy expenditure by birds questioned the need to designate critical section and our response to A.10. and reduces their food intake (Belanger habitat in areas where the piping plover and Bedard 1990). Whether this is does not breed. Issue B: Site-specific Biological enough to affect their maintenance of fat Our Response: This designation is for Comments reserves for long-range migration or to wintering habitat only. Piping plovers A number of commenters spoke to maintain adequate body temperatures spend up to 10 months (83 percent of specific geographical areas of the under cooler winter conditions is their lifetime) of each year on the designation. unknown. If the level of disturbance is wintering grounds. It is, therefore, Comment 1: Several commenters have high enough, piping plovers may be important to insure their biological and recommended the inclusion of
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additional areas in the critical habitat Charlotte County; Pine Island and Pine support designation of critical habitat. designation and have submitted data Island National Wildlife Refuge, Mound Six piping plovers were found in St. supporting consistent use of these areas Key, Carl Johnson Park, Lovers Key Charles Bay in 1991, but the site was not by piping plovers. The areas that fall State Recreation Area, and Delnor visited in 1996, and we did not include under these criteria in South Carolina Wiggins Pass, Lee County; Rookery Bay the area in the designation based upon include Port Royal Mud Flats, Beaufort National Estuarine Sanctuary and Kice a lack of documentation of consistent County. Areas in Florida include Dog Island, Collier County; north end of Key use. Although piping plovers were Island, Franklin County; Big Hickory Largo and other Keys in general, Monroe present on the margins of spoil islands Island, Lee County; north tip of Anna and Dade Counties; Hobe Sound at the Aransas National Wildlife Refuge Maria Island, Manatee County; high National Wildlife Refuge and Blowing in Calhoun and Aransas Counties in marsh and salt pans inland of Bunche Rocks Preserve, near Jupiter Inlet, 1991, none were found at either site Beach, Lee County (adjacent to Unit FL– Martin County; Hutchinson Island, during the 1996 census, therefore we 25); Cape Haze/Gasparilla Sound State south of Ft. Pierce, St. Lucie County; did not include this area in the Buffer Preserve, Charlotte County; and Sebastian Inlet State Park, Pelican designation because we lacked northeast end of Spanish Harbor Keys Island National Wildlife Refuge, Indian documentation of consistent use. Only ‘‘Horseshoe Pit,’’ Monroe County. In River County; Spessard Holland County one bird was found in both the 1991 and Alabama, Gulf State Park was Park, Brevard County; Canaveral 1996 censuses on the Port Aransas recommended for inclusion. National Seashore, Brevard and Volusia causeway. This area was not included Our Response: We appreciate Counties; Anastasia State Recreation due to these low numbers, plus the fact receiving the additional information. Area, St Augustine Beach to Ft. We will continue to monitor and collect Matanzas Inlet, St. Johns County; that much of the area is made up of new information and may revise the Midnight Pass, Sarasota County; Sand emergent marsh or mangroves and the critical habitat designation in the future Key, Pinellas County; St. Andrews State primary constituent elements are not if sufficient new information supports a Recreation Area, Bay County; and Port present for the piping plover. There are change. Areas outside the critical Charlotte Beach State Recreation Area, no data to support the presence of habitat designation will continue to be Charlotte County. One area, Sand piping plover at the Copano Bay bridge subject to conservation actions that may Island, was requested for inclusion in site, and there is not much habitat be implemented under section 7(a)(1) Mississippi. In Alabama, the area available for the bird except in extreme and to the regulatory protections known as Alabama (also known as low tide events. The Texas Pt. to afforded by the section 7(a)(2) jeopardy Florida) Point and Bon Secour National McFaddin National Wildlife Refuge in standard and the section 9 take Wildlife Refuge were suggested for Jefferson County is a very highly erosive prohibition (see response to E.5). inclusion. narrow stretch of beach, and it is likely Should new information become Our Response: No data were provided that very few birds would be present. available to support the need to to support the designation of the above The area of Tule Lake in Nueces County designate critical habitat in other areas, areas as critical habitat. Many of these was not censussed in 1991, but 8 birds we will consider amending this sites have been monitored as part of were found in 1996. This site is highly designation. piping plover and other shorebird developed all around, and we Comment 2: Other areas have been surveys. No consistent use by piping determined that the characteristics of recommended for inclusion, based on plovers was recorded. this area do not provide for the long- presence of primary constituent Comment 3: One commenter noted term essential needs of the piping elements; however, no significant data that observations of piping plovers plover. Redfish Bay in Nueces County on plover occurrence was presented by occurred in the following areas during supported 83 birds in 1991 and 20 birds commenters. Such areas recommended the international censuses, but that the were seen in 1996. Thus, this site could in North Carolina include expansion of areas were not included in the have been proposed for critical habitat units 6 and 7 to include all of the designated units in Texas—Rachel Site, designation. However, in order to northern and southern Core Banks area. east of Whites Point, Nueces Bay, include areas in this final rule, we South Carolina areas are Fripp Island Nueces County, 1991; Tule Lake, would have to include them in our (habitat has been riprapped), Morse Nueces County, 1996; Redfish Bay area, proposed designation and allow the Creek, and St. Phillips Island, Beaufort. Nueces County, 1991, 1996; Aransas public an opportunity to comment on The areas in Florida include the South Pass/Port Aransas causeway, Nueces their inclusion. As we stated in our tip of Amelia Island, Nassau County; County, 1991, 1996; Aransas National response to Comment B.1 above, we high marsh and salt pans of Charlotte Wildlife Refuge, Calhoun and Aransas may revise the critical habitat Harbor State Buffer Preserve, Charlotte Counties, 1991; Aransas Bay/St Charles designation in the future if sufficient County; Passage Key National Wildlife Bay reefs, Aransas County, 1991; new information supports a change. Refuge, Manatee County; north end of Copano Bay bridge, Aransas County, Furthermore, areas outside the critical Longboat Key, Sarasota County; Ft. 1991; Texas Point to McFaddin National habitat designation will continue to be Pickens, Santa Rosa County; Little Wildlife Refuge, Jefferson County, 1996 subject to conservation actions that may Sabine, Santa Rosa County; and Christmas Bird Counts. be implemented under section 7(a)(1) Choctawhatchee Bay, Okaloosa County; Our Response: We appreciate and to the regulatory protections Cape St. George, Franklin County; St. receiving the additional information. afforded by the section 7(a)(2) jeopardy Marks National Wildlife Refuge, Piney For the following reasons we did not Island, Wakulla County; Aucilla include these areas in the designation. standard and the section 9 take Wildlife Management Area, The Rachel Site, east of Whites Pt. in prohibition. Steinhatchee Area, Taylor County; Nueces County was not surveyed in Comment 4: One commenter Cedar Key and area, Levy and Dixie 1996, nor is there indication of any requested to see the data upon which Counties; Chassahowitzka National surveys taken that show piping plovers Yent Bayou (unit FL–10) was chosen as Wildlife Refuge, Homosassa Island, have been seen at this site. The area has critical habitat for piping plover because Citrus County; Siesta and Casey Keys, the potential habitat for piping plovers, their data do not support such a Sarasota County; Mouth of Peace River, but there has been no data reported to designation. Yent Bayou is a good site
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for many shorebirds, but not for piping species, the degree of development is as a result of coastal processes and will, plover. irrelevant to critical habitat consistent with prior history, eventually Our Response: We do not agree with designations, except to the extent that degrade to the point where foraging the commenter. The 1996 International there might be economic or other habitat for the plover may no longer Census documented 11 birds; Sprandel impacts that could outweigh the exist. et al. (1997) documented 12 during the benefits of designating critical habitat. Our Response: Almost all piping winter of 1993–94; Climo (1998) visited The final Economic Analysis did not plover wintering habitats are dynamic, Yent Bayou 21 times between 1993 and identify economic impacts at Marco consisting of beaches and flats that 1996 and saw an average of 5.1 piping Island that suggested that this area erode, accrete, or change position over plovers per visit. should be excluded. time. We have included in our textual Comment 5: At a public workshop, Comment 7: Marco Island is the unit descriptions, the definitive legal the Service failed to present scientific northernmost of the Ten Thousand source on unit boundaries, areas to the data supporting the inclusion of any Islands. Virtually all of the other islands MLLW to insure that this critical habitat portion of Marco Island in a critical cannot be developed, so they would designation adequately captures the habitat designation. There is no peer- make ideal plover habitat without shifting primary constituent elements of reviewed published scientific literature interfering with human use of beaches critical habitat. to indicate that Florida or Marco Island on Marco Island. Why was Marco Island Comment 10: The scientific literature beaches are essential to plover recovery. (unit FL–27) proposed for designation as has shown that, on the wintering Our Response: Although we did not critical habitat, while other populated grounds, piping plovers generally are present data at the workshop, areas, such as Naples, Florida, were not restricted to sand flats and intertidal designation of unit FL–27 at Marco nor were isolated beaches, such as at areas, not beaches such as on the Island was based on ample Keewaydin Island or the 50 miles of the majority of Marco Island. The proposed documentation that shoals at the north Gulf coast south of Marco Island? critical habitat unit FL–27 at Marco end of the island are regularly used by Our Response: The entire coastline of Island includes large areas, mostly piping plovers. Individuals with Lee and Collier Counties, including beaches, that are not used by wintering expertise in plover biology wrote the Marco Island and the Ten Thousand piping plovers. The unit should be piping plover recovery plans. The Islands, has been surveyed for reduced in size to cover only the sand revised Atlantic Coast and Great Lakes shorebirds for many years. Naples lacks flats and intertidal areas at Sand Dollar populations recovery plans were peer- an inlet like Big Marco Pass, and the Island and Tigertail Beach at the north reviewed and they specifically mention Ten Thousand Islands generally lack end of the island. Marco Island as essential for beaches or mud flats suitable for these conservation of the plover. We have also birds. We have been provided reports of Our Response: The comment refers to reviewed available information from the piping plovers using several sites near the heavily developed portion of Marco 1991 and 1996 International Censuses Marco Island, but do not have evidence Island’s beach south of Tigertail Beach, (including field reports and notes) and of regular, repeated use that would that we now know is used little, if at all, the often-substantial data from local indicate that they are essential to the by piping plovers. This area was birders and ornithologists. Other conservation of the species. There is removed from the FL–27 critical habitat publications used to evaluate Florida ample evidence that the critical habitat unit. habitat included a ‘‘Winter Shorebird units designated in this rule are Comment 11: One commenter noted Survey’’ published by the Florida Game regularly used by piping plovers, and that the boundaries of unit FL–27 at and Fresh Water Fish Commission that other areas, including the coast Marco Island extend far beyond the (Sprandel et al. 1997), a thesis titled ‘‘A south of Marco Island, are not. boundaries of a Critical Wildlife Area landscape-level analysis of piping Comment 8: Designating Marco Island designated by the Florida Fish and plover (Charadrius melodus) winter beachfront as critical habitat will Wildlife Conservation Commission to habitat’’ by Lisa Climo (1998), and a encourage the Service to create conserve shorebirds, especially breeding thesis titled ‘‘Distribution and other conditions favorable to the plover. This ones. Two other commenters provided ecological aspects of piping plovers will encourage the plover to become data on piping plover use of the Marco (Charadrius melodus) wintering along established in an artificially created area Island area and aerial photographs. the Atlantic and Gulf Coasts’ by Janice in contrast to its long-term interest of Our Response: We used the survey Nicholls (1989). While it would always using areas of lesser human presence. information and aerial photographs in be desirable to have more data, the Our Response: While the proposed adjusting the boundaries of the FL–27 critical habitat designations are based rule included Marco Island’s developed critical habitat map unit. The southern on the best scientific data available. beachfront, nearly all of that developed boundary is now at the southern limit Comment 6: Marco Island is unlike beachfront has been excluded from the of sandbar formation since 1952. This other beaches proposed to be designated final rule based on data received during southern boundary coincides with the as critical habitat in that it is completely the comment period showing that southern boundary of the Critical developed. piping plovers do not use that part of Wildlife Area. The revised northern Our Response: With the reduction of the beach. With regard to artificially border of the critical habitat map unit the FL–27 (Marco Island) unit’s size created habitat, designation will not includes isolated sand bars that are from the proposed rule, much of the automatically require creation of forming from just north of Sand Dollar highly developed areas are no longer wintering habitat for piping plovers. Island to Coconut Island, but excludes included in the designation. We believe However, if it is possible to improve Hideway Beach. The landward the new boundaries fully cover the areas wintering habitat constituent elements boundary does not extend inland from regularly used by piping plovers and as part of a Federal project, we will the vegetation line because this part of allow for the movement of sand bars likely recommend such an action. the island appears to be accreting. The and tidal flats. In general, if the primary Comment 9: Piping plover habitat at seaward boundary extends only far constituent elements are present and we Marco Island consisting of the intertidal enough to cover areas with sandbars. make a determination that the area is area is ephemeral, has undergone We believe the new boundaries fully essential for the conservation of the significant changes over the last decade cover the areas regularly used by piping
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plovers and for the expected movement areas that have documented consistent designate critical habitat for the piping of sand bars and tidal flats. use by piping plovers and removed all plover. Comment 12: A few commenters areas that do not have consistent use Comment 18: The designation of stated that the NC–10 unit needs to documentation. This was done in order piping plover critical habitat on Grand reflect the continuity of habitat at this to ensure consistency in the designation Isle, Louisiana, could adversely impact site. The narrative does a good job of of critical habitat units for all States. the economy by curtailing recreational describing the site, which includes the The configuration of habitat units differs uses and limiting development of homes sandy shoal islands within the inlet. But across the wintering range as a result of and businesses on the island. the designated areas on the map leave basic differences in beach morphology Our Response: We have refined our out the sandy shoal islands within the throughout the South Atlantic and Gulf critical habitat unit description since inlet. The map should be drawn as one of Mexico. the initial proposal to include only contiguous unit. Comment 15: It would be more cost- those areas of Grand Isle that contain Our Response: The sandy shoal effective for the Service to designate all the primary constituent elements. On islands referred to are northeast of the critical habitat for the Perdido Key and Grand Isle, that habitat is found seaward inlet. Trying to include all sandy shoals Choctawhatchee beach mice as critical of the hurricane protection levees. We visible would have made NC–10 habitat for the piping plover, since those do not anticipate the development of extremely large. We believe that NC–10 species are already being monitored. homes or business in that area. We as described in the unit description is Our Response: Designating critical believe that the effect of normal human sufficient for conservation of the species habitat for piping plovers based on the presence on piping plovers in their in this area. Piping plovers still have existence of critical habitat and wintering habitat does not have serious protection under the Act whether they monitoring for another listed species consequences at the population level, are within critical habitat or not. does not meet our requirements under and we do not expect this designation Comment 13: What effect will the 50 CFR 424.12(b). In this case, critical to affect recreational beach use. final designation have on vehicular habitat must be based upon a Comment 19: Uninhabited barrier access to areas that already allow beach consideration of the physical and islands near Grand Isle, Louisiana, driving within critical habitat units? biological features essential to the provide ideal habitat for piping plovers. Our Response: Only actions involving conservation of the piping plover. a Federal agency are regulated by Comment 16: One landowner in The Service should work with local critical habitat. On non-Federal lands, Louisiana voiced concern that his/her agencies to restore those islands rather beach driving is not regulated under the property was within proposed critical than designate critical habitat on Grand Act unless take of a listed animal is habitat boundaries even though it does Isle. involved. Take of a listed animal could not contain piping plover habitat. Our Response: We agree that some of be authorized by an incidental take Our Response: We recognize that not those islands contain piping plover permit (ITP) from the Service. An ITP all parcels of land within the initially habitat; however, we are required to would be required regardless of critical proposed critical habitat designation designate critical habitat based on the habitat if take is involved. The issuance contain the habitat components biological or physical constituent of the ITP is a Federal action and the essential to piping plover conservation. elements essential to the conservation of decision to issue the ITP will include an Since the initial proposal, we have the species. The portions of those evaluation of the effects to critical refined our critical habitat maps to islands (including Grand Isle) that met habitat. In most cases, measures to avoid exclude, to the maximum extent those criteria and where survey data and minimize harm would be possible, those specific areas that are indicated consistent use by piping incorporated in a habitat conservation not currently believed to contain the plovers were included in critical plan that includes driving. constituent elements of piping plover habitat. For lands under Federal control habitat. Areas that do not contain the Comment 20: Beach maintenance (National Park Service, Air Force, etc.) primary constituent elements, but are activities conducted by the Harrison the managing agency is responsible for included in the textual unit County Development Commission ensuring that their actions do not descriptions, are not, by definition, (HCDC), Mississippi, are important in jeopardize the continued existence of, or considered critical habitat. the overall protection of the seawall and destroy or adversely modify critical Comment 17: Coastal land loss in U.S. Highway 90, and in maintaining habitat, of listed species. Often times, Louisiana is more important than sufficient habitat for piping plovers. the managing agency is able to control development in affecting critical habitat; HCDC supports the critical habitat impacts to listed species from beach the Service should shift its focus to designation provided it would not driving by redesigning routes and beach fighting coastal land loss. prohibit them from carrying out their access points, and by temporarily Our Response: We agree that coastal mandate to maintain the beach in closing off specific areas during critical land loss is a major factor affecting Harrison County, Mississippi. seasons. piping plover wintering habitat. We Our Response: We agree that beach Comment 14: The critical habitat represent the Department of the Interior maintenance activities are important for designations for North Carolina, South on the Louisiana Coastal Wetlands the protection of seawalls, highways, Carolina, Georgia, and Florida are Conservation and Restoration Task and piping plovers. In general, we have conservative overall, as fairly discrete Force. That Task Force oversees found that beach nourishment activities sites were selected. However, it seems a planning, evaluation, funding, and can be timed and designed to minimize more comprehensive approach was implementation of projects funded effects on piping plovers. We do not taken for the selection of sites along a under the Coastal Wetlands Planning, expect this designation to affect those majority of the Gulf Coast from Alabama Protection and Restoration Act. The beach maintenance activities. to Texas. projects approved to date by the Task Comment 21: At TX–12 (adjacent to Our Response: Based on comments Force are expected to protect and restore Naval Air Station), the polygon received, we have refined our critical nearly 95,000 net acres of coastal provided by the Service for the critical habitat designation to the maximum wetlands in Louisiana. That, however, habitat area appears to include a small extent possible to include only those does not relieve us of our obligation to part of the airfield.
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Our Response: It was impossible to photographs indicate that piping plover operative plan that addresses the map all sites exactly within the time habitat is present on San Jose Island. maintenance and improvement of the constraints directed by the court to Most of the designated inland areas on primary constituent elements important publish the proposed designation. Only San Jose Island (TX 15 and TX18) are to the species, and manages for the long- those areas within the textual unit relict hurricane washover passes, term conservation of the species (i.e., descriptions that contain the essential known to be preferred piping plover implements conservation management elements necessary to support the habitat. Thus, it is suitable bayside strategies and provides for periodic piping plover are considered critical habitat that is somewhat lacking in this monitoring). Therefore, the existing habitat. portion of the Texas Coast, and we have special management is insufficient to Comment 22: We recommend that included it in the designation. See our satisfy the requirements of the only land portions of South Bay be response to B. 23 above for a discussion definition of critical habitat. included in Texas Unit 1 and that the on the importance of interior habitat. Additionally, the publicity and interior of the Boca Chica peninsula be Comment 25: It appears that potential heightened awareness of a rare bird’s excluded. Designation of the entire bay habitat in south and east sides of presence should help to support Sunset area as critical habitat seems excessive. Galveston Bay has not been included, Lake’s Conservation Plan by bringing Our Response: Only those land and should be. additional bird-watchers and wildlife portions in South Bay that have the Our Response: No specific sites were enthusiasts to the area, potentially piping plover primary constituent suggested. However, potential piping creating an increase in economic value elements are considered critical habitat. plover habitat exists on the south and of the Sunset Lake. If portions of the land masses that have east sides of Galveston Bay, as well as It is also important to note that a been designated change, either due to along the shorelines, flats, beaches, and critical habitat designation has no effect natural events such as gradual accretion disposal areas throughout Galveston and on situations where a Federal agency is or erosion or storm events, or man-made other Texas bays. Although piping not involved. For example, only private causes such as the placement of dredge plovers are occasionally seen at many of actions that involve Federal funding or material, then these changing areas will these sites, we have not designated areas a Federal permit, and where the Federal be considered critical habitat when the unless they have consistent piping agency determines that the proposed primary constituent elements are plover use. Five sites on the upper action may affect a listed species or its present. The Boca Chica peninsula is an Texas Coast (TX–36, TX–35, TX–34, critical habitat require consultation. ever-changing land mass with accretion TX–31, and TX–27) have accounted for The protection of the piping plover and erosion rates that cannot be fixed on well over 90 percent of sightings during under the MBTA does not in any way a map. Therefore, only those areas on the previous three International Piping obviate our duties under the Act with the peninsula that contain the primary Plover Winter Censuses and these areas respect to designating critical habitat. constituent elements (i.e., support the are included in the final designation. Comment 27: Nothing in the data piping plover for roosting and feeding) Comment 26: The piping plovers that indicates that piping plovers were will be considered critical habitat. occur on the Sunset Lake Park area and recorded from the vegetated portions of Comment 23: We recommend other natural resources and public use Unit TX–34. Data supporting the including less of the interior area of values are already protected by an designation of vegetated areas within South Padre Island (TX unit 3). Known existing conservation easement. The the critical habitat proposal does not use of these islands by piping plovers Sunset Lake Park is already uniquely exist. We request the Service to appears to be concentrated on the beach protected and preserved as a park under reconsider its proposed designation of areas and exposed flats of both islands. this easement and the park use Unit TX–34. The inclusion of interior areas appears designation by the City. The Act and Our Response: TX–34 (San Luis Pass to be inconsistent with the shore areas Migratory Bird Treaty Act (MBTA) and flats and contiguous beach) is designated elsewhere along the coast. the Sunset Lake Conservation Easement considered one of five important piping Our Response: There are areas of the already provide adequate protection plover aggregation sites on the upper interior of South Padre Island where while enabling other compatible park Texas Coast. Past winter surveys have piping plovers have been sighted. We recreational uses. Critical habitat found upwards of 20 wintering birds included interior areas that are not sand, designation will not help focus there. Curt Zonick’s (1993) study mud, or algal flats, because piping conservation activities for the species at entitled ‘‘Ecology and Conservation of plovers use flats for foraging and Sunset Lake anymore than is already Wintering Piping Plovers and Snowy sparsely vegetated areas for roosting available for this public park operated Plovers,’’ ranked San Luis Pass second purposes, and these areas are also under the existing easement. of eight important Texas sites in density needed for roosting during storms and Our Response: The conservation and fourth in population (average of strong winds. easement for Sunset Lake protects the 33.7 piping plovers). Sparsely vegetated Comment 24: We recommend body of the lake and the improvements areas as described in the ‘‘Primary including less of the interior area of San to the natural wildlife habitat and Constituent Elements’’ section of this Jose Island (TX Unit 18). Known use of sightseeing amendments. The area rule are used by the piping plover as these islands by piping plovers appears outside of the lake proper where piping roosting habitat in this unit. to be concentrated on the beach areas plovers have recently been sighted is in Comment 28: Based on the habitat and exposed flats of both islands. The the highway right-of-way adjacent to the assessment performed on October 12, inclusion of interior areas appears to be lake. Highway reconstruction or 2000, a review of 1995 and 1997 color inconsistent with the shore areas improvements may cause direct or aerial photographs, and U.S. Geological designated elsewhere along the coast. indirect impacts to this important Survey (USGS) 7.5 minute quadrangle Our Response: San Jose Island is habitat. The highway right-of-way is maps, most of Unit TX–34 does not composed of a variety of habitats that outside of the conservation easement. In contain the primary constituent support the piping plover. Although addition, the easement does not provide elements essential for the conservation there are portions that do not contain all adequate special management for the of wintering piping plovers. At least 17 of the primary constituent elements piping plover which can only be percent (250 ac) of the unit is vegetated needed by the plover, aerial adequately provided by a legally and does not provide foraging, roosting,
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or resting habitat. Additionally, the a good area for plovers at or near Sea through 1996 Audubon Christmas Bird majority of the beach within the Rim State Park where, for example, Count circles that included the Rollover proposed unit is very narrow and does plovers were found in both 1997 and Bay area was 13 birds. The 1991, 1996, not provide optimum habitat. The 1998. and 2001 International Piping Plover majority of the unit north of Highway Our Response: While potential habitat Censuses found very low numbers of 3005 consists of open water and should exists along this extensive beach area, birds along the beaches between Bolivar not be considered a primary constituent and while piping plovers are Flats and High Island, but these surveys element of critical habitat. occasionally seen along this stretch of were done by driving and did not cover Our Response: See our response to beach, winter counts and other studies the Rollover Bay area. In summary, the Comment B.27 above. Only those areas have failed to show consistent use here. Rollover Bay site (TX–37) holds a within the unit boundary, as described Comment 32: Several commenters moderate but consistent wintering in the regulatory section of this rule, requested that Rollover Bay and the piping plover population. It is the only that provide the primary constituent surrounding area not be designated as site shown to consistently hold elements for the piping plover are critical habitat for the piping plover. wintering birds along the Texas coast considered critical habitat. The critical They feel that Rollover Bay is east of Bolivar Flats (TX–36), and habitat boundaries, as described in the inconsistent with the Service’s criteria should be rated probably the sixth most regulatory section of this rule, stop for critical habitat. Rollover Bay and important upper Texas coast wintering landward where densely vegetated Pass is a major recreational area for the site. It should be noted that past section habitat, not used by the piping plover, citizens of Texas and other States to 7 consultations involving beach begins and where constituent elements enjoy fishing, boating, crabbing, and restoration in general, and this site in no longer occur. wading. Thousands of visitors come to particular, have supported beach Comment 29: The biological Rollover Bay and Pass annually. The restoration activities as improving the information obtained for Unit TX–34 Intracoastal Waterway also crosses quality of piping plover habitat in the does not provide sufficient information Rollover Bay. From time to time, the long term by preserving and protecting supporting the designation of critical Army Corps of Engineers dredges sand eroding beach habitat. We have not habitat for piping plover. Only 2 percent from the waterway to renourish the previously found that normal beach of the piping plover sightings during the beaches of Bolivar Peninsula, in order to recreation activities would significantly 1991 and 1996 Texas mid-winter keep the waterway open. This is done affect piping plovers or their habitat in surveys were recorded from the San normally during the winter months. At these types of areas, and we do not Luis Pass area. this time the Texas General Lands Office anticipate that normal recreation would Our Response: While piping plover (TGLO) and Galveston County are be restricted as a result of this counts during winter survey periods planning to dredge sand from Rollover designation. have indeed been low, it should be Bay to renourish the beaches at Gilchrist Comment 33: Commenters note that noted that winter censuses have and Caplin. This project will be one of some areas of the Gulf coast were not occurred for the most part during the first major nourishment projects in proposed despite the fact that they are extreme low tidal events when both Texas history. This project is vital to the not developed and that they have all of beach and tidal pass counts along the above two communities. The Bolivar the primary constituent elements of entire upper Texas Coast were very low. Peninsula Beaches are used during the critical habitat. For example, the area Other informal counts at this site, winter months for citizens to drive and between Rollover Pass, Texas, and the including a 1992 Service field study on walk along hunting sea shells. This is Louisiana/Texas state line appears to file at our Clear Lake Field Office, and also vital to the economy of their meet the requirements for piping plover Curt Zonick’s definitive 1991–93 study communities. Eight miles west of wintering habitat. Similarly, the Gulf of (see our response to Comment B.27 Rollover Bay there are 37 miles of Mexico shoreline on the last few miles above) show clearly that this site is beaches, and between High Island and of the western end of the Ft. Morgan consistently used. Sabine Pass, thousands of acres of peninsula, the shoreline of the Bon Comment 30: Since the northern Gulf wetlands, and wildlife refuges that can Secour National Wildlife Refuge’s beaches of Unit TX–34 are very narrow, be designated as critical habitat for the Perdue Unit, and other stretches of and since Zonick and Ryan (1996) piping plover. They would not be shoreline along the peninsula appear to demonstrated a positive correlation disturbed by the public there because meet the requirements for critical between beach width and piping plover there is no highway for the public to get habitat. They question why these and densities, these areas should not be there. Highway 87 has been closed off similar shoreline areas have not been included in the critical habitat proposal. and on for the past 18 years and included in the proposed critical habitat Our Response: Only those beaches completely for the last 11. We urge the designation. They assert that where shown to be consistently used by piping Service to designate that area as critical census data are inadequate to prove plovers, according to previous wintering habitat for the wintering piping plovers. consistent use by the wintering piping bird censuses, are included in the Our Response: We acknowledge that plover, the habitat in question contains designation. the Rollover Bay and surrounding area the physical and biological features Comment 31: A very commendable are heavily used recreation areas and essential to the species, and the Service job has been done in setting aside currently the site of important beach should include the area in the critical habitat areas along the long coast habitat restoration activities. The 1991 designation of critical habitat. of Texas, but we note what appears to coast wide survey by Texas Parks and Our Response: We, and most be the significant omission of any area Wildlife (Performance Report, Project ornithologists, assume that areas near the mouth of the Sabine River at No. 9.1 Piping Plover and Snowy Plover consistently holding aggregations of this the Texas-Louisiana State Line. There Winter Habitat Status Survey (Mitchell, species are essential to the conservation should be some appropriate beach and Zonick, and Withers)) identified the of the piping plovers. Therefore, this dune area between the Bolivar Rollover Bay flats as holding a moderate designation was primarily based on Peninsula and the Sabine River. While winter population of piping plovers, an areas of consistent use that contain one the west bank of the Sabine is average of 12 birds (11, 14, and 12) for or more of the primary constituent marshland, we understand that there is 3 survey trips. The average of 1990 elements. We did not consider it in the
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best long-term conservation interests of many years, and commenters have felt decision to forego preparation of an the piping plover to designate critical that they may winter on the uninhabited Environmental Assessment (EA) and an habitat where it is only infrequently spoil islands that abut the Cove. Environmental Impact Statement (EIS) known to occur. However, should new Our Response: We have not collected is based on reasons published in the information become available to support any data that indicate piping plovers Federal Register in 1983. Much has the need to designate critical habitat in use this area, and since the proposed happened since 1983, and an EIS is other areas, we will consider amending designation was based on known required to properly analyze the full this designation. scientific surveys for consistent usage range of impacts of the designation, Comment 34: Commenters request by the birds, we did not propose that including social and economic effects. that the Service take under area as critical habitat. We will, Contrary to species listings, where only consideration the designation of however, attempt to survey this site in the status of the species can be portions of Long Island, Texas, located the future. considered, critical habitat designation in Cameron County, Texas, as critical Comment 37: The Cayo del Grullo requires consideration of the economic habitat for the piping plover. They feel arm of Baffin Bay and the tidal flats and other relevant impacts of the that their close proximity to the current along Highway 48 from Highway 100 to designation. The commenters believe designated area and the physical and where it intersects at Highway 48 were such considerations should be subject to biological features of their island left out of the critical habitat a formal public process such as NEPA. warrant serious consideration. designation. Plovers can be seen feeding Our Response: The commenter is Our Response: While potential habitat near Vattman Creek near Kaufer-Hubert exists along this extensive area, and correct that we determined, for the Memorial Park. reasons stated in a Federal Register while piping plovers are occasionally Our Response: Based on surveys notice published on October 25, 1983 seen, survey counts and other studies performed in these areas, piping plovers (48 FR 49244), that neither an EA nor have failed to show consistent do not use the areas consistently, and an EIS is required for actions taken populations here and we have not been since the proposed designation was under section 4(a) of the Act, including able to conclude that these areas are based on consistent use from known designation of critical habitat. We essential to the conservation of the scientific surveys, we did not propose believe that the reasons for this species. these areas for designation. Comment 35: The burden should be Comment 38: One commenter asked if determination remain valid despite the placed on the Service to prove to the the flats in Alazan Bay are used by passing of nearly 18 years since our land owners that their property is piping plovers. original determination. In addition, the piping plover habitat and then negotiate Our Response: We have not located economic impacts of the designation with them the protection of the area. any data to indicate that piping plovers were analyzed in the Final Economic Almost the entire island from Gulf to use this area, and because the proposed Analysis and considered in making this Bay, including upland areas in the designation was based on known final determination. Finally, the public middle of South Padre Island, was scientific surveys for consistent use by involvement and notification designated as critical habitat. That is not the birds, we did not designate this area requirements under both the fair or correct. as critical habitat. Endangered Species Act and Our Response: The South Padre Comment 39: One commenter asked Administrative Procedure Act provide Island community encourages about Powderhorn Lake in Calhoun ample opportunity for public protection of wildlife areas. We do not County. The Service owns the Whitmire involvement in the process. expect any additional burdens placed Unit of Aransas National Wildlife Comment 2: Council on on landowners, or the need for Refuge. Those flats are used by lots of Environmental Quality Regulations (50 negotiation for protection of the area. shorebirds. CFR 1502.21) state that no material may Only private activities with Federal Our Response: We have not located be incorporated by reference unless it is sponsorship that may affect the piping any data to indicate that piping plovers reasonably available for inspection by plover or its critical habitat require the use this area, and because the proposed potentially interested parties within the Federal agency to consult with us. designation was based on known time allowed for comment. The Federal Although the piping plover’s feeding scientific surveys for consistent use by Register document (48 FR 49244) habitat is located on mud, sand, and the birds, we did not designate this area referenced in the Service’s algal flats, upland areas with sparse as critical habitat. determination that an EA or EIS is not vegetation offer the birds roosting Comment 40: Many residents of Padre necessary is not reasonably available. habitat which is also important for its Island oppose making the area of Pt. Our Response: That document, as survival. Aransas down to Pt. Mansfield nesting Comment 36: The spoil island area in well as any other information grounds for this or any bird species. supporting this designation, is available Ingleside Cove was not included for Our Response: This rule is issued to by following the instructions provided consideration. It meets the criteria listed designate critical habitat for the under the FOR FURTHER INFORMATION in the Federal Register for wintering wintering population of piping plovers, CONTACT section in both the proposed piping plovers: intertidal beaches and not nesting piping plovers, as these and final rules. We believe this easily- flats, sand and/or mud flats with no or birds nest in the northern parts of the reachable source meets the requirements very sparse emergent vegetation. Piping United States and Canada. plovers have been sighted in the spoil on the availability of supporting island area in Ingleside Cove Wildlife Issue C: National Environmental Policy information. Sanctuary for many years, and it is Act (NEPA) Compliance Comment 3: According to a decision possible that they may winter on the Some commenters expressed concern in Catron County Board of uninhabited spoil islands that border about our alleged failure to comply with Commissioners v. United States Fish the Cove. Is the area around Ingleside NEPA. and Wildlife Service, 75 F3d 1429 (10th Cove considered designated critical Comment 1: The Service did not Cir. 1996) and Oregon Natural habitat for wintering piping plovers? adequately comply with the Resources Council v. Lyns, 882 F2d These plovers have been sighted in requirements of the National 1417 (9th Cir. 1989), the Service must Ingleside Cove Wildlife Sanctuary for Environmental Policy Act (NEPA). The prepare an EA on critical habitat
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designation. In Catron County, the court State of Texas, that stresses the need for essential to the conservation of the noted that the Acts’ procedures do not open access to beaches for use by the species concerned. Human-made displace the NEPA requirements when public. Is this proposal subject to review structures do not contain such features critical habitat is proposed. The Service by the Texas Coastal Management and therefore do not meet the definition should follow Catron County, rather Program? There is potential for conflict of critical habitat. than Douglas County v. Babbitt, 48 F.3d between the designation and the Texas Comment 5: Critical habitat 1495 (9th Cir. 1995), because the piping Open Beaches Act. designation will provide opportunities plover wintering critical habitat Our Response: The designation of for third parties to sue in order to stop includes state and private lands, not just critical habitat is not a listed activity in activities like recreational use of the Federal land. the Coastal Management Plan for Texas, beach. In Palila v. Hawaii Department of Our Response: The Service and therefore is not subject to Land and Natural Resources, 639 F. 2d. acknowledges that the Tenth Circuit consistency review. The Coastal 495 (9th Cir. 1981), the court issued a Court of Appeals determined in Catron Coordination Council does have the mandatory injunction to eliminate the County that NEPA requirements apply opportunity to look at impacts to State’s use of critical habitat in a way to designation of critical habitat. federally listed species and their critical that was preventing the use of the However the Ninth Circuit Court of habitat when reviewing permit habitat by the palila. Appeals held in Douglas County v. applications and other projects. Babbitt that NEPA does not apply to the Comment 2: In Texas, a mineral Our Response: The primary authority Service’s designation of critical habitat owner has unquestioned right to use as for third parties to sue to enjoin because Congress intended that the much of the surface as may be necessary activities that harm endangered and Act’s critical habitat procedures to explore for oil, gas, and other threatened species is found in the displace the NEPA procedures, NEPA is minerals. The Federal Government citizen suit provision of the Act, 16 inapplicable to actions that do not should not pass laws that usurp State U.S.C. 1540(g)(1), that authorizes change the physical environment, and laws without providing just anyone to file suit to enjoin violations the application of both NEPA and the compensation to those affected. of the Act. Section 9 of the Act, 16 Act’s requirements would frustrate both Our Response: As stated in the U.S.C. 1538(a)(1)(B) makes it unlawful statutes. The Ninth Circuit did not limit proposed and final rules, we do not for any person to ‘‘take’’ an endangered its decision to cases involving only expect critical habitat designation to or threatened species. The Service’s Federal lands, holding instead that the result in restrictions beyond those that regulations define ‘‘take’’ as including public notice provisions and resulted from the species’ listing. We, actions that are likely to lead to the opportunities for comment under the therefore, see no conflict with existing death or injury of threatened or Act’s provisions were adequate to serve State laws governing mineral endangered wildlife. Palila v. Hawaii the NEPA function. Our current practice exploration. Department of Land and Natural is to require NEPA compliance for Comment 3: The court order does not Resources was a citizen suit brought to designation of critical habitat only require the Service to designate enjoin the State of Hawaii from ‘‘taking’’ where the critical habitat designation is wintering habitat for the piping plover, an endangered species by allowing goats located within the Tenth Circuit (the only that critical habitat be designated to destroy the species’ habitat. Neither states of Colorado, Kansas, Nebraska, for the Great Lakes and Great Plains section 7 consultation nor the New Mexico, Oklahoma, Utah, and populations. designation of critical habitat were the Wyoming). That is not the case here. Our Response: The commenter is basis of the suit. We do not expect that The decision in Oregon Natural correct in that the court ordered us to the designation of critical habitat for the Resources Council v. Lyng dealt with a designate critical habitat for the Great wintering population of piping plover U.S. Forest Service timber sale and is Lakes and Great Plains populations of will increase the possibility of third not applicable to the critical habitat piping plover. As discussed throughout party suits to enjoin use of beaches for designation issue. this rule, critical habitat includes those recreational purposes. areas essential to a species’ Comment 4: While there may be some Comment 6: In Bennett v. Spear, 520 conservation. Piping plovers spend up overlap between the requirements of the U.S. 154, 169, 117 S.Ct. 1154 (1997), the to 10 months a year on the wintering ESA and NEPA, NEPA requires Federal Supreme Court cautioned that the grounds. Wintering grounds provide for agencies to look at the short- and long- requirement that the Service use the an essential part of the species’ life term effects of their actions, as well as best scientific information available cycle. Without adequate conservation of cumulative effects, which the ESA does serves to ‘‘ensure that the Act is not wintering habitat, recovery of the not. The public and other Federal implemented haphazardly, on the basis species would be limited. agencies have raised legitimate concerns of speculation or surmise.’’ Although that can only be properly analyzed Comment 4: For the proposed rule, the Service drew broad boundaries and the cited case involved section 7 through the NEPA process. consultation, the same caution should Our Response: We disagree that NEPA then excluded areas (e.g., buildings) within those areas. The only way to be exercised in actions under section 4, is required for this action. We believe such as designating over 1,600 miles of we have fully considered the relevant exclude areas from critical habitat is through 4(b)(2) of the Act, that requires shoreline based on inconclusive or impacts of designation, as required by unavailable data. the ESA, and have found that these an affirmative determination that the impacts are too insignificant to warrant benefits of excluding an area outweigh Our Response: We disagree that the a detailed analysis under NEPA. the benefits of including it as critical critical habitat designation is based on habitat. No such cost-benefit analysis inconclusive or unavailable data. The Issue D: Legal Issues was provided in the proposal. Act requires that our decisions be based Numerous commenters raised issues Our Response: Areas designated as on the best scientific and commercial pertaining to compliance with the Act critical habitat must meet the legal information available. All areas chosen or with other laws and regulations definition of critical habitat provided in have documented consistent use by (excluding NEPA issues). this final rule. One prong of the piping plovers and are limited to areas Comment 1: Critical habitat may definition is that an area must contain within the designated units that conflict with the public policy of the the physical or biological features currently contain the principal
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biological and physical features a substantial use of the property as to under the Act. We identified the action essential to the piping plover. In amount to a Fifth Amendment taking. agencies and programs conducting such addition, an estimated 32 pairs remain Comment 8: Failure to properly actions, and stated our belief that of the endangered Great Lakes breeding consider the effects of the designation actions likely to adversely modify population of piping plovers. Data show through a Takings Implication critical habitat would likely also that this population uses both the Assessment violates Executive Order jeopardize the continued existence of Atlantic and Gulf Coasts (USFWS 1999; 12630. the species. We then provided a Wemmer 2000). Additional areas are Our Response: Executive Order 12630 discussion of the types of activities that likely used by Great Lakes piping requires that Federal actions that may we foresee may adversely modify plovers, as most birds have not been affect the value or use of private critical habitat. accounted for in winter. Therefore, property be accompanied by a takings We acknowledge the commenter’s identification of essential habitat should implication assessment. For the reasons implication that specific standards not rule out any sites where piping discussed above, we have complied should be given to properly advise plovers consistently over-winter until with the requirements of the Executive citizens and Federal agencies as to what the wintering distribution of the Great Order. programs may be affected by critical Comment 9: The Regulatory Lakes population can be more habitat designation, but find such Flexibility Act requires that agencies accurately defined (USFWS 1999). specificity impossible given the wide consider the effects of their actions on Based on these numbers, as well as variety of projects and ecological small businesses, small non-profit other supporting site data, we have conditions occurring throughout the enterprises, and small local concluded that most sites with designation area. In addition, the fact governments. If the action is expected to consistent occurrence of piping plovers that we expect few or no restrictions to be significant, an initial regulatory should be designated as critical habitat be imposed through the consultation flexibility analysis must be published in order to provide for the recovery of process beyond those that have existed with the proposed rule. If, as the Service the species. since the species was listed reinforces Comment 7: Commenters called into did here, the agency certifies that the our belief that our discussion was question our conclusion that the proposed rulemaking is not expected to adequate to meet the requirements of designation will not have significant be significant, it must publish with the section 4(b)(8) of the Act. takings implications under the Fifth certification a statement providing a Comment 2: The Service has Amendment to the U.S. Constitution. factual basis for such a conclusion. represented that no additional impacts Our Response: The Regulatory They claim the Service needs to address will result from critical habitat Planning and Review section of the takings implications as per the Supreme designation beyond those already in proposed rule (65 FR 41794) discussed Court’s rulings in such cases as Lucas v. place through the listing of the species our reasons for determining that this South Carolina Coastal Commission, and required consultation under section action will not have significant 505 U.S. 1003 (1992); Penn Central 7 of the Act. This is premised on the economic effects on the small entities Transportation Company v. City of New argument that the prohibition of listed by the commenter. We believe York, 438 U.S. 104 (1978);. jeopardy for listed species is nearly this constitutes a statement providing Pennsylvania Coal Company v. Mahon identical to the prohibition against the factual basis for our determination. 260 U.S. 393 (1922); and Dolan v. City adverse modification of critical habitat. of Tigard, 512 U.S. 374 (1994); Nollan Issue E: Section 7 Consultation Issues In addition, the commenter cites 64 FR v. California Coastal Commission, 483 A number of commenters, particularly 31871–31872 as an example where the U.S. 825 (1987). Federal agencies, expressed concerns or Service has previously acknowledged Our Response: As discussed in our had questions regarding the effects of that the adverse modification standard responses to economic comments, the designation on the section 7 (for projects affecting critical habitat) is economic analysis found that consultation process. not identical to the jeopardy standard designation of critical habitat would Comment 1: An unclear and (for projects affecting listed species). have no significant economic effect ambiguous definition of what Finally, the Service requires that an above that already imposed by listing. constitutes adverse modification of analysis for a critical habitat The primary effect of critical habitat critical habitat will result in varying consultation be conducted designation on private property is to interpretations under section 7. The independently from an analysis under identify areas important for the Service needs to more clearly define the jeopardy standard. conservation of the species. In addition, adverse modification and allow review Our Response: With regard to the if a Federal action occurs on those by Federal agencies in order to assess commenters’ contention that we have private lands, such as issuance of a the impact of designation on agency previously acknowledged the difference Clean Water Act section 404 permit, the programs. between jeopardy and adverse Federal action agency would be Our Response: Section 4(b)(8) of the modification, the citation provided by required to consult with us pursuant to Act requires that we provide, in any the commenter is from our Notice of section 7 of the Act if that action may proposed or final rule to designate Intent To Clarify the Role of Habitat in affect the piping plover, regardless of critical habitat, a ‘‘* * * brief Species Conservation (June 14, 1999; 64 whether that habitat is officially description and evaluation of those FR 31871–31874). On cited page 31872, designated critical habitat. If such a activities * * * which * * * may we stated ‘‘According to our Federal nexus exists, we will work with adversely modify [critical] habitat, or interpretation of the regulations, by the landowner and the appropriate may be modified by such designation.’’ definition, the adverse modification of Federal agency to ensure that the In the proposed rule, in the section critical habitat consultation standard is landowner’s project can be completed titled ‘‘Effects of Critical Habitat nearly identical to the jeopardy without jeopardizing the species or Designation’’ (65 FR 41792), we consultation standard.’’ We also stated adversely modifying critical habitat. provided a relatively detailed ‘‘For almost all species, the adverse Therefore, we do not believe that discussion of the types of programs that modification and jeopardy standards are designation of critical habitat will cause have typically undergone section 7 the same * * * It should be noted that a property owner to be deprived of such consultation since the species was listed while the jeopardy and adverse
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modification standards achieve similar been completed, or where the action jeopardizing the continued existence of results, the context of the analyses differ agency has no discretion to modify the a listed species, regardless of critical i.e., jeopardy analyses examine effects to project, no further consultation would habitat designation. ‘‘Jeopardize the the species while the adverse be necessary. continued existence of’’ means to modification analyses examine effects to In cases where a previously engage in an action that would be the habitat that supports the species. consulted-upon action could still be expected, directly or indirectly, to When addressing impacts to occupied modified within the agency’s legal reduce appreciably the likelihood of habitat, effects to the habitat supporting authority, and where that project may both the survival and recovery of a the species will result in parallel effects affect critical habitat, reinitiation of listed species in the wild by reducing to the species. If these effects rise to the consultation is required (50 CFR the reproduction, numbers, or level of adversely modifying designated 402.16). However, given that such a distribution of that species (50 CFR critical habitat, then it is anticipated project would have already received a 402.02). Because we designated only that these effects would also be non-jeopardy biological opinion from areas within the geographic range sufficient to result in a jeopardy us, and since actions unlikely to occupied by the piping plover, any determination. We did acknowledge jeopardize the continued existence of activity that would result in an adverse that in cases where unoccupied habitat the species would also usually be modification of the plover’s critical is involved there may be additional unlikely to adversely modify critical habitat would virtually always also consultation requirements because of habitat, the project would likely proceed jeopardize the continued existence of critical habitat designation. However, without additional constraints. the species. Federal agencies must we consider all designated wintering The Service has only had one consult pursuant to section 7 of the Act piping plover critical habitat units to be jeopardy opinion issued for the piping on all activities that will adversely affect ‘‘occupied’’ in the sense that, when the plover wintering population since its the plover both within and outside primary constituent elements are listing in 1986. The proposed project designated critical habitat. present during the appropriate season, was in Texas and was not undertaken The consultation process will change those features will be used by piping for various reasons. only to the extent that Biological plovers at least occasionally. Comment 4: The Service should work Finally, the commenter is correct that with affected Federal agencies and Assessments must consider the effect of our analysis of a project’s effects on others whose programs depend upon the project on critical habitat. However, critical habitat and the analysis for the Federal funding or permits to develop we already need to consider the effect project’s effects on the species are general guidelines that can be used to of the project on habitat (in the absence conducted independently (50 CFR 402). expedite the consultation process. In of critical habitat designation) based on However, this has no bearing on our this way the effects of designation will the listing of the piping plover. position that the results of the two be minimized, especially if and when Therefore, we anticipate that the analyses will essentially be the same these guidelines are incorporated into additional workload burden created by under the jeopardy and adverse project designs. critical habitat will not result in modification standards. This has been Our Response: We agree with this different outcomes of the jeopardy and borne out as, after many years of recommendation and are prepared to adverse modification standards. conducting section 7 consultation, there work with local interests in developing Issue F: Public Involvement/ have been no instances in recent times guidelines to guide and expedite the Coordination where a project was determined section 7 consultation process. We unlikely to jeopardize the continued invite interested agencies and Several commenters expressed existence of a species while at the same individuals to contact their local Service concerns about the adequacy of the time deemed likely to destroy or offices to begin this programmatic opportunity for public input and other adversely modify its critical habitat. consultation approach. coordination issues. Comment 3: The final rule should Comment 5: Commenters have asked Comment 1: All landowners within include a clause that excludes how the final designation will affect the area affected by the designation previously authorized Federal project Federal and non-Federal projects should have been notified. areas from the definition of primary currently under consideration for constituent elements. Federal agencies authorization within critical habitat Our Response: Given the wide- are legally obligated to conduct these units. ranging nature of this designation, the actions when an agreement between the Our Response: All landowners, public thousands of landowners involved, and agency and non-Federal sponsors exists. and private, are responsible for making the amount of time available to These types of projects should be sure their actions do not result in the complete the designation due to court ‘‘grandfathered’’ from the critical habitat unauthorized taking of a listed species, order, contacting each individual designation. regardless of whether or not the activity landowner within the proposed area Our Response: Federal actions that occurs within designated critical was not possible. However, we went have already undergone section 7 habitat. Take is defined as ‘‘harass, well beyond the general notification consultation on the effects of the action harm, pursue, hunt, shoot, wound, requirements of the Act and the on piping plovers, and that were capture, collect, or attempt to engage in Administrative Procedure Act. This determined unlikely to jeopardize the any such conduct.’’ Take is further included notification of all State and continued existence of the species, must defined by regulation to include local governments; mailings to over 898 undergo further consultation on the ‘‘significant habitat modification or interested parties; publication of notices projects’ effects to critical habitat only degradation that actually kills or injures in 23 newspapers; issuance of press in instances—(1) where the project has wildlife,’’ which was upheld by the U.S. releases for each public hearing and not already been completed, and (2) Supreme Court in Sweet Home Chapter comment period reopening; and other where the Federal agency still has the of Communities for a Great Oregon et al. informational materials. Given that we discretion within its legal authority to v. Babbitt, 515 U.S. 687 (1995). received over 6,000 letters of comment modify the project should it be All Federal agencies are responsible on the proposal, we believe that we determined likely to adversely modify to ensure that the actions they fund, adequately publicized the proposed critical habitat. Where a project has permit, or carry out do not result in action. We regret any instances where
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interested parties may have been We disagree that the public hearings Our Response: It is our judgement that unaware of the proposed designation, were poorly publicized, as we information collected pre-proposal was but believe these instances are few. conducted extensive outreach prior to sufficient for a thorough and Comment 2: The Service is attempting the hearing (see the discussion in F.1). comprehensive designation to support to implement critical habitat without We acknowledge, however, that all three populations of piping plovers giving landowners adequate time to notification of the Wilmington, North when recovered. Areas outside the review the information. Carolina, and Savannah, Georgia, critical habitat designation will Our Response: The initial public hearings was less than desired. continue to be subject to conservation comment period on this action was Regulations (50 CFR 424.16(c)(3)) actions that may be implemented under open from July 6, 2000, through require 15 days notification prior to section 7(a)(1) and to the regulatory September 5, 2000 (60 days). When the public hearings being held, but the protections afforded by the section draft economic analysis of the proposal Wilmington and Savannah hearings 7(a)(2) jeopardy standard and the was completed, we extended the were publicized only 11 and 13 days, section 9 take prohibitions, as comment period until October 30, 2000 respectively, before they were held. determined on the basis of the best (65 FR 52691), and again until While we regret this short notification, available information at the time of the November 24, 2000 (65 FR 64414), for since only one hearing is required to action. In developing the proposed and a total extension of 80 days. Finally, we meet our statutory obligations under the final rules, we coordinated with reopened the comment period for 7 Act, we did not violate our regulatory biologists in the appropriate State additional days (66 FR 11134) to accept requirements. agencies from the eight affected States further public comment on any and all Finally, it is important to note that a (see response to F.4). aspects of the proposal and associated public hearing is one part of the public Issue G: Mapping and Primary economic analysis. The public therefore participation opportunities provided Constituent Elements had 147 days of open comment period under the Act and Administrative on the proposed rule, and 87 days of Procedure Act. Written comments A number of commenters expressed concerns about map quality, the broad open comment period on the draft receive equal consideration as oral extent of the designation, the definition economic analysis. The Act requires comments, and we far exceeded the of the primary constituent elements, and that a minimum of 60 days be allowed public comment period requirements in other issues surrounding spatial aspects for comment on a critical habitat allowing ample time for submission of of the designation. proposal. Thus, we exceeded the written comments. In addition, we were Comment 1: The critical habitat units statutory requirement. ordered by the court to complete the are non-specific in that they include Comment 3: Some commenters felt proposed and final designation in a 10- lands that do not contain the primary that there were too few public hearings month period. Thus we could not have constituent elements. This will result in held, some questioned the geographic extended the comment period any unnecessary section 7 consultations and distribution of the hearing sites, and longer and met the court deadline of add an unnecessary administrative some were concerned that the hearings April 30, 2001. burden to government agencies and were poorly publicized or that too short Comment 4: The proposed rule does private entities included within the a notice was given. not describe the type and level of mapped boundaries. Our Response: The Act requires that coordination that has occurred with Our Response: While it would be at least one public hearing be held on State wildlife agencies; their views ideal if we could map only areas that a proposed designation of critical should have been included in the currently contain the primary habitat if requested within 45 days of proposal. constituent elements, there are three publication of a proposed rule. As Our Response: We have long primary reasons why we were unable to described previously, in anticipation of recognized the roles of States in do so. First, we are unaware of the the public’s interest in the proposed management of listed species and their existence of sufficient data with which designation we announced in the habitats, and coordinate with States to to conduct the precise mapping proposal that we would hold 9 public the extent practicable. The Act at requested by the commenters. Second, hearings. We added a tenth public (4)(b)(5)(A)(ii)) requires that States be even if the data were available, the large hearing, that we announced in the given notification of, and opportunity to extent of the species’ range would Federal Register and local newspapers comment on, proposed listing actions. render such fine-scale mapping (for a complete discussion on the public However, we generally coordinate with impractical, especially given workforce hearings and our efforts at publicizing States during the proposal development and time limitations. Most importantly, them please see the beginning of this process, as we did here. the coastal areas inhabited by the piping ‘‘Summary of Comments and Our biologists coordinated with the plover are so highly dynamic that any Recommendations’’ section). While we appropriate State agencies from all eight map of currently suitable habitat would would have preferred to conduct more affected States in developing piping rapidly become obsolete. public hearings, budgetary, workforce, plover distribution information along For the reasons cited above, we and time constraints prohibited us from the coast by meeting with them mapped the critical habitat boundaries doing so. Nonetheless, we far exceeded personally and soliciting their input on a relatively coarse scale, and the requirement that one public hearing prior to the proposed rule and/or during identified the areas within those be held if requested. Further, given the the comment periods. We incorporated boundaries that are essential to the large geographic distribution of their input and expertise into the species by describing those habitat wintering piping plovers and the proposed and final rules. features (primary constituent elements) resulting large area proposed as critical Comment 5: Why were persons with essential to the plover’s life-history habitat, we chose our hearing locations known experience in piping plovers not requirements. In this way, critical to spread the sites as evenly as possible contacted for information prior to habitat designation will accommodate throughout the eight affected States. publication of the proposed rule? As a the dynamic nature of the habitat, Once requested, four additional public result of the Service’s failure to seek changing through time as the primary meetings were held after the initial local expertise, important areas were left constituent elements form in one area public meetings and hearings. out of the designation. while disappearing in another. We
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believe that this approach is the only proposed rule and this final rule notify available information and time to scientifically credible way to ensure that the affected public of the boundaries of complete the mapping effort. We could the critical habitat designation is the critical habitat designation and of not exclude every structure, road, or compatible with the species’ habitats’ the fact that the essential physical and other feature from the critical habitat naturally ephemeral character. As biological features important to the boundaries. However, these areas are suggested by one commenter, to ensure piping plover are dependent upon a not included by definition. that interested persons understand that dynamic coastal system that changes Comment 6: The designation should critical habitat is found only in areas through time. As explained above and be revised to exclude developed and where the primary constituent elements throughout the proposed and final rules, other areas that do not currently contain are present, our final critical habitat we can think of no other approach the primary constituent elements. By maps are footnoted to that effect. This consistent with the dynamic nature of including non-habitat areas within the is consistent with our regulations at 50 the species’ habitat. designation, the Service will not be able CFR 17.94(c), that indicate the Comment 3: Regulations at 50 CFR to distinguish which areas are habitat, management of critical habitat focuses 17.94(c) state that the Service must and merit protection, and those areas only on the biological or physical focus on the biological or physical that do not support plovers. This may constituent elements within the defined elements within the critical habitat area result in adverse activities proceeding area of critical habitat. that are essential to the conservation of because the Service will not be able to Finally, as stated in both the proposed the species and that are known to distinguish between those areas and final rules, section 7 consultation require special management adversely affected before the on piping plover critical habitat will considerations or protection. designation from those occurring after only be required when a proposed Designation of such broad geographical the designation. Federal action may affect the primary areas expands the ‘‘best available Our Response: We believe we can constituent elements. Thus, no information’’ requirement to render assess whether an action area is habitat consultation will be necessary if those moot the fact that the data must be for piping plovers, much as we have habitat features are not present, since ‘‘available’’ and the presence of done over the 15 years that the species consultation is triggered by a constituent elements ‘‘known’’. has been listed. We will use aerial determination on the part of the Federal Our Response: Regulations at 50 CFR photographs and local records to action agency that their proposed 17.94(c) require that those constituent determine the extent of development at activity may affect piping plovers or elements ‘‘known to require special the time of this critical habitat their critical habitat. Our Ecological management considerations or designation. When an action agency is Services Field Offices (see contact protection’’ be listed with the contemplating an action, it is up to that information under ‘‘Effects of Critical description of critical habitat. As stated agency to determine whether or not that Habitat Designation’’ section) will in our response to G.2, critical habitat action may affect a listed species or its gladly work with Federal agencies and units were developed to take into critical habitat. If the agency determines landowners to help determine whether account the shifting nature of primary its action may affect a listed species’ piping plover habitat occurs on their constituent elements. We believe we habitat, it then initiates section 7 property. have used the best information available consultation. We then evaluate the Comment 2: Including an area as and made a biologically sound effects of the action on the species or its critical habitat because it may support designation based on the ephemeral critical habitat. the primary constituent elements in the nature of piping plover habitat. Comment 7: The Service should future violates the criteria specified in Comment 4: Additional explanation clarify that not all human-made regulations at 50 CFR 424.12(b). This of what constitutes the primary structures are excluded from critical approach also circumvents the constituent elements would aid the habitat. Some areas, such as renourished rulemaking requirements under the Act general public in recognizing the beaches, may benefit plovers if done and the Administrative Procedure Act. species’ critical habitat. correctly. Our Response: The referenced Our Response: We believe the primary Our Response: We agree that not all regulation speaks to the definition of the constituent elements were well- human-made structures are excluded primary constituent elements and lists described in the proposed rule. Further, from critical habitat. Only those areas the types of life-history requirements we received information from state and (whether human-made or natural) that may be included in critical habitat. county biologists who have documented containing the primary constituent One of those life-history requirements is the use of salterns (also called salinas, elements are considered critical habitat. ‘‘(1) Space for individual and salt flats, salt barrens, and salt pans) by We agree that beach renourishment is an population growth, and for normal piping plovers in southwest Florida. example of human-made habitat that behavior.’’ We believe the designation They are bare sand flats in the center of may benefit piping plovers. Habitat reflects this life-history requirement, in mangrove ecosystems that are found restoration and creation projects that critical habitat units were above mean high water and are only including beach nourishment, barrier developed to take into account the irregularly flushed with sea water island restoration, and islands created shifting nature of primary constituent (Myers and Ewel 1990). We have added using dredged material may benefit elements in coastal systems. That is the term ‘‘salterns’’ to the description of plovers and such sites have been compatible with piping plovers’ normal primary constituent elements. included in the critical habitat behavior of shifting use areas based on Comment 5: Critical habitat units designation. tide, weather, food supply, etc. (Drake should be mapped in sufficient detail to Comment 8: Areas should not be 1999a). Thus, we believe the exclude developed areas. Merely excluded from critical habitat merely designation accurately reflects the intent excluding these areas verbally is because they are ‘‘developed sites.’’ Just of 50 CFR 424.12(b). inadequate. because an area is already degraded We also dispute the contention that Our Response: In the final rule we does not preclude its designation if it is this approach violates the rulemaking excluded a number of larger developed essential to the species’ recovery. requirements of the Act or areas from the mapped units. We did Our Response: The proposed Administrative Procedure Act. The this to the extent practicable given the designation constitutes our assessment
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of the wintering habitat needed to Orthophoto Quarter Quads (DOQQs) combine many layers of information and support a recovered piping plover (i.e., digital aerial photography) and tools to analyze that information. The population. In arriving at this reference locations found on published coordinates printed in the Federal designation we included areas that have maps. For the piping plover designation, Register were created from the text files documented consistent use. We mapped we believe that textual unit that were generated from the GIS. around developments adjacent to or descriptions, as described in the During this process potential errors may directly on the beaches and only ‘‘Methods’’ section of this rule, will have occurred due to the interpretive excluded developments that do not provide for a more precise means of process of the coordinates. One known contain any primary constituent defining the areas that contain the error was the reporting of Florida elements. For example, Grand Isle is a physical and biological features coordinates. We reported Florida barrier island in Louisiana that is highly essential to the wintering piping plover coordinates to be UTM coordinates, developed. Christmas bird count data and will allow the public to better when in actuality they were the map indicate consistent use by plovers. We determine the critical habitat projection coordinates used within the only mapped from the hurricane boundaries. The textual unit State of Florida (Albers projection). protection levee gulfward. The descriptions allow us to capture the Another error was identified after the developed areas are currently from the dynamic nature of the coastal habitat by unit coordinates were published. This levee landward. describing each unit as including the error occurred in the North Carolina Comment 9: One commenter area extending out from the landward data. The datum of the source imagery suggested we add such terms as boundaries to the MLLW. In this way DOQQs (i.e., digital aerial photography) ‘‘bridges, piers, and aids to navigation’’ we can include in the designation we obtained was reported inaccurately. to the list of ‘‘developed sites.’’ intertidal areas that are essential The imagery was reported as North Our Response: We elected not to list foraging areas for piping plovers. Our American Datum 1927 (NAD27), when every conceivable type of ‘‘developed textual unit descriptions may also it was actually North American Datum site’’ because such a list would be describe important areas within the unit 1983 (NAD83). By utilizing the on-the- extensive and we would risk leaving out that are utilized by the piping plover, fly projection capability of the GIS some type of development. Thus we such as wind-tidal flats, and areas that software, the data was projected to believe that the appropriate course is to contain the primary constituent NAD27 and all line work was digitized. remain fairly general on this issue and elements. This introduced an error in the data that allow the Federal action agencies the Comment 12: One commenter shifted the features up to 500 meters. flexibility to determine which areas do suggested that the critical habitat We have resolved this problem in this or do not contain the primary boundaries not be fixed, but rather be final rule. As noted within this rule, our constituent elements. flexible so as to take into account the textual unit descriptions are the Comment 10: In the text of the rule, ever-changing nature of the coastal areas definitive source for determining the the Service excludes areas from critical and account for shifts in the locations of legal boundaries of the critical habitat habitat that do not contain the primary important piping plover habitat features. constituent elements, but fails to do so Our Response: As stated and designation. Thus, we will not be in the language amending 50 CFR 17.95. described in the ‘‘Methods’’ section of publishing UTMs or Latitude Longitude Our Response: This assertion is this final rule, we believe the needed coordinates as part of this final rule. incorrect, as the discussion on non- flexibility is provided in the textual unit Comment 14: Some commenters inclusion of non-suitable areas is given by unit descriptions that account for the pointed out that there were various at the end of the regulatory section of dynamic nature of plover habitat. These errors in the legal descriptions. For the proposed rule (see 65 FR 41812), unit descriptions are being published in example, the legal description for unit after the legal descriptions for the Texas the regulatory section of this rule as the FL–27, when plotted, did not match the units. However, in order to make this definitive source for determining the Federal Register maps. As such, language more obvious and so that it critical habitat boundaries. We landowners within erroneously clearly pertains to the entire recognize that important plover habitat described units were not properly designation, we have moved this may form over time in areas outside the notified of the designation, and critical discussion to the beginning of the designated boundaries and if it is habitat should therefore be re-proposed. regulatory portion of this final rule. determined to be warranted, the critical Our Response: See response to G.13. Comment 11: Verbally excluding habitat designation could be revised Due to an inadvertent error, the detailed areas from critical habitat is counter to through the rulemaking process in the maps we made were not published in regulations at 50 CFR 17.94(a), that future. the proposed rule; only the index maps require that critical habitat areas be Comment 13: Some commenters were published. However, verbal unit defined by surveyable landmarks found expressed concern that the Universal descriptions were published, as well as on standard topographic maps of the Transverse Mercator System (UTM) who to contact for more information. area. coordinates published in the proposed Detailed maps were available to the Our Response: This commenter is rule resulted in boundaries that were in public on the web at http:// likely referring to 50 CFR 17.94(b), error. The final rule should be written southeast.fws.gov. Legal notices were which states that critical habitats are to ensure that the UTM coordinates are published in major newspapers described by reference to surveyable consistent with the written descriptions announcing the public hearings and landmarks found on standard of the critical habitat units. included contact information and the topographic maps of the area. As stated Our Response: The coordinates we website address. In addition, site- above and elsewhere in this final rule, reported were generated by the specific maps were available at the piping plover habitat is composed of Geographic Information System (GIS) public hearings. Thus, we believe that highly dynamic areas that can change software that was used to create the the public had ample opportunity to quite rapidly, and are thus by their units. A GIS is a mapping software that determine whether an area was nature ephemeral. Thus, we defined the links information about where things included in the designation, based on critical habitat boundaries textually are with information about the area. the verbal unit descriptions, and to using visual references found on Digital Unlike a paper map, a GIS map can comment on the proposal.
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Comment 15: The maps in the the Act that the benefits of excluding an conditions; (3) formulate alternative proposed rule were of insufficient detail area from the designation outweigh the plans; (4) evaluate alternative plans; (5) for landowners to determine whether benefits of including the area as critical compare alternative plans; (6) select a their property is within the critical habitat. See the Exclusions Under plan. The proposal does not explain habitat boundaries. The final maps 4(b)(2) of the Act’’ section of this rule how the Service went through this should correct this. for a further discussion of this issue. process. Our Response: We acknowledge that Comment 18: The proposed rule Our Response: Please see our there was a problem with the maps as incorrectly characterized Unit TX–34 as ‘‘Methods’’ discussions in the proposed published in the proposed rule. comprising almost entirely State-owned and final rules, that explain the process Through an inadvertent error, the more lands. In fact, the gulf beach is privately we went through in arriving at this final detailed maps provided for publication owned to the mean high-tide line, and designation. Although the process does were not included in the proposed rule. the proposed area includes upland areas not precisely mirror the one suggested However, due to Federal Register that are privately owned. Further, the by the commenter, we believe that our constraints of page size, even more area on the southernmost end of approach was a logical and rational detailed maps may not provide enough Galveston Island includes 300 acres of approach to meeting the mandates of the resolution to allow some individual privately owned land, that were Act. The Act requires that our decisions landowners the ability to determine inaccurately portrayed on the map. The be based on the best scientific and whether their property is in or out of a map of Unit TX–34 is woefully commercial information available, and critical habitat unit. Thus, the maps outdated. does not require ‘‘reasonable scientific published in the Federal Register are Our Response: As described in the certainty.’’ intended for general guidance only, proposed rule, Unit TX–34 includes gulf Comment 2: The proposal provides while the textual unit descriptions beach and sand flats that belong to the very limited information on the criteria should be used for definitive State of Texas, and of which 57% is in and data used to determine the areas determinations. the floodtide delta. The area is proposed as critical habitat. For Comment 16: It is difficult to described as only including the delta to example, there was no discussion of the determine from the maps published the northwest of the causeway, and the data upon which the Service relied in with the proposed rule the exact beach to the northeast of the causeway. concluding that the proposed areas boundaries of the critical habitat units. Both sides of the San Luis Pass contain the primary constituent In some areas it appears that highways experience extremely high levels of elements, particularly in areas where were used as boundaries, and it is erosion averaging 10.2 m (33.8 ft) per plovers have not been recorded. More difficult to tell whether highway rights- year on the Galveston Island side, and supporting data should be provided. of-way are within the critical habitat 18 m (60.1 ft) per year on the Follet’s Our Response: We refer you to the units. The final rule should explicitly Island side (Morton 1989). As a result, ‘‘Methods’’ sections of the proposed and exclude highway rights-of-way. maps of this dynamic area are out of Our Response: We did not explicitly final rules. In those discussions, we date before they are published. We have provide information on the data exclude highway rights-of-way in this described the area in narrative form, and final designation, because some rights- considered throughout this process. mapped the area using aerial While those discussions only of-way containing the primary photography dated 1995. constituent elements may be essential to summarize the data used, we welcome Comment 19: Latitude and longitude interested individuals to contact us if piping plover conservation. Unit map information should be given to facilitate boundary lines as printed in the Federal they wish to review the detailed inclusion in the GIS of Federal, State, supporting information in our files. Register cannot be used to determine and local agencies. whether a project would be affecting the Our Response: Because the source Additional survey data this winter species or adversely modifying its data DOQQs imagery used to map confirmed that all units are occupied. The only areas included in the critical habitat. The textual unit critical habitat were projected, we chose proposed rule that did not have survey descriptions should be used for to report the legal descriptions in the data showing that they are used by definitive determinations as to whether proposed rule in projected values and plovers were the Mississippi River and an area is within the designated critical not latitude and longitude. We believed the Wax Lake Outlet Deltas. We habitat boundary. Federal agencies will that this methodology will facilitate included those areas because of the high need to determine whether actions they overlaying the data in any GIS with the probability of use by plovers due to the fund, authorize, or carry out may affect source imagery. However, in this final broad expanse of mudflats known to wintering piping plovers or their critical rule the definitive source for exist in the river deltas. Those areas are habitat. determining the precise legal Comment 17: Only the 86 percent of boundaries of the designation are the remote and difficult to access and thus the proposal that is public land should textual unit descriptions. had not been surveyed. We have be designated. surveyed these areas since the proposed Our Response: In selecting areas to Issue H: Best Information/Science rule (Mississippi River Delta in propose as critical habitat, we did not A number of commenters questioned December 2000, and the Wax Lake consider land ownership per se, but the accuracy of the information on Outlet Delta during the February rather selected areas based on whether which the proposal was based and International Piping Plover Survey). or not they were essential as indicated whether or not we used the best Forty plovers were found on a few small by recorded consistent plover use or scientific and commercial information dredged material islands in the areas where the habitat conditions available. Mississippi River Delta, none were indicated probable use by plovers. Areas Comment 1: The Service should found in the Wax Lake Outlet Delta. for which habitat conditions indicated follow the scientific decision-making Those areas of the Mississippi Delta probable plover use in Louisiana, were process used for all Federal water and where no plovers were observed were confirmed for occupancy this winter. related land resource studies. This not included and the entire Wax Lake The Act does not allow exclusion of requires six significant steps-(1) identify Outlet Delta was likewise not included areas based on land ownership unless and inventory problems and in the final rule. Additionally, during we determine under section 4(b)(2) of opportunities; (2) inventory and forecast the International Census in February
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2001, 40 piping plovers were observed endangered Great Lakes population. Why does a 6-inch tall, 2-ounce bird on the same dredged material islands in This population has approximately 32 need so much habitat? the Mississippi River Delta. Although pairs remaining, which winter in Our Response: The actual area of we do not have data to document use of locations throughout the southeast, critical habitat, as defined by the these areas from previous wintering thereby making each critical habitat unit primary constituent elements, is seasons, based on studies indicating that important to the survival and recovery considerably less than the coarse plovers exhibit a certain amount of site of that endangered population. Plover acreage included within the proposed fidelity (see our response to Comment use patterns may shift through time, boundaries. Critical habitat is A.11 above), and the large numbers of both within and among seasons and designated to identify areas essential to plovers observed at these sites, we have years. the conservation of the species, included these areas in the designation Comment 5: The designation should including identifying sufficient habitat because of the virtual certainty that they be delayed until plover activity is to achieve recovery. Further, wintering are consistently used. As we have studied in detail. piping plovers do not simply ‘‘occupy’’ stated, this designation is based on the Our Response: In this case, the court best scientific and commercial determined that we had failed to abide a certain static location, but rather move information available, as required by the by the requirements of the Act for throughout an area as its needs (e.g., Act. We welcome any additional data on designating critical habitat when foraging, roosting, refuge from high the piping plover and its habitat. prudent and determinable and ordered winds or severe storms) change from Comment 3: Critical habitat should be us to complete the critical habitat day to day and over time as a result of designated only in areas where the determination. We did so using the best the tides, weather, and other factors. scientific and commercial information species is present. Some areas have been Issue I: Definition of Critical Habitat proposed where there are no data to available, as required by the Act show that the piping plover occurs (4(b)(2)). While it is always preferable to Numerous commenters expressed there. have more information on virtually concerns that the areas designated were Our Response: In the proposed rule, every listed species, the Act does not either not essential to the conservation we acknowledged that ‘‘In some areas, allow for indefinite delays until such of the species, not in need of special adequate census data are not available information is acquired. Nonetheless, management considerations or to provide reliable presence or absence we will continue to use the best protection, or otherwise inconsistent information for the plover. These areas information available as we continue with the statutory requirements for are in remote locations where censuses the species’ recovery process, and may selecting areas to designate as critical are logistically difficult. However, the revise the critical habitat designation in habitat. physical and biological features the future if appropriate and necessary. Comment 1: Why is critical habitat essential to piping plovers are known to Comment 6: Has the Service be at least sporadically present in these considered less drastic alternatives such being designated in otherwise protected dynamic areas, and our belief that these as designating only preserved areas or areas, such as State lands, national areas support piping plovers when less developed areas, and regulating seashores, refuges, or parks? Managers essential habitat features are present is only those activities that are should have the opportunity to biologically sound’’ (65 FR 41785). troublesome to the plover? implement management actions that The only areas included in the Our Response: As described in both would avoid the additional regulatory proposed rule that did not have data on the proposed and final rules, the intent burden of critical habitat designation. piping plover presence were the of the critical habitat designation is to Our Response: As implied by this Mississippi River and the Wax Lake include all areas believed essential for commenter, areas not in need of special Outlet Deltas. These areas were the species’ conservation, which management do not meet the definition surveyed twice since the proposed rule. includes its recovery. It is our biological of critical habitat and are therefore not For the final rule, we have included conclusion that merely designating included in a critical habitat those areas that contain piping plover ‘‘preserved’’ areas or areas not subject to designation. We use the following three habitat and for which we had habitat threats would not be sufficient to criteria to determine if a management documented use by piping plovers. See provide for the species’ eventual plan provides adequate special response to H.2. recovery. We did, however, avoid a management or protection: (1) A current Comment 4: The Service should number of developed areas within the plan/agreement must be complete and provide the population data upon which range of the plover, designating only provide sufficient conservation benefit this proposal is based. The Service those areas we believe necessary for the specific to the species; (2) the plan must should also census each proposed area species’ conservation. provide assurances that the and designate only those areas with As to the regulatory effects of the conservation management strategies will designation, we will only formally high plover concentrations as critical be implemented; and (3) the plan must review actions under section 7 habitat. provide assurances that the Our Response: As stated in the consultation when Federal actions are conservation management strategies will proposed rule, the data upon which the likely to adversely affect the species or be effective, i.e., provide for periodic designation is based are available by its habitat. In these cases we monitoring and revisions as necessary. contacting our Corpus Christi, Texas, recommend that consultation be If all of these criteria are met, then the Ecological Services Field Office (see conducted regardless of whether the lands covered under the plan would no ADDRESSES section). Inclusion of all the habitat is officially designated as longer meet the definition of critical survey data in the proposed or final critical. As indicated in the Final habitat. rules would be impracticable. Economic Analysis, we believe that We agree that areas of high plover little if any incremental regulatory or Given the amount of time allowed to concentrations indicate that the areas economic effects above the listing will prepare the proposed designation, the are important to wintering piping result from this designation. wide distribution of wintering piping plovers. But areas with low, yet Comment 7: Based on population plovers, and the myriad of landowners consistent numbers are also important. numbers and the proposed acreage, the and land managers within the species’ This is true particularly for the Service has allotted 600 acres per bird. range, we were unable to do a
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comprehensive evaluation of all designated critical habitat. Regulations Because of this omission, in December management plans that could implementing the requirements of 1996, Defenders of Wildlife (Defenders) potentially meet the criteria listed section 7 (50 CFR 402.02) define filed a lawsuit against the Department of above. Although we did identify areas ‘‘jeopardize the continued existence’’ (of the Interior and the Service for failing to that have the potential for having a a species) and ‘‘destruction or adverse designate critical habitat for the piping management plan, primarily Federal modification’’ (of critical habitat) so plover. As a result of the lawsuit, the lands, and evaluated those plans if one similarly that the two prohibitions are court ordered us to publish a proposed was completed for the area. In the nearly identical, thus resulting in little critical habitat designation for the proposed rule we also solicited additional protection through critical piping plover in the breeding area in the information on reasons why any area habitat designation. Great Lakes by June 30, 2000, with a should or should not be considered Section 9 of the Act also provides final rule by April 30, 2001. We were critical habitat (65 FR 41793). The substantial protection to listed species also ordered to designate critical habitat ensuing public comments included by prohibiting any person (as opposed for the Great Plains population by May several instances where commenters to section 7 that involves only Federal 31, 2001, with a final rule by March 15, believed certain areas are currently agencies) from such activities as taking 2002. We have no evidence of managed compatibly with the species listed species without proper permits, as vandalism or other threats that may and should therefore be excluded from well as controlling transportation, occur based on disclosing the location the final designation. Those suggestions selling, and importing or exporting of this species. Thus, we determined are addressed under the ‘‘Site-specific listed species. Critical habitat is not that the appropriate course of action Comments’’ portion of this ‘‘Summary protected under section 9, so no effect would be to propose critical habitat for of Comments and Recommendations’’ on strictly non-Federal activities are all US wintering piping plovers on the section. We received no information added through critical habitat same schedule required, under court that indicated that any of the public designation. order, for the Great Lakes breeding land management plans met our three Despite the little additional regulatory population. criteria; therefore, no lands were benefit critical habitat may provide Comment 4: The Service has excluded based on ‘‘not [being] in need listed species, section 4(a)(3) of the Act disregarded the prohibitions in section of special management protection.’’ We requires that critical habitat be 3(5)(C) of the Act against designating the did, however, exclude the Padre Island designated for species listed as entire geographical area that could be National Seashore based on section threatened or endangered unless such occupied by the piping plover. 4(b)(2) of the Act. Please refer to the designation would not be prudent. Our Response: We did not designate ‘‘Exclusions Under 4(b)(2) of the Act’’ Further, we believe designation of the entire geographical area that can be section of this rule. critical habitat for wintering piping occupied by wintering piping plovers. We also note that we encourage plovers may be of some benefit. A In fact, the censuses upon which we management plans compatible with the critical habitat designation benefits based our initial identification of conservation of threatened and species conservation by identifying potential critical habitat areas have endangered species, and that critical important areas and by describing the detected less than half the piping plover habitat designation neither discourages features within those areas that are numbers known from their breeding such voluntary actions nor adds essential to conservation of the species, areas. One may infer that at least some significant regulatory burden. and alerting public and private entities piping plovers winter in areas other Management that does not adversely to the areas’ importance. Although the than those designated as critical habitat. affect listed species or their critical designation of critical habitat does not, Areas that were not included in critical habitat is not required to undergo formal in and of itself, restrict human activities habitat include many sites where section 7 consultation. within an area or mandate any specific plovers have been documented at least Comment 2: The piping plover management or recovery actions, it does once, but records do not indicate a already receives substantial protections, help focus Federal, State, and private consistent use. For example, in Florida such as under sections 7 and 9 of the conservation and management efforts in we did not include the South tip of Act. Why is additional protection such areas. Designating critical habitat Amelia Island, Nassau County; high necessary? The Service has repeatedly may also provide some educational or marsh and salt pans of Charlotte Harbor claimed that they expect no adverse informational benefits. State Buffer Preserve, Charlotte County; economic impacts beyond those Comment 3: When the Service listed and Passage Key National Wildlife attributable to listing. If this is so, why the piping plover in the 1980’s it did not Refuge, Manatee County. Additional not abandon this designation? Why designate critical habitat because it was sites are listed in Comments B.2 and subject landowners to uncertainty and believed unnecessary. Some B.3. A piping plover may be observed at additional bureaucracy? commenters questioned why we now any given time at any location along the Our Response: We agree that believe critical habitat designation is Gulf and Atlantic coasts. We included protections afforded listed species prudent. in this designation only the areas under sections 7 and 9 are substantial, Our Response: Section 4(a)(3) of the essential for the conservation and and that critical habitat designation Act states that when a species is added recovery of the species as supported by usually adds only marginal protections to the endangered species list, we must consistent use by piping plovers. above those already afforded listed designate critical habitat to the Comment 5: Critical habitat for species. Under section 7, Federal maximum extent prudent and wintering piping plovers is not agencies are required to utilize their determinable. The 1985 final listing rule determinable because their biological authorities to further the conservation of for the piping plover did not include a needs are not sufficiently well known. species and the ecosystems upon which critical habitat designation, not because Recovery plans for the species they depend. Federal agencies are it was unnecessary, but because it was recommend significant research on prohibited from implementing actions not determinable and so it was deferred wintering plovers; without such likely to jeopardize the continued for one year. We did not make a information it cannot be determined existence of a species or to destroy or prudency determination or designate with reasonable scientific certainty adversely modify a listed species’ critical habitat by the end of that year. which areas are essential to the species.
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Our Response: We are required to habitat needed to avoid short-term land management and habitat-modifying designate critical habitat for species at jeopardy or habitat in need of activities within the designated areas. the time they are listed under the Act to immediate intervention. Comment 1: How will the proposed the extent prudent and determinable Our Response: We disagree. The Act designation impact the future of Packery under section 4(a)(3). Regulations requires that areas designated as critical Channel? Will it have a minimal effect implementing the listing provisions of habitat be essential to the conservation as discussed, or will it cause the the Act state that critical habitat is not of the species. The term ‘‘conservation’’ Packery Channel opening to be shut determinable when the biological needs is defined as ‘‘* * * the use of all down completely? of the species are not sufficiently well methods and procedures necessary to Our Response: We completed a known to permit identification of an bring any [listed] species to the point at Biological Opinion (BO) on August 1, area as critical habitat (50 CFR which measures provided pursuant to 1994, for U.S. Army Corps of Engineers 424.12(a)(2)(ii)). In cases where critical this Act are no longer necessary * * *’’ Permit Number 18344(01) Fish habitat is not determinable the (i.e., the species is recovered and Trackers/Reopen Packery Channel regulations allow only a one-year eligible for removal from the list of Association. The BO included a extension. At the end of the extension threatened and endangered species). ‘‘finding of not likely to jeopardize the critical habitat must be designated based Since the stated purpose of the Act continued existence of the threatened on such data available at that time (50 includes ‘‘* * * to provide a program and endangered populations of the CFR 424.17(b)(2)). for the conservation of such endangered piping plover’’ based on the project It has been over 15 years since the species and threatened species * * *’’, design included in Permit 18344(01). piping plover was listed under the Act, it is clear that Congress intended the Refer to Comment E.3 for the and a great deal of information has provisions of the Act to be used for such circumstances requiring Federal actions become available since the listing conservation purposes rather than as that have already undergone section 7 occurred. While we agree that more stop-gap measures to prevent extinction. consultation to reinitiate that information would be preferable, we do Comment 8: The proposal contains consultation. not believe further delays in making this 686 miles of privately owned shoreline. Comment 2: Is it necessary to obtain designation would be legally defensible The Service justifies this by stating that a permit and contract an environmental under the statute and its regulations. In shoreline development poses the biggest consultant at the private landowner’s addition, the Act requires that our threat to plover habitat, especially along expense, because the property that he/ decisions be based on the best scientific the Texas Coast. However, the she wishes to build a house on is on the and commercial information available, regulatory basis for designation should beachfront, upland area, or sand dune? and does not require ‘‘reasonable be the evaluation of the habitat rather Our Response: Prior to procuring a scientific certainty.’’ than the potential for development. consultant, we suggest that you contact Comment 6: A conclusion that areas Our Response: As discussed above, the Service representative in your identified during population surveys are the critical habitat designation is based particular State (see the contact list in essential to the plover population is on an evaluation of habitat and the the ‘‘Effects of Critical Habitat speculative. Because a plover was survey data on piping plovers. This Designation’’ section of this rule for the sighted in an area does not make the critical habitat designation for the name and phone number of the person area essential to the species’ wintering population of the piping to contact). As discussed in comment conservation. plover includes areas that we know E.5, all landowners, public and private, Our Response: We agree that the mere currently support the species. Areas are responsible for making sure their sighting of one or more individuals of a described in the approved recovery actions do not result in the species does not necessarily mean the plans (USFWS 1988, 1996) as essential unauthorized taking of a listed species, area of the sighting is essential to the to the conservation of the wintering regardless of whether or not the activity species’ conservation. In fact, for most population of the piping plover are occurs within designated critical species it is difficult to know with being designated as critical habitat, if habitat. Take is defined as ‘‘harass, certainty that a particular area is recent data support consistent use and harm, pursue, hunt, shoot, wound, essential to its conservation. However, the habitat remains suitable. capture, collect, or attempt to engage in the Act clearly requires that we make Comment 9: The Service designated any such conduct.’’ Take is further such judgements based on the best areas that are inhabited by people and defined by regulation to include scientific and commercial information where plovers and people co-exist. ‘‘significant habitat modification or available. The census data tell us that Therefore critical habitat is unnecessary. degradation that actually kills or injures plovers occur in an area, from which we Our Response: We agree that piping wildlife.’’ This definition was upheld by can infer that the animal derives some plovers and people can co-exist in the U.S. Supreme Court in Sweet Home useful life-history benefit. We believe wintering areas. However, as explained Chapter of Communities for a Great these occurrence data constitute the best in this final rule, critical habitat is not Oregon et al. v. Babbitt, 515 U.S. 687 available information upon which to considered to be an optional process, (1995). base this designation. We also note that and the fact that people use areas used All Federal agencies are responsible the commenter did not suggest an by plovers does not provide sufficient to ensure that the actions they fund, alternative approach to arriving at a justification for not designating critical permit, or carry out do not result in biologically sound critical habitat habitat. We believe that the effect on jeopardizing the continued existence of designation. Other research has shown plovers of normal human presence in a listed species, regardless of critical what type of habitat features are their wintering habitat does not have habitat designation. ‘‘Jeopardize the necessary to provide for the life-cycle serious consequences to the plover at continued existence of’’ means to needs of the species. Together, this the population level. See our response engage in an action that would be information suggests to us which areas to Issue A.15 above. expected, directly or indirectly, to are essential for the conservation of the reduce appreciably the likelihood of species. Issue J: Effects of Designation both the survival and recovery of a Comment 7: Critical habitat should These comments involve issues listed species in the wild by reducing include only the minimum amount of related to the effects of designation on the reproduction, numbers, or
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distribution of that species (50 CFR 4(b)(2) of the Act, the effects of the resulting from the designation. While 402.02). Because we designated only critical habitat designation. we believe the analysis did a credible areas within the geographic range Comment 3: Some commenters stated job in identifying both current and occupied by the piping plover, any that they believed that the economic planned future land use activities activity that would result in an adverse analysis should be completed before the within proposed critical habitat, we also modification of the plover’s critical rule is formally proposed. believe that to speculate about long- habitat would virtually always also Our Response: Given the nature of term, future activities on particular jeopardize the continued existence of this rulemaking, we were unable to units, that are different than those the species. Federal agencies must complete the economic analysis at the currently being conducted or consult pursuant to section 7 of the Act time we formally proposed this rule to envisioned, adds little information of on all activities that will adversely affect the public. Both the proposed rule date value to the decision-making process. and final rule date were established as the plover both within and outside Comment 5: We received many designated critical habitat. a result of court rulings, that allowed less time than generally preferred by us comments concerning the impact that Issue K: Economic Comments to conduct a rulemaking. As a result, dredging and the disposal of dredged Numerous persons commented on the although we began the economic materials, along with beach expected economic effects of the analysis before the rule was formally nourishment, would have on critical designation and on the draft economic proposed, we were not able to complete habitat. analysis. it until later. Once we completed the Our Response: Our revised economic Comment 1: The designation of economic analysis, we published in the analysis addresses this issue in greater critical habitat on Padre Island National Federal Register a Notice of Availability specificity. In summary, we do not Seashore would restrict the ability to (65 FR 52691, August 30, 2000) and believe that beach nourishment explore and develop mineral operations gave the public 90 days to comment on activities, along with dredging and and cause a sizable economic impact if the analysis, along with other aspects of disposal activities, are likely to be indeed these restrictions are upheld. the rule. We have considered these impacted by this critical habitat Our Response: As discussed in the comments and have produced a revised designation. In the vast majority of cases ‘‘Exclusions Under 4(b)(2) of the Act’’ economic analysis, that we have we support beach nourishment section of this rule, we considered the submitted to OMB for review as part of activities as they benefit the wintering effects on exploration and development this rulemaking package. plover by providing them increased of mineral operations that would result Comment 4: Some commenters foraging habitat. Dredging and disposal from including Padre Island National believed that our economic analysis activities have also not been Seashore in the final designation. Based focused too narrowly on either current significantly impacted by the presence on our analysis under section 4(b)(2), or near-term planned activities at the of the plover, and we see no reason why we concluded that the benefits of expense of longer-term planned critical habitat designation would alter excluding Padre Island National activities. this scenario. Seashore were greater than the benefits Our Response: The revised analysis used a ten-year time horizon to identify Comment 6: We received several of including, and therefore, we have comments from citizens concerned excluded that area from the final likely current and planned activities that may be affected by critical habitat specifically about the impact that designation. critical habitat designation would have Comment 2: Some commenters stated designation. We limited our analysis to on Texas Gulf Coast activities including: that the DEA was inadequate because it a ten-year horizon because the (1) The exploration, development, and is based on the faulty assumption that estimation of future impacts becomes production of oil and gas reserves; (2) the designation will not result in any extremely speculative beyond that recreational use of coastal areas; (3) real- greater burden than under the point. As stated in the analysis, our estate development projects for ‘‘baseline’’ of the listing of the plover. approach for estimating the potential residential and commercial use; and (4) Relatedly, some commenters believed effects of critical habitat designation transportation of commodities on the that we should have quantified the cost followed four basic steps. First, the Gulf Intracoastal Waterway. One of designating the plover as an analysis identified land uses and economic study submitted by a endangered species in our baseline activities likely to be affected by critical commenter suggested that critical calculations. habitat designation. Second, the Our Response: The economic analysis analysis looked at Federal nexuses that habitat designation could result in a does determine that there is a slight may allow certain land uses and total net present value cost over 30 years additional burden due to the activities conducted on critical habitat of $261 to $979 million to the Laguna designation of critical habitat for to be consulted on under section 7 of Madre Environs economy. wintering piping plover and the the Act. Third, out of the activities Our Response: We believe that the economists attempted to quantify these likely to occur on critical habitat having above mentioned economic study costs in their analysis. See the a Federal nexus, the analysis considered submitted by BNP Petroleum ‘‘Economics Analysis’’ section of this the likelihood that the Service would Corporation overstates the effects that rule. consult with the Federal agency under may result from this designation. The While listing effects can be significant section 7 of the Act because such economic costs developed by the in some cases due to the prohibition on activities have the potential to adversely study’s authors depend on two main ‘‘taking’’ a listed species, Congress affect the plover or its critical habitat. assumptions. First, the authors assume specifically directed the Service to base Under this consideration, the analysis that the critical habitat being designated its listing decisions strictly on biological considered the likelihood that critical for the wintering plover, contrary to our considerations. Economic effects caused habitat designation would impose descriptions, consists of large areas of by listing the wintering population of additional effects beyond listing, unoccupied territory lacking the the piping plover as a federally including effects on section 7 necessary primary constituent elements protected threatened species, and by consultations and potential mitigation. needed to support the plover. As a other statutes, are the baseline against Finally, the analysis also considered the result, the authors believe that delays which we evaluated, under section potential for any further indirect effects will occur to future activities as project
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proponents will need to enter into critical habitat areas. This makes it nests but such effects are not expected consultations with the Service, that will highly unlikely critical habitat would to occur in the wintering areas affected enviably lead to delays causing have any effect. Due to the distance by this rule because of the fact that the economic effects. future production areas are from the birds are mobile and not nesting during Regarding the first assumption, shoreline, products will most likely be the wintering season. Furthermore, in a critical habitat, by definition, only barged into existing ports with recent study that looked at the effect of includes those areas containing the offloading facilities because it will be beach closures in breeding areas, no primary constituent elements identified uneconomical or technologically significant economic effects were in the rule. We believe that all of these infeasible to connect deepwater identified due to the availability of areas are currently occupied by the platforms to the existing infrastructure nearby beaches (Unsworth, et al., An wintering plover and that Federal of near-shore pipelines. As a result, Economic Analysis of Piping Plover agencies are already required to ensure critical habitat areas are highly unlikely Recovery Activities in the Atlantic that the activities they authorize, fund, to be affected by future industry Coast, 1998). or carry out are not likely to jeopardize activities. In addition, we do not believe Our revised economic analysis also the continued existence of the plover. that the oil and gas industry will be considered in greater detail the effect Federal agencies already must notify us affected by any significant increase in the rule could have on real-estate of activities that may adversely affect section 7 consultations because of this development projects. Using a the plover. Because we are only rulemaking, and we disagree with the conservative assumption that critical designating areas occupied by the findings in their study. habitat designation could result in one plover and because any activities that That being said, the economic to two and one-half percent of forgone may adversely modify critical habitat analysis prepared for the Service finds future lot development due to project would also likely jeopardize the that the designation of critical habitat modifications resulting from critical continued existence of the species, we for the piping plover may result in habitat designation, the analysis found do not believe that critical habitat additional section 7 consultation costs that total costs to developers over a ten- designation will have any appreciable because future consultations would year time frame could range from about economic effect above current effects need to address critical habitat issues, in $1.5 million to $4.5 million. This resulting from the listing of the plover addition to the effects on the species, represents less than one percent of the in 1985. and would therefore require more time. total estimated value of future planned The BNP study estimates impacts to Additionally, we acknowledge that housing in southern Texas. the natural gas industry, which some Federal agencies may initiate Furthermore, the revised analysis found constitutes the majority of their study’s consultation more often than before, no evidence to support the claim that effects, based on the key assumption because critical habitat has increased the section 7 consultation process has that critical habitat designation could their awareness of the species. Even resulted in significant time delay result in project delays between six though consideration of critical habitat estimates as argued by the commenter. months and two years arising from is not likely to impose further project section 7 consultations. In a review of modifications beyond those required by Finally, the revised economic analysis piping plover section 7 consultations in the listing of the plover, project also further considered the effect the the Gulf Coast Sates where critical proponents may nonetheless incur costs rule could have on commodity habitat is being designated, very few above and beyond those attributable to transportation within the Gulf involved oil and gas exploration and the listing of the plover as a threatened Intracoastal Waterway. The commenter production activities. Mostly this is species. These costs might include the was specifically concerned that the because existing oil and gas production value of time spent in conducting designation of critical habitat could activity takes place offshore and is not section 7 consultations beyond those result in the closure of the waterway on the beaches or flats occupied by associated with the listing, and/or because the Service could require plover and as a result these activities delays in implementing oil and gas disposal of dredged materials to be were not likely to adversely affect the activities. Refer to the ‘‘Exclusions disposed further from the beach areas, species. Also, in many instances where Under 4(b)(2) of the Act’’ section of this which could become cost prohibitive. oil and gas production activities affect rule for our analysis under section This scenario, however, is highly the areas occupied by the plover, such 4(b)(2) of the Act. unlikely as dredging and disposal as pipeline crossings and gathering Similarly, we do not believe that this operations in the area have taken place stations for near shore production, rule will have a significant effect on the continually since the plover was either the environmental impacts to the other three factors: (1) Recreational use originally listed as an endangered plover were not significant enough to of coastal areas; (2) real-estate species in 1985. Because this area is warrant a formal consultation or the development projects for residential and occupied by the plover, any effects on activity lacked a Federal nexus. commercial use; and (3) transportation dredging and disposal activities in the Although the permitting process for oil of commodities on the Gulf Intracoastal future would occur regardless of critical and gas exploration and production Waterway. First, we do not believe that habitat designation. However, with a activities is complex and involves a recreational use of coastal areas will be single, unique exception that is myriad of Federal, State, and local affected because no such effects have addressed in the revised analysis, requirements, a formal consultation is been experienced since the plover was dredging and disposal activities have normally completed within 135 days. listed in 1985, combined with the fact not been negatively impacted by the We therefore disagree with the study’s that we are only designating occupied presence of the plover and consequently authors that section 7 consultations can critical habitat. Furthermore, the plovers are not expected to be further impacted lead to significant project delays for the spend the wintering season foraging and by critical habitat. industry. roosting and then migrate north in the Comment 7: We received many Also, as noted in the BNP study, summer where they breed. Breeding comments from citizens of Marco future production in the Gulf Coast is areas in the north may experience Island, Florida concerned over the likely to occur in very deep water partial or temporary closures during the impact that critical habitat would have (14,000 to 18,000 feet), well away from breeding season to protect ground level on their recreational beach-use activities
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as well as spillover effects to their local Order 12898 applies to critical habitat priorities, we would publish a proposed housing values. designations. rule in the Federal Register to revise the Our Response: As mentioned critical habitat boundaries; or Issue L: Critical Habitat and Habitat previously, we do not believe that (5) Remove designated critical habitat Conservation Plans (HCPs) recreational use of coastal areas will be entirely from within the boundaries of significantly affected because In the proposed rule we requested HCPs when the plans are approved recreational impacts since listing have input on alternative approaches to (including preserve lands), on the been minimal and only habitat that is issuing any future incidental take premise that the HCP establishes long- currently occupied by the wintering permits under section 10(a)(1)(B) of the term commitments to conserve the plover is being designated. Again, while Act, and how that process may be species and no additional special beach closures, or more commonly influenced by critical habitat management or protection is required. beach restrictions, have occurred to designation. Five alternatives were This exclusion from critical habitat protect the piping plover, these closures provided: would occur automatically upon (1) Retain critical habitat designation occur during breeding season in the issuance of the incidental take permit. within the HCP boundaries and use the summer. Plovers typically migrate north The public would be notified and have section 7 consultation process on the in the spring and summer seasons to the opportunity to comment on the issuance of the incidental take permit to breed and occupy areas outside of revision of designated critical habitat ensure that any take we authorize will wintering habitat, which this rule during the public notification process not destroy or adversely modify critical addresses. Furthermore, in a recent for HCP approval and permitting. study that looked at the possible effects habitat; (2) Revise the critical habitat Comment 1: All who commented on of beach closures in breeding areas, no this issue favor alternative 1, to retain significant economic effects were designation upon approval of the HCP and issuance of the section 10(a)(1)(B) critical habitat within any future HCP identified due to the availability of boundaries and use the section 7 nearby beaches (Unsworth, et al., An permit to retain only preserve areas, on the premise that they encompass areas consultation process to evaluate the Economic Analysis of Piping Plover effects of the HCP on critical habitat. Recovery Activities in the Atlantic essential for the conservation of the species within the HCP area and require Most commenters believed that Coast, 1998). alternatives 3 through 5 are illegal under Comment 8: Many commenters special management and protection in the Act, and that alternative 2 would expressed concern that the designation the future. Assuming that we conclude, likely be illegal as well. includes unoccupied habitat that does at the time an HCP is approved and the Our Response: We recognize that not contain the primary constituent associated incidental take permit is critical habitat is only one of many elements necessary to support the issued, that the plan protects those areas conservation tools for federally listed plovers and that the DEA overlooked essential to the conservation of the species. HCPs are one of the most this effect. piping plover, we would revise the Our Response: The determination of critical habitat designation to exclude important tools for reconciling land use whether or not proposed critical habitat areas outside the reserves, preserves, or with the conservation of listed species is within the geographic range occupied other conservation lands established on non-Federal lands. Section 4(b)(2) of by the plovers is part of the biological under the plan. Consistent with our the Act allows us to exclude areas from decision-making process and lies listing program priorities, we would critical habitat designation where the beyond the scope of an economic publish a proposed rule in the Federal benefits of exclusion outweigh the analysis. For a discussion of the Register to revise the critical habitat benefits of designation, provided the biological justification of why we boundaries; exclusion will not result in the believe the area being designated is (3) As in (2) above, retain only extinction of the species. We believe within the geographical area occupied preserve lands within the critical habitat that in most instances the benefits of by the plover, see our responses to Issue designation, on the premise that they excluding HCPs from critical habitat A. encompass areas essential for designations will outweigh the benefits Comment 9: The Environmental conservation of the species within the of including them. A detailed rationale Protection Agency (EPA) indicated that HCP area and require special for this determination can be found in our economic analysis should evaluate management and protection in the the ‘‘Exclusions Under 4(b)(2) of the Executive Order 12898, Federal Actions future. However, under this approach, Act’’ section of this final rule. to Address Environmental Justice in the exclusion of areas outside the We anticipate that any future HCPs in Minority Populations and Low-Income preserve lands from critical habitat the range of wintering piping plovers Populations. would occur automatically upon will include it as a covered species and Our Response: Executive Order 12898 issuance of the incidental take permit. provide for its long-term conservation. requires that each Federal agency make The public would be notified and have We expect that HCPs undertaken by achieving environmental justice part of the opportunity to comment on the local jurisdictions (e.g., counties, cities) its mission by identifying and boundaries of the preserve lands and the and other parties will identify, protect, addressing, as appropriate, revision of designated critical habitat and provide appropriate management disproportionately high and adverse during the public review and comment for those specific lands within the human health or environmental effects process for HCP approval and boundaries of the plans that are of its programs, policies, and activities permitting; essential for the long-term conservation on minorities and low-income (4) Remove designated critical habitat of the species. Section 10(a)(1)(B) of the populations. We do not believe that the entirely from within the boundaries of Act states that HCPs must meet issuance designation of critical habitat for an HCP when the plan is approved criteria, including minimizing and endangered and threatened species (including preserve lands), on the mitigating any take of the listed species results in any changes to human health premise that the HCP establishes long- covered by the permit to the extent or environmental effects on surrounding term commitments to conserve the practicable, and that the taking must not human populations, regardless of their species and no further special appreciably reduce the likelihood of the socioeconomic characterization. As management or protection is required. survival and recovery of the species in such, we do not believe that Executive Consistent with our listing program the wild. We fully expect that our future
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analyses of HCPs and section 10(a)(1)(B) Our Response: The wintering range of of plover use. This is generally the permits under section 7 will show that piping plovers from all three breeding approach we took. We sincerely covered activities carried out in populations overlaps the documented appreciate the responses of these peer accordance with the provisions of the breeding range of the Atlantic Coast reviewers, and believe their input has HCP and section 10(a)(1)(B) permits will population in North Carolina and at one provided a great deal of support for this not result in the destruction or adverse site in northern South Carolina. The designation. modification of critical habitat designation of critical habitat for Critical Habitat designated for the piping plover. wintering and migrating piping plovers In the event that future HCPs covering in this final rule, however, reflects the Critical habitat is defined in section wintering piping plovers are developed known distribution and habitat 3(5)(A) of the Act as: (i) The specific within the boundaries of designated requirements of piping plovers during areas within the geographic area critical habitat, we will work with the non-breeding portion of their life- occupied by a species, at the time it is applicants to ensure that the HCPs cycle, but provides the protection listed in accordance with the Act, on provide for protection and management offered by critical habitat year-round. which are found those physical or of habitat areas essential for the Outside of their breeding range, piping biological features (I) essential to the conservation of the piping plover by plovers are protected as a threatened conservation of the species and (II) that either directing development and species regardless of their originating may require special management habitat modification to nonessential breeding population, and this critical considerations or protection; and (ii) areas or appropriately modifying habitat designation encompasses specific areas outside the geographic activities within essential habitat areas wintering habitat essential to the area occupied by a species at the time so that such activities will not adversely conservation of piping plovers from all it is listed, upon determination that modify the primary constituent three breeding populations. such areas are essential for the elements. The HCP development Comment 2: In order to comply with conservation of the species. process provides an opportunity for the Act the Service must designate ‘‘Conservation’’ means the use of all more intensive data collection and critical habitat for breeding and methods and procedures that are analysis regarding the use of particular migratory piping plovers on the Atlantic necessary to bring an endangered or habitat areas by the piping plover. We Coast. threatened species to the point at which will provide technical assistance and Our Response: We are currently listing under the Act is no longer work closely with applicants throughout required to complete a significant necessary. Thus, critical habitat areas the development of future HCPs to number of listing-related actions, should provide sufficient habitat to identify lands essential for the long-term pursuant to court orders and judicially support the species at the population conservation of the species and approved settlement agreements. level and geographic distribution that appropriate management of those lands. Complying with these court orders and are necessary for recovery. If the piping plover is a covered species settlement agreements will require the Section 4(b)(2) of the Act requires that under future HCPs, the plans should Service to spend nearly all of its listing we base critical habitat proposals upon provide for the long term conservation and critical habitat funding for fiscal the best scientific and commercial data of the species. The take minimization year 2001, and a substantial amount in available, after taking into consideration and mitigation measures provided fiscal year 2002. We are currently the economic impact, and any other under these HCPs are expected to working to prioritize our critical habitat relevant impact, of specifying any adequately protect the essential habitat workload within the Act’s listing budget particular area as critical habitat. We lands designated as critical habitat in allocated by Congress. The priority for may exclude areas from critical habitat this rule, such that the value of these designating critical habitat for the designation when the benefits of lands for the survival and recovery of Atlantic Coast breeding population of excluding those areas outweigh the the piping plover is not appreciably piping plovers relative to other species benefits of including the areas within diminished through direct or indirect and pending litigation has not yet been the critical habitat, providing the alterations. If an HCP that addresses the determined. The other two peer exclusion will not result in the piping plover as a covered species is reviewers did not respond. extinction of the species. ultimately approved, we may reassess In order to be included in a critical Peer Review the relevant critical habitat boundaries habitat designation, the habitat must in light of the protection and In accordance with our policy first be ‘‘essential to the conservation of management provided by the HCP. We published on July 1, 1994 (59 FR the species.’’ Critical habitat may seek to undertake this review when 34270), we solicited independent expert designations identify, to the extent the HCP is approved, but funding opinions from five persons who are known using the best scientific and constraints may influence the timing of familiar with this species to peer-review commercial data available, habitat areas such a review. However, an HCP can the proposed critical habitat that provide essential life-cycle needs of proceed without a concurrent designation. Three of these experts the species (i.e., areas on which are amendment to the critical habitat provided us with a written response found the primary constituent elements, designation should all involved parties generally supporting the designation as defined at 50 CFR 424.12(b)). agree. and providing additional information, Section 4 requires that we designate that we have incorporated into the rule critical habitat at the time of listing and Issue M: Other Comments as appropriate. based on what we know at the time of Comment 1: The Service was ordered One of the reviewers stated her view the designation. We are required to base to designate critical habitat for piping that only sites with recorded plover use our designations on what, at the time of plovers breeding in the Great Lakes and should be designated, and that the designation, we believe to be essential Great Plains states. How is the Service designation could be subsequently to the species and in need of special addressing the Atlantic Coast breeding revised as new sites become known. management considerations or population that might breed or winter in However, she also stated her support for protection. Great Lakes/Great Plains wintering designating larger areas when at least Our regulations state that, ‘‘The locations? some of these larger units have records Secretary shall designate as critical
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habitat areas outside the geographic area best available information at the time of designated as critical habitat are most presently occupied by the species only designation will not control the appropriately addressed in recovery and when a designation limited to its direction and substance of future management plans, and through section present range would be inadequate to recovery plans, habitat conservation 7 consultation. ensure the conservation of the species.’’ plans, or other species conservation Primary Constituent Elements (50 CFR 424.12(e)). Accordingly, we planning efforts if new information will not designate critical habitat in available to these planning efforts calls In accordance with section 3(5)(A)(i) areas outside the geographic area for a different outcome. of the Act and regulations at 50 CFR occupied by the species, unless the best This critical habitat designation for 424.12, in determining which areas to available scientific and commercial data the wintering population of the piping propose as critical habitat, we are demonstrate that the conservation needs plover includes areas that we know required to base critical habitat of the species can not be met by a currently support the species. Areas determinations on the best scientific designation that is limited to areas described in the approved recovery and commercial data available and to occupied by the species. plans (USFWS 1988, 1996) as essential consider those physical and biological The Service’s Policy on Information to the conservation of the wintering features that are essential to the Standards Under the Endangered population of the piping plover are conservation of the species and that may Species Act, published in the Federal being designated as critical habitat, if require special management Register on July 1, 1994 (Vol. 59, p. recent data support consistent use and considerations and protection. Such 34271), provides criteria, establishes the habitat remains suitable. However, requirements include, but are not procedures, and provides guidance to the recovery plans did not include the limited to, space for individual and ensure that decisions made by the most recent comprehensive winter population growth, and for normal Service represent the best scientific and survey data and, therefore, the plans did behavior; food, water, air, light, commercial data available. It requires not identify all possible areas essential minerals, or other nutritional or Service biologists, to the extent to the survival and recovery of the physiological requirements; cover or consistent with the Act and with the use species. Thus, we identified additional shelter; and habitats that are protected of the best scientific and commercial areas essential to the species’ from disturbance or are representative of data available, to use primary and conservation, based upon unpublished the historic geographical and ecological original sources of information as the data collected by state agencies, distributions of a species. basis for recommendations to designate Christmas bird counts, individual Behavioral observations of piping critical habitat. When determining birders, master’s theses (Nicholls 1989, plovers on the wintering grounds which areas are critical habitat, a Climo 1998) and published data suggest that they spend the majority of primary source of information should be (Sprandel et al. 1997). their time foraging (Nicholls and the listing package for the species. Designation of critical habitat can Baldassarre 1990b; Drake 1999a, 1999b). Additional information may be obtained help focus conservation activities for a Primary prey for wintering plovers from a recovery plan, articles in peer- listed species by identifying areas that includes polychaete marine worms, reviewed journals, conservation plans contain the physical and biological various crustaceans, insects, and developed by states and counties, features that are essential for the occasionally bivalve mollusks (Nicholls scientific status surveys and studies, conservation of that species. 1989; Zonick and Ryan 1995), which and biological assessments or other Designation of critical habitat alerts the they peck from on top or just beneath unpublished materials (i.e., gray public as well as land-managing the surface of moist or wet sand, mud, literature). agencies to the importance of these or fine shell. In some cases, this Habitat is often dynamic, and species areas. substrate may be covered by a mat of may move from one area to another over Critical habitat receives protection blue-green algae. When not foraging, time. Furthermore, we recognize that under section 7 of the Act through the plovers undertake various maintenance designation of critical habitat may not prohibition against destruction or activities including roosting, preening, include all of the habitat areas that may adverse modification of critical habitat bathing, aggressive encounters (with eventually be determined to be by actions carried out, funded, or other piping plovers and other species), necessary for the recovery of the authorized by a Federal agency. Aside and moving among available habitat species. For these reasons, all should from the protection that may be locations (Zonick and Ryan 1996). The understand that critical habitat provided under section 7, the Act does habitats used by wintering birds include designations do not signal that habitat not provide other forms of protection to beaches, mud flats, sand flats, algal flats, outside the designation is unimportant lands designated as critical habitat. and washover passes (areas where or may not be required for recovery. Because consultation under section 7 of breaks in the sand dunes result in an Areas outside the critical habitat the Act does not apply to activities on inlet). Individual plovers tend to return designation will continue to be subject private or other non-Federal land that to the same wintering sites year after to conservation actions that may be do not involve a Federal action, critical year (Nicholls and Baldassarre 1990b, implemented under section 7(a)(1) and habitat designation would not afford Drake 1999a). Wintering plovers are to the regulatory protections afforded by any protection under the Act from such dependent on a mosaic of habitat the section 7(a)(2) jeopardy standard activities on these lands. patches, and move among these patches and the section 9 take prohibition, as Designating critical habitat does not, depending on local weather and tidal determined on the basis of the best in itself, lead to the recovery of a listed conditions (Drake 1999b). available information at the time of the species. The designation does not Based upon the behavioral action. We specifically anticipate that establish a reserve, create a management characteristics of wintering piping federally funded or assisted projects plan, establish numerical population plovers, we have determined that the affecting listed species outside their goals, prescribe specific management primary constituent elements essential designated critical habitat areas may practices (inside or outside of critical for the conservation of wintering piping still result in jeopardy findings in some habitat), or directly affect areas not plovers are those habitat components cases. Similarly, critical habitat designated as critical habitat. Specific that support foraging, roosting, and designations made on the basis of the management recommendations for areas sheltering and the physical features
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necessary for maintaining the natural these features are in a constant state of over more than one wintering season) by processes that support these habitat change; they may disappear, only to be piping plovers within this designation. components. The primary constituent replaced nearby as coastal processes act The only areas included in the proposed elements are found in geologically on these habitats. Given that piping rule that did not have survey data dynamic coastal areas that support plovers evolved in this dynamic system, showing that they are used by plovers intertidal beaches and flats (between and that they are dependent upon these were the Mississippi River and the Wax annual low tide and annual high tide) ever-changing features for their Lake Outlet Deltas. We included those and associated dune systems and flats continued survival and eventual areas in the proposed rule because of above annual high tide. recovery, our critical habitat boundaries the high probability of use by plovers Important components (primary incorporate sites that experience these due to the broad expanse of mudflats constituent elements) of intertidal flats natural processes and include sites that known to exist in the river deltas. include sand and/or mud flats with no may lose and later develop appropriate However, adequate census data were not or very sparse emergent vegetation. In habitat components. available to provide reliable presence or some cases, these flats may be covered In most areas, wintering piping absence information for the plover until or partially covered by a mat of blue- plovers are dependent on a mosaic of recently (U.S. Fish and Wildlife Service green algae. Adjacent unvegetated or sites distributed throughout the and Louisiana Department of Wildlife sparsely vegetated sand, mud, or algal landscape. The annual, daily, and even and Fisheries unpublished data, 2001), flats above high tide are also important, hourly availability of the habitat patches because these areas are remote and especially for roosting piping plovers. is dependent on local weather and tidal difficult to access and thus had not been Such sites may have debris, detritus conditions. For example, a single piping surveyed. Since the proposed rule, we (decaying organic matter), or micro- plover may leave a site if it becomes have surveyed these areas (Mississippi topographic relief (less than 50 cm inundated by a high tide or storm event, River Delta in December 2000; and the above substrate surface) offering refuge or if high winds or cold temperatures Wax Lake Outlet Delta during the from high winds and cold weather. make the site unsuitable for foraging or February International Piping Plover Important components of the beach/ roosting. This bird will move to other Survey). Forty plovers were found on a dune ecosystem include surf-cast algae patches within the landscape mosaic few small dredged material islands in for feeding of prey, sparsely vegetated that might provide refuge from the Mississippi River Delta, none were backbeach (beach area above mean high inclement weather conditions, or that found in the Wax Lake Outlet Delta. tide seaward of the dune line, or in simply provide a roosting site until Those areas of the Mississippi Delta cases where no dunes exist, seaward of conditions become favorable to resume where no plovers were observed were a delineating feature such as a foraging. not included (portions of LA–6) and the vegetation line, structure, or road) for Methods entire Wax Lake Outlet Delta (portions roosting and refuge during storms, spits of Unit LA–2) was also not included in (a small point of land, especially sand, In determining areas that are essential to conserve the wintering population of the final rule. This has resulted in less running into water) for feeding and acreage being designated in Louisiana. roosting, salterns (bare sand flats in the piping plover, we solicited information from knowledgeable biologists and Additionally, during the International center of mangrove ecosystems that are Census in February 2001, 40 piping found above mean high water and are reviewed the available information pertaining to habitat requirements of the plovers were observed on the same only irregularly flushed with sea water dredged material islands in the (Myers and Ewel 1990)) (biologists have species. We used areas identified in Mississippi River Delta. Although we do documented use of salterns by piping approved recovery plans and current not have data to document use of these plovers in southwest Florida) and draft recovery plans to initially suggest areas over more than one wintering washover areas for feeding and roosting. important areas essential for the season, based on studies indicating that Washover areas are broad, unvegetated recovery of the species. These areas plovers exhibit a certain amount of site zones with little or no topographic were then further evaluated using site- fidelity (see our response to Comment relief, that are formed and maintained specific data, such as documented bird A.11 above.), and the large numbers of by the action of hurricanes, storm surge, observations. To map areas essential to plovers observed at these sites, we or other extreme wave action. Several of the conservation of the species, we used consider it virtually certain that these these components (sparse vegetation, GIS (described in our response to little or no topographic relief) are comment G.3) and data on known areas are consistently used and have mimicked in artificial habitat types used piping plover wintering locations, included them in the designation and less commonly by piping plovers, but digital aerial photographs and regional consider these areas essential to the that are considered critical habitat (e.g., shoreline-defining electronic files. conservation of the species. dredge spoil sites). Sources of data providing these For the proposed rule, units and These habitat components are a result locations include two international shorelines were mapped at variable of the dynamic geological processes that piping plover censuses (conducted by scales (zoom factors) and with less dominate coastal landforms throughout State and Federal biologists and local detail. For the final rule, all units and the wintering range of piping plovers. birders) carried out in January of 1991 shoreline were mapped at 1:5000 or These geologically dynamic coastal and 1996, published reports (a complete larger (greater zoom) scale. In addition regions are controlled by processes of list of all references cited in this final to the standardized mapping scale, the erosion, accretion, succession, and sea- rule are available upon request from the units and shoreline were mapped more level change. The integrity of the habitat Corpus Christi Ecological Services Field precisely. This change in mapping components depends upon daily tidal Office, see ADDRESSES section), technique and detail resulted in an events and regular sediment transport Christmas bird counts, and other data increase in reported total mapped processes, as well as episodic, high- from surveys focusing on shorebird shoreline kilometers and miles for some magnitude storm events; these processes distribution and abundance. states. This also resulted in increases in are associated with the formation and We have included those areas along reported mapped shoreline distances by movement of barrier islands, inlets, and the coast for which occurrence data ownership for some states. It also other coastal landforms. By their nature, indicate a consistent use (observations affected the reported total and
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ownership acreages, in some cases storm surges, flood events, and other exposed oil and gas pipelines, and resulting in an apparent increased area natural geo-physical alterations of similar structures. These areas do not while in others the result was an beaches and shorelines. Thus, to best contain primary constituent elements apparent decrease in area. However, the insure that areas considered essential to essential for piping plover conservation areas included in the critical habitat the piping plover are included in this and are not considered critical habitat designation are the same areas that we designation, our textual unit even though they are within the mapped verbally described in the unit-by-unit descriptions will constitute the critical habitat unit boundaries. The descriptions in the proposed rule, definitive determination as to whether Service will continue to explore ways in except for areas which we omitted in an area is within the critical habitat which to identify areas within mapped the final designation (as described boundary. Our textual unit descriptions critical habitat boundaries that are not below in the ‘‘Summary of Changes describe the geography of the area using considered critical habitat because they From the Proposed Rule’’ section). reference points, including the areas do not contain the primary constituent In the proposed rule, a single buffer from the landward boundaries to the elements essential for piping plover distance was set for all units in all states MLLW (which encompasses intertidal conservation. (500 m (1,640 ft)). Since this areas that are essential foraging areas for methodology resulted in areas of water piping plovers) and describes areas Critical Habitat Designation/Land (deeper than MLLW) and areas of dense within the unit that are utilized by the Ownership vegetation being included in the piping plover and contain the primary designation, which are not utilized by constituent elements (e.g., upland areas The critical habitat areas contained piping plovers, we abandoned this used for roosting and wind tidal flats within the conservation units described methodology for a more precise means used for foraging). below constitute our best evaluation of of defining the areas that contain the For the proposed rule, ownership was areas needed for the conservation of the physical and biological features assigned to three classes within a unit wintering piping plover. We may revise essential to the wintering piping plover. (Federal, State, and private). Federal critical habitat through a rulemaking This change in methodology results in lands were those federally owned; State process if new information becomes smaller units of designated critical lands and waters were those State available in the future. habitat than that of the proposed rule. owned; and private were all non-Federal We calculated linear distances of In order to capture the dynamic nature or non-State owned lands. For this final critical habitat shoreline (in kilometers of the coastal habitat, and the intertidal rule, we have 3 classes (Federal, State, and miles) by ownership for each State areas used by the piping plover, we and other) for mapped shoreline and 3 (Table 1). In addition, State-level values have textually described each unit as classes (Federal, State, and other) for of area in hectares and acres were including the area extending out from mapped unit area. Assignment is as the landward boundaries to the MLLW. follows: Federal—federally owned calculated for the critical habitat units MLLW, as defined in our response to lands, State—State owned lands, and by ownership (Table 2). Ownership for comment A.12, is the mean of the lower Other—non-Federal or non-State owned both the shoreline and units were low water height of each tidal day lands. In the proposed rule, there were broken into three classes (Federal— observed over the National Tidal Datum errors in the values reported in Table 2 Federally owned lands, State—State Epoch. While, MLLW is published for Alabama and Texas, which we have owned lands, and Other—non-Federal information that can be determined corrected. or non-State mapped lands). through nautical charts, it is not In the final rule, to the maximum Assignment of ownership was based on currently available in a GIS version. extent practicable, we mapped critical existing digital State-level managed/ Designating specific locations for habitat in sufficient detail to exclude protected lands geodataset (GIS data set) critical habitat for the piping plovers is currently developed sites. However, we where possible. If no existing digital difficult because the coastal areas they were unable to exclude all buildings, data were available, ownership was use are constantly changing due to marinas, paved areas, boat ramps, assigned based on other data sources.
TABLE 1.—APPROXIMATE SHORELINE DISTANCES OF DESIGNATED CRITICAL HABITAT FOR WINTERING PIPING PLOVER BY STATE (ROWS) AND OWNERSHIP (COLUMNS) IN KILOMETERS (MILES)
Federal State Other Total
NC ...... 1,24.9(77.4) 44.9(27.8) 33.5(20.8) 203.3(126.0) SC ...... 25.2(15.6) 31.6(19.6) 43.9(27.2) 100.7(62.4) GA ...... 52.3(32.4) 42.7(26.5) 39.7(24.6) 134.7(83.5) FL ...... 109.0(67.6) 193.2(119.8) 38.6(23.9) 340.8(211.3 ) AL ...... 16.1(10.1) 21.8(13.6) 38.5(24.0) 76.4(47.7) MS ...... 98.2(61.4) 0.0(0.0) 105.9(66.2) 204.1(127.6 ) LA ...... 143.2(89.5) 236.1(147.6) 168.6(105.4) 547.9(342.5) TX ...... 88.2(54.7) 38.8(24.1) 1,156.8(718.5) 1,283.8(797.3)
Total ...... 657.1(408.7) 609.1(379.0) 1,625.5(1,010.6) 2,891.7(1,798.3)
TABLE 2.—APPROXIMATE LAND AREA OF DESIGNATED CRITICAL HABITAT UNITS FOR WINTERING PIPING PLOVER BY STATE (ROWS) AND OWNERSHIP (COLUMNS) IN HECTARES (ACRES)
Federal 1 State 1 Other 1 Total
NC ...... 5,614(13,866) 2,062(5,093) 938(2,318) 8,614(21,277) SC ...... 388(958) 663(1,639) 1,222(3,018) 2,273(5,615) GA ...... 1,734(4,285) 1,437(3,551) 1,333(3,294) 4,504(11,130)
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TABLE 2.—APPROXIMATE LAND AREA OF DESIGNATED CRITICAL HABITAT UNITS FOR WINTERING PIPING PLOVER BY STATE (ROWS) AND OWNERSHIP (COLUMNS) IN HECTARES (ACRES)—Continued
Federal 1 State 1 Other 1 Total
FL ...... 5,135(12,683) 5,070(12,524) 858(2,121) 11,063(27,328) AL ...... 294(726) 292(722) 600(1,481) 1,186(2,929) MS ...... 2,376(5,870) 0.0(0.0) 1,479(3,655) 3,855(9,525) LA ...... 3,042(7,515) 3,246(8,019) 3,812(9,416) 10,100(24,950) TX ...... 1,934(4,777) 2,604(6,432) 20,748(51,248) 25,285(62,454)
Total ...... 20,517(50,680) 15,374(37,980) 30,990(76,551) 66,881(165,211) 1 Approximate land mass values that do not include intertidal areas.
We have divided the lands designated owned by the State. This unit includes Seashore. This unit extends south from as critical habitat into 142 critical several islands in Pamlico Sound Cape Lookout Lighthouse, along Cape habitat conservation units that contain known as Bird Islands. This unit Lookout, to Cape Point and northwest to areas with the primary constituent includes lands on all islands to the the northwestern peninsula. All lands elements for the piping plover in the MLLW. from MLLW on the Atlantic Ocean, wintering range of the species. These Unit NC–4: Hatteras Inlet. 516 ha Onslow Bay, and Lookout Bight up to units are found in all eight States where (1273 ac) in Dare and Hyde Counties. where densely vegetated habitat, not piping plovers winter. Below, we The majority of the unit is surrounded used by the piping plover, begins and describe each unit in terms of its by Cape Hatteras National Seashore, but the constituent elements no longer location, approximate size, and is privately owned. This unit extends occur are included. ownership. Due to data limitations west from the end of Highway 12 on the Unit NC–8: Shackleford Banks. 716 ha (resolution & availability) intertidal western portion of Hatteras Island to (1769 ac) in Carteret County. The entire zone (area between high and low tide) 1.25 km (0.78 mi) southwest of the ferry unit is within Cape Lookout National could not be mapped; therefore, the size terminal at the end of Highway 12 on Seashore. This unit is in two parts: (1) of each unit is considered approximate. Ocracoke Island. It includes all lands The eastern end of Shackleford Banks These unit descriptions can be found in where constituent elements occur from from MLLW of Barden Inlet extending the regulatory section at the end of this MLLW on the Atlantic Ocean across to west 2.4 km (1.5 mi), including rule, and are the definitive source for MLLW on Pamlico Sound. All emergent Diamond City Hills, Great Marsh Island, determining the critical habitat sandbars within Hatteras Inlet between and Blinds Hammock; and, (2) The boundaries. Hatteras Island and Ocracoke Island are western end of Shackleford Banks from also included. North Carolina (Maps Were Digitized MLLW extending east 3.2 km (2.0 mi) Unit NC–5: Ocracoke Island. 80 ha from Beaufort Inlet. The unit includes Using 1993 DOQQs, Except NC–3 (1993 (197 ac) in Hyde County. The majority DRG) all land from MLLW to where densely of this unit is within Cape Hatteras vegetated habitat, not used by the piping Unit NC–1: Oregon Inlet. 404 ha (997 National Seashore. It includes the plover, begins and where the ac) in Dare County. This unit extends western portion of Ocracoke Island constituent elements no longer occur from the southern portion of Bodie beginning 3.5 km (2.2 mi) west of the and any emergent sandbars within Island to the northern portion of Pea junction of Highway 12 and the local Beaufort Inlet. This unit is bordered by Island. It includes all land south of the road (no name) extending west to Onslow Bay, Shackleford Slue, and Oregon Inlet Marina and Fishing Center Ocracoke Inlet. It includes all land from Back Sound. to 0.50 km (0.31 mile) south of the MLLW on the Atlantic Ocean across to junction of Highway 12 and SR 1257. MLLW on Pamlico Sound. All emergent Unit NC–9: Rachel Carson. 445 ha This unit includes lands from MLLW on sandbars within Ocracoke Inlet are also (1100 ac) in Carteret County. The entire the Pamlico Sound across (and included. unit is within the Rachel Carson including all land) to MLLW on Atlantic Unit NC–6: Portsmouth Island-Cape National Estuarine Research Reserve. Ocean shoreline. Any emergent Lookout. 3187 ha (7873 ac) in Carteret This unit includes islands south of sandbars south and west of Oregon Inlet County. The entire unit is within Cape Beaufort including Horse Island, Carrot are included. Lookout National Seashore. This unit Island, and Lennox Point. This unit Unit NC–2: Cape Hatteras Point. 465 includes all land to MLLW on Atlantic includes entire islands to MLLW. ha (1149 ac) in Dare County. The Ocean to MLLW on Pamlico Sound, Unit NC–10: Bogue Inlet. 143 ha (354 majority of the unit is within Cape from Ocracoke Inlet extending west to ac) in Carteret and Onslow Counties. Hatteras National Seashore. This unit the western end of Pilontary Islands. The majority of the unit is privately extends south from the Cape Hatteras This unit includes the islands of Casey, owned, with the remainder falling Lighthouse to the point of Cape Hatteras Sheep, Evergreen, Portsmouth, within Hammocks Beach State Park. and then extends west 6.4 km (4.0 mi) Whalebone, Kathryne Jane, and Merkle This unit includes contiguous land along Hatteras Cove shoreline. The unit Hammock. This unit also extends west south, west, and north of Bogue Court includes lands from the MLLW on the from the eastern side of Old Drum Inlet to MLLW line of Bogue Inlet on the Atlantic Ocean and stops landward to 1.6 km (1.0 mi) west of New Drum western end of Bogue Banks. It includes where densely vegetated habitat, not Inlet and includes all lands from MLLW the sandy shoals north and adjacent to used by the piping plover, begins and on Atlantic Ocean to MLLW on Core Bogue Banks and the land on Atlantic where constituent elements no longer Sound. Ocean side to MLLW. This unit also occur. Unit NC–7: South Core Banks. 552 ha extends 1.3 km (0.8 mi) west from Unit NC–3: Clam Shoals. 28 ha (70 ac) (1364 ac) in Carteret County. The entire MLLW of Bogue Inlet on the eastern in Dare County. The entire unit is unit is within Cape Lookout National portion of Bear Island.
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Unit NC–11: Topsail. 451 ha (1114 ac) Estuarine Reserve. This unit extends constituent elements no longer occur. in Pender County and Hanover County. south from Ft. Fisher Islands (from the The unit continues north and west of The entire area is privately owned. This rocks), south of the ferry terminal, to Little River Inlet stopping at Sheephead unit extends southwest from 1.0 km approximately 0.8 km (0.5 mi) south of Creek, including land from MLLW to (0.65 mi) northeast of MLLW of New MLLW at Corn Cake Inlet on Smith dense vegetation line. The majority of Topsail Inlet on Topsail Island to 0.53 Island. It includes all land (including the unit is privately owned. km (0.33 mi) southwest of MLLW of Zeke’s Island) from MLLW on Atlantic Unit SC–2: Waites Island-South. 58 ha Rich Inlet on Figure Eight Island. It Ocean across to MLLW on the eastern (142 ac) in Horry County.This unit includes both Rich Inlet and New side of the Cape Fear River. includes the southern tip of Waites Topsail Inlet and the former Old Topsail Unit NC–16: Lockwood Folly Inlet. 36 Island from the MLLW at Hog Inlet and Inlet. All land, including emergent ha (90 ac) in Brunswick County. The runs east along the Atlantic Ocean sandbars, from MLLW on Atlantic entire unit is on Oak Island (formerly shoreline 0.80 km (0.50 mi) and Ocean and sound side to where densely known as the Town of Long Beach) and includes MLLW to where densely vegetated habitat, not used by the piping is privately owned. This unit extends vegetated habitat, not used by the piping plover, begins and where the from the end of West Beach Drive, west plover, begins and where the constituent elements no longer occur. In to MLLW at Lockwood Folly Inlet, constituent elements no longer occur. It Topsail Sound, the unit stops as the including emergent sandbars south and continues north and west of the Hog entrance to tidal creeks become narrow adjacent to the island. This unit inlet, stopping at the first major and channelized. includes land from MLLW on Atlantic tributary. Critical habitat includes from Unit NC–12: Figure Eight Island. 134 Ocean across to MLLW adjacent to the MLLW to where densely vegetated ha (331 ac) in New Hanover County. Eastern Channel and the Intracoastal habitat, not used by the piping plover, The majority of the unit is privately Waterway. begins and where the constituent owned. This unit extends south from Unit NC–17: Shallotte Inlet. 120 ha elements no longer occur. Emerging the western end of Beach Road on (296 ac) in Brunswick County.The entire sandbars within Hog Inlet and adjacent Figure Eight Island to the northern end unit is privately owned. This unit to the tip if eastern Cherry Grove Beach of Highway 74 on Wrightsville Beach. begins just west of Skimmer Court on are also included from MLLW to where The unit includes Mason Inlet and the the western end of Holden Beach. It densely vegetated habitat or developed sand and mudflats northwest of the inlet includes land south of SR 1116, to structures, not used by the piping from MLLW on Atlantic Ocean to where where densely vegetated habitat, not plover, begins and where the densely vegetated habitat, not used by used by the piping plover, begins and constituent elements no longer occur. the piping plover, begins and where the where the constituent elements no The majority of this unit is privately constituent elements no longer occur. longer occur to the MLLW along the owned. Unit NC–13: Masonboro. 61 ha (150 Atlantic Ocean. It includes the Unit SC–3: Murrells Inlet/Huntington ac) in New Hanover County. The entire contiguous shoreline from MLLW to Beach. 135 ha (334 ac) in Georgetown unit is within the North Carolina where densely vegetated habitat, not County. The majority of the unit is National Estuarine Research Reserve. used by the piping plover, begins and within Huntington Beach State Park. This unit extends 1.1 km (0.70 mi) south where the constituent elements no This unit extends from the southern tip from the MLLW of Masonboro Inlet on longer occur along the Atlantic Ocean, of Garden City Beach, just south of the Masonboro Island. This unit includes all Shallotte Inlet, and Intracoastal groins (a rigid structure or structures lands along the Atlantic Ocean, Waterway stopping north of Skimmer built out from a shore to protect the Masonboro Inlet, and Masonboro Sound Court Road. The unnamed island and shore from erosion or to trap sand) north from MLLW to where densely vegetated emergent sandbars to MLLW within of Murrells Inlet from MLLW to where habitat, not used by the piping plover, Shallotte Inlet are also included. densely vegetated habitat or developed begins and where the constituent Unit NC–18: Mad Inlet. 112 ha (278 structures, not used by the piping elements no longer occur. ac) in Brunswick County. The entire plover, begins and where the Unit NC–14: Carolina Beach Inlet. 374 unit is privately owned. This unit constituent elements no longer occur ha (924 ac) in New Hanover County. extends west 1.2 km (0.75 mi) from the stopping perpendicular with the The majority of the unit is within Myrtle end of Main Street (SR 1177) on western southern end of Inlet Point Drive. It Grove Sound on Masonboro Island and Sunset Beach to the eastern portion of includes from MLLW south of Murrells is owned by the North Carolina National Bird Island and includes the marsh Inlet to the northern edge of North Estuarine Research Reserve. It extends areas north of western Sunset Beach Litchfield Beach approximately 4.5 km 1.80 km (1.12 mi) west along the south shoreline. The shoreline area begins at (3.0 mi). The unit includes the MLLW shoreline of Wolf Island from the mouth MLLW on the Atlantic Ocean and from the Atlantic Ocean up to where of the Altamaja sound. This unit continues landward to where densely densely vegetated habitat, not used by extends south from 3.2 km (2.0 mi) vegetated habitat, not used by the piping the piping plover, begins and where the north of MLLW at Carolina Beach Inlet plover, begins and where the constituent elements no longer occur. on Masonboro Island to 1.1 km (0.70 mi) constituent elements no longer occur. The lagoon at the north end of south of MLLW at Carolina Beach Inlet Huntington Beach State Park is also on Carolina Beach. It includes land from South Carolina (Maps Were Digitized included. MLLW on Atlantic Ocean across and Using 1994 DOQQs) Unit SC–4: Litchfield. 11 ha (28 ac) in including lands to MLLW on the Unit SC–1: Waites Island-North. 75 ha Georgetown County. This unit includes western side of Masonboro Island, (186 ac) in Horry County. This unit the southern tip of Litchfield Beach excluding existing dredge spoil piles. includes the northern tip of Waites beginning 0.50 km (0.30 mi) north of Emergent sand bars within Carolina Island from the MLLW at Little River Midway Inlet and stopping at the Beach Inlet are also included. Inlet and runs west along the Atlantic MLLW at Midway Inlet. It includes from Unit NC–15: Ft. Fisher. 790 ha (1951 Ocean shoreline 2.0 km (1.25 mi) and the MLLW on the Atlantic Ocean ac) in New Hanover and Brunswick includes land from the MLLW to where shoreline across and including land to Counties. This unit is within Ft. Fisher densely vegetated habitat, not used by the MLLW on the back bayside. This State Recreation Area and Zeke’s Island the piping plover, begins and where the unit is mostly privately owned.
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Unit SC–5: North Inlet. 99 ha (245 ac) Unit SC–8: Bull Island. 134 ha (332 Harbor Island and includes all of Harbor in Georgetown County. The majority of ac) in Charleston County. The majority Spit. It begins at the shoreline east of the unit is within Tom Yawley Wildlife of the unit is within Cape Romain Cedar Reef Drive running south, Center Heritage Preserve. This unit National Wildlife Refuge and land stopping at the mouth of Johnson Creek. extends from MLLW to 1.0 km (.62 mi) owned by the South Carolina It includes the MLLW on the Atlantic north of North Inlet on Debidue Beach. Department of Natural Resources. This Ocean and St. Helena Sound to where It includes shoreline on the Atlantic unit includes from Schooner Creek on densely vegetated habitat, not used by Ocean from MLLW to the MLLW on the north and south of the river to north of the piping plover, begins and where the western side of the peninsula. This unit Price’s Inlet on the southern portion of constituent elements no longer occur. also includes from the MLLW south of Bull Island along the Atlantic Ocean 1.6 All of Harber Spit to MLLW is included. North Inlet 1.6 km (1.0 mi). It includes km (1.0 mi) and south of Price’s Inlet on Unit SC–14: Caper’s Island. 238 ha the shoreline on the Atlantic Ocean the northeast tip of Capers Island (589 ac) in Beaufort County. Most of this from MLLW to where densely vegetated Heritage Preserve 1.4 km (.86 mi) along unit is privately owned. This unit habitat, not used by the piping plover, the Atlantic Ocean. All areas begin at includes the southern-most 4.5 km (2.8 begins and where the constituent MLLW and extend to where densely mi) along the Atlantic Coast shoreline of elements no longer occur. It includes vegetated habitat, not used by the piping Little Caper’s Island beginning at MLLW shoreline running south and west of the plover, begins and where the on south side of the inlet (un-named). It inlet from the MLLW stopping at the constituent elements no longer occur. includes the MLLW on the Atlantic MLLW at the first large tributary (no Unit SC–9: Stono Inlet. 495 ha (1223 Ocean shoreline to where densely name). ac) in Charleston County.Most of this vegetated habitat, not used by the piping Unit SC–6: North Santee Bay Inlet. unit is privately owned. It includes the plover, begins and where the 305 ha (753 ac) in Georgetown County. eastern end of Kiawah Island constituent elements no longer occur. Unit SC–15: Hilton Head. 43 ha (106 The majority of the unit is within the (approximately 4.0 km (2.5 mi)) from ac) in Beaufort County. The majority of Tom Yawley Wildlife Center Heritage MLLW on Atlantic Ocean running north this unit is State-owned. This unit Preserve and the Santee-Delta Wildlife to MLLW on first large tributary includes the northeastern tip (Atlantic Management Area. This unit is at the connecting east of Bass Creek running Ocean side) of Hilton Head Island and North Santee Bay inlet and includes northeast into Stono River. It includes all of Joiner Bank. It begins at the lands of South Island, Santee Point, MLLW up to where densely vegetated habitat, not used by the piping plover, shoreline east of northern Planters Row Cedar Island, and all of North Santee begins and where the constituent and ends at the shoreline east of Donax Sandbar. This unit includes from MLLW elements no longer occur along Stono Road. It includes the MLLW of Port at North Santee Bay Inlet running north Inlet and River. All of Bird Key-Stono Royal Sound and the Atlantic Ocean to along the Atlantic Ocean side of South Heritage Preserve and all of Skimmer where densely vegetated habitat, not Island 7.2 km (4.5 mi), stopping 0.60 km Flats to MLLW are included. The Golf used by the piping plover, begins and (0.4 mi) north of an unnamed inlet. It course and densely vegetated areas are where the constituent elements no includes areas from MLLW to where not included. longer occur. All of Joiner Bank to densely vegetated habitat, not used by Unit SC–10: Seabrook Island. 117 ha MLLW is included. the piping plover, begins and where the (290 ac) in Charleston County.This unit constituent elements no longer occur. runs from just 0.16 km (0.10 mi) north Georgia (Maps Were Digitized Using This unit includes the eastern side of of Captain Sams Inlet to the southwest 1993–94 DOQQs) Cedar Island adjacent to the North approximately 3.4 km (2.1 mi) along the Unit GA–1: Tybee Island. 37 ha (91 Santee Bay Inlet from MLLW to where Atlantic Ocean shoreline. It includes ac) in Chatham County. The majority of densely vegetated habitat, not used by land areas from the MLLW on the the unit is privately owned. This unit the piping plover, begins and where the Atlantic Ocean to where densely extends along the northern tip of Tybee constituent elements no longer occur. vegetated habitat, not used by the piping Island starting from 0.8 km (0.5 mi) All of North Santee Sandbar to MLLW plover, begins and where the northeast from the intersection of Crab is included. constituent elements no longer occur. Creek and Highway 80 to 0.7 km (0.41 Unit SC–7: Cape Romain. 315 ha (777 Most of this unit is privately owned. mi) northeast from the intersection of ac) in Charleston County.The majority Unit SC–11: Deveaux Bank. 130 ha Highway 80 and Horse Pen Creek. The of the unit is within Cape Romain (322 ac) in Charleston County. The unit includes MLLW on Savannah River National Wildlife Refuge. This unit entire unit is within Deveaux Bank and Atlantic Ocean to where densely includes the MLLW to where densely Heritage Preserve. This unit includes all vegetated habitat or developed vegetated habitat, not used by the piping of Deveaux Island to the MLLW and is structures, not used by the piping plover, begins and where the State-owned. plover, begin and where the constituent constituent elements no longer occur on Unit SC–12: Otter Island. 68 ha (169 elements no longer occur. the southern and southeastern most 1.9 ac) in Colleton County.The majority of Unit GA–2: Little Tybee Island. 719 km (1.2 mi) portion of Cape Island, the the unit is within St. Helena Sound ha (1776 ac) in Chatham County. The southernmost portion of Lighthouse Heritage Preserve. This unit includes majority of the unit is within Little Island from MLLW to where densely the southern portion of Otter Island to Tybee Island State Heritage Preserve. vegetated habitat, not used by the piping the eastern mouth of Otter Creek. It This unit extends just south of the first plover, begins and where the includes the MLLW to where densely inlet to Wassaw Sound along the constituent elements no longer occur, vegetated habitat, not used by the piping Atlantic Ocean coastline, extending all of Lighthouse Island South to plover, begins and where the north along the sound 1.7 km (1.1 mi). MLLW, and the southern side of the far constituent elements no longer occur. It includes habitat from MLLW to where eastern tip of Raccoon Key from MLLW The entire unit is State-owned. densely vegetated habitat, not used by to where densely vegetated habitat, not Unit SC–13: Harbor Island. 50 ha (122 the piping plover, begins and where the used by the piping plover, begins and ac) in Beaufort County. The majority of constituent elements no longer occur. where the constituent elements no the unit is State-owned. This unit Unit GA–3: North Wassaw Island. 108 longer occur. extends from the northeastern tip of ha (267 ac) in Chatham County. The
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entire unit is within Wassaw National includes the northeastern portion of the where the constituent elements no Wildlife Refuge. This unit includes the island beginning just east of the mouth longer occur. north-east tip of Wassaw Sound, 1.6 km of the confluence of McCloy Creek and Unit GA–15: Jekyll Island. 49 ha (121 (1.0 mi) along the inlet side and Blackbeard Creek and continuing east ac) in Glynn County. The majority of the extending south along the Atlantic and running south along the Atlantic unit is within State lands on Jekyll Ocean shoreline for 1.6 km (1.0 mi). It Ocean shoreline for 1.4 km (.90 mi). It Island. This unit includes the southern includes land from MLLW to where includes land from MLLW to where region of Jekyll Island beginning at the densely vegetated habitat, not used by densely vegetated habitat, not used by mouth of Beach Creek, running towards the piping plover, begins and where the the piping plover, begins and where the the tip of Jekyll Island and includes the constituent elements no longer occur. constituent elements no longer occur. shoreline running north along the Unit GA–4: South Wassaw Island. 61 Unit GA–10: Sapelo Island. 85 ha (210 Atlantic Ocean shoreline 1.9 km (1.20 ha (151 ac) in Chatham County. The ac) in McIntosh County. The entire unit mi) from the southern tip of Jekyll entire unit is within Wassaw National is State-owned and within Sapelo Island. It includes land from MLLW to Wildlife Refuge. This unit extends from Island. The unit extends south of where densely vegetated habitat, not the last southern 1.6 km (1.0 mi.) on Cabretta Tip approximately 0.2 km (0.13 used by the piping plover, begins and Atlantic Ocean side, around the mi) and north of Cabretta Tip 1.6 km where the constituent elements no southern tip of Wassaw Island, up to (1.0 mi). It includes land from MLLW to longer occur. mouth of Odingsell River. It includes where densely vegetated habitat, not Unit GA–16: Cumberland Island. 1454 land from MLLW to where densely used by the piping plover, begins and ha (3591 ac) in Camden County. The vegetated habitat, not used by the piping where the constituent elements no majority of the unit is along Cumberland plover, begins and where the longer occur. Island Wilderness Area and Cumberland constituent elements no longer occur. Unit GA–11: Wolf Island. 238 ha (590 Island National Seashore. This unit Unit GA–5: Ossabaw Island. 434 ha ac) in McIntosh County. The majority of includes the majority of the eastern (1072 ac) in Chatham County. entire the unit is within Wolf Island National Atlantic Ocean shoreline of Cumberland unit is within Ossabaw Island State Wildlife Refuge and private lands just Island. It begins .50 km (.31 mi) north Heritage Preserve. This unit includes north of the Refuge. This unit includes of the inlet at Long Point, continues the northeastern tip from the mouth of the southeastern tip of Queen’s island south along the Atlantic Ocean the Bradley River east and 12 km (7.5 adjacent to the Doboy Sound and shoreline stopping 1.8 km (1.1 mi) west mi) south along the Atlantic Ocean includes the eastern shoreline of Wolf of the southern tip of Cumberland shoreline to a point 0.4 km (0.25 mi) Island. It includes land from MLLW to Island National Seashore. It includes past the south-center inlet. It includes where densely vegetated habitat, not land from MLLW to where densely land from MLLW to where densely used by the piping plover, begins and vegetated habitat, not used by the piping vegetated habitat, not used by the piping where the constituent elements no plover, begins and where the plover, begins and where the longer occur. constituent elements no longer occur. constituent elements no longer occur. Unit GA–12: Egg Island Bar. 61 ha Unit GA–6: St. Catherine’s Island Bar. (151 ac) in McIntosh County. This unit Florida (Maps Were Digitized Using 54 ha (135 ac) in Liberty County. The is State owned and includes all of Egg 1994–95 DOQQs) entire unit is State owned and located Island Bar to the MLLW. Unit FL–1: Big Lagoon. 8 ha (19 ac) east-northeast of St. Catherine’s Island. Unit GA–13: Little St. Simon’s Island. in Escambia County. The majority of the This unit includes the entire St. 609 ha (1505 ac) in Glynn County. The unit is within Big Lagoon State Catherine’s Island Bar to MLLW. majority of the unit is private land on Recreation Area. This unit includes the Unit GA–7: McQueen’s Inlet. 215 ha Little St. Simon’s Island. This unit peninsula and emerging sand and (532 ac) in Liberty County. The majority includes the entire eastern coastline mudflats between 0.33 km (0.21 mi) of the unit is private land along the along Little St. Simon’s Island. It begins west of the lookout tower along the eastern-central coastline on St. 1.1 km (.70 mi) west of the northeast tip shoreline and 0.24 km (0.15 mi) east of Catherine’s Island. This unit extends of Little St. Simon’s Island and runs east the lookout tower along the shoreline. from McQueen’s Inlet north and then south along the Atlantic Ocean Land along the shoreline from MLLW to approximately 3.5 km (2.2 mi) and shoreline stopping at the minor where densely vegetated habitat, not south approximately 1.8 km (1.1 mi). It tributary (no name) on the southeast tip used by the piping plover, begins and includes land from MLLW to where of Little St. Simon’s Island north of where the constituent elements no densely vegetated habitat, not used by Hampton Creek. It includes land from longer occur. All emerging sandbars to the piping plover, begins and where the MLLW to where densely vegetated MLLW are included. constituent elements no longer occur. habitat, not used by the piping plover, Unit FL–2: Big Sabine. 182 ha (450 ac) Unit GA–8: St. Catherine’s Island. 60 begins and where the constituent in Escambia County. The majority of the ha (147 ac) in Liberty County. The elements no longer occur. All of Pelican unit is owned by the University of West majority of the unit is private land on Spit to MLLW is included when this Florida. This unit includes areas the southern tip of St. Catherine’s sand bar is emergent. adjacent to Santa Rosa Sound of Big Island. This unit starts 1.2 km (0.75 mi) Unit GA–14: Sea/St. Simon’s Island. Sabine Point and adjacent embayment north of Sapelo Sound (along Atlantic 191 ha (471 ac) in Glynn County. The between 8.0 km (5.0 mi) and 11.6 (7.2 Ocean shoreline) and stops inland at majority of the unit is private land on mi) east of the Bob Sike’s Bridge. It Brunsen Creek. It includes land from the south tip of Sea Island and on the begins 0.10 km (.06 mi) north of SR 399 MLLW to where densely vegetated east beach of St. Simons Island. This to MLLW on the Santa Rosa Sound. habitat, not used by the piping plover, unit extends north of Gould’s Inlet (Sea Unit FL–3: Navarre Beach. 48 ha (118 begins and where the constituent Island) 2.5 km (1.54 mi) starting just ac) in Escambia and Santa Rosa elements no longer occur. south of the groin and extends south of Counties. The majority of the unit is Unit GA–9: Blackbeard Island. 129 ha Gould’s Inlet (St. Simons Island) 1.6 km owned by Eglin Air Force Base and (319 ac) in McIntosh County. The entire (1.0 mi). It includes land from MLLW to Santa Rosa Island Authority. This unit unit is within the Blackbeard Island where densely vegetated habitat, not includes lands on Santa Rosa Island National Wildlife Refuge. This unit used by the piping plover, begins and Sound side, between 0.09 and 0.76 mi
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east of the eastern end of SR 399 to George State Park. This unit begins 5.3 Preserve. This unit includes all of North MLLW on Santa Rosa Sound side. km (3.3 mi) east of the bridge and Anclote Bar to the MLLW and the north, Unit FL–4: Marifarms in Bay County. extends to East Pass. Shell Point, south and western sides of Anclote Key Excluded. The proposed rule included Rattlesnake Cove, Goose Island, East from MLLW to where densely vegetated this unit, but it was deleted for lack of Cove, Gap Point, and Marsh Island are habitat, not used by the piping plover, evidence of regular use by piping included. This unit includes land from begins and where the constituent plovers. MLLW to where densely vegetated elements no longer occur. Unit FL–5: Shell/Crooked Islands. habitat, not used by the piping plover, Unit FL–16: Three Rooker Bar Island. 1789 ha (4419 ac) in Bay County.The begins and where the constituent 76 ha (188 ac) in Pinellas County. The majority of the unit is within Tyndall elements no longer occur on the Gulf of majority of the unit is within Pinellas Air Force Base and St. Andrews State Mexico, East Pass and St. George Sound. County Aquatic Preserve. This unit Recreation Area. This unit includes all Unit FL–10: Yent Bayou. 153 ha (378 includes all the islands and emerging of Shell Island, Crooked Island West, ac) in Franklin County. The majority of sandbars of this complex to MLLW. and Crooked Island East from MLLW to the unit is State owned. This unit is Unit FL–17: North Honeymoon where densely vegetated habitat, not adjacent to the area known as Royal Island. 45 ha (112 ac) in Pinellas used by the piping plover, begins and Bluff. It includes the St. George Sound County. The majority of the unit is where the constituent elements no shoreline between 5.9 km (3.7 mi) and within Honeymoon Island State longer occur. 9.5 km (5.9mi) east of SR 65. It includes Recreation Area. This unit includes Unit FL–6: Upper St. Joe Peninsula. from MLLW to where densely vegetated from Pelican Cove north to the far 182 ha (449 ac) in Gulf County.The habitat or developed structures such as northern tip of Honeymoon Island. It majority of the unit is within St. Joseph SR 65, not used by the piping plover, includes the western shoreline from State Park. This unit includes the begin and where the constituent MLLW to where densely vegetated northern portion of the peninsula from elements no longer occur. habitat, not used by the piping plover, the tip to 8.0 km (5.0 mi) south along Unit FL–11: Carabelle Beach. 56 ha begins and where the constituent the Gulf of Mexico from MLLW to (139 ac) in Franklin County. The area elements no longer occur or the MLLW where densely vegetated habitat, not within this unit is privately owned. This on the eastern shoreline. used by the piping plover, begins and unit is the peninsula created by Boggy Unit FL–18: South Honeymoon where the constituent elements no Jordan Bayou. It includes St. George Island. 28 ha (70 ac) in Pinellas longer occur. Sound shoreline (south of US 98) 1.6 km County.The majority of the unit is Unit FL–7: Cape San Blas. 158 ha (390 (1.0 mi) southwest along US 98 from the private land. This unit includes the ac) in Gulf County.The entire unit is Carrabelle River Bridge and extends 1.9 within Eglin Air Force Base. This unit km (1.2 mi) east along the St. George southern end (southern-most 0.32 km includes the area known as the Cape Sound shoreline. It includes from (0.20 mi) on western side) of between the eastern boundary of Eglin MLLW to where densely vegetated Honeymoon Island and encompasses and mile marker 2.1, including the habitat or developed structures such as the far southeastern tip and includes peninsula and all emerging sandbars. It US 98, not used by the piping plover, any emerging islands or sandbars to includes land from MLLW to where begin and where the constituent Hurricane Pass. It includes from MLLW densely vegetated habitat, not used by elements no longer occur. to where densely vegetated habitat, not the piping plover, begins and where the Unit FL–12: Lanark Reef. 260 ha (643 used by the piping plover, begins and constituent elements no longer occur. ac) in Franklin County. The entire unit where the constituent elements no Unit FL–8: St. Vincent Island. 146 ha is State owned. This unit includes the longer occur. (361 ac) in Franklin County.The entire island and emerging sandbars to Unit FL–19: Caladesi Island. 120 ha majority of the unit is within St. Vincent MLLW. (296 ac) in Pinellas County.The majority National Wildlife Refuge. This unit Unit FL–13: Phipps Preserve. 42 ha of the unit is within Caladesi Island includes the western tip of St. Vincent (104 ac) in Franklin County. This unit State Park. This unit extends from Island that is adjacent to Indian Pass includes all of Phipps Preserve (owned Hurricane Pass to Dunedin Pass on the (0.80 km (0.50 mi) east of tip along by The Nature Conservancy) and any Gulf of Mexico side. It includes from Indian Pass, and 1.9 km (1.2 mi) from emerging sandbars from MLLW to MLLW to where densely vegetated tip southeast along Gulf of Mexico). The where densely vegetated habitat, not habitat, not used by the piping plover, unit also includes St. Vincent Point used by the piping plover, begins and begins and where the constituent from the inlet at Sheepshead Bayou east where the constituent elements no elements no longer occur. 1.6 km (1.0 mi) to include emerging longer occur. Unit FL–20: Shell Key and Mullet oysters shoals and sand bars and Unit FL–14: Hagens Cove. 486 ha Key. 190 ha (470 ac) in Pinellas County. extends south 0.21 km (0.13 mi) of St. (1200 ac) in Taylor County. The The majority of the unit is within Fort Vincent Point. The unit includes the majority of the unit is within Big Bend Desoto Park. This unit includes the southeastern tip of St. Vincent Island Wildlife Management Area. This unit Shell Key island complex. It also extending north 1.4 km (0.90 mi) and includes all of Hagens Cove and extends includes the northwest portion of south and west 2.1 km (1.3 mi). The from MLLW on north side of Sponge Mullet Key including the western western tip of Little St. George Island Point to MLLW on south side of Piney shorelines from Bunces Pass extending 0.80 km (0.50 mi) from West Pass is Point. The eastern boundary of this unit south, stopping 1.4 km (.86 mi) north of included (state owned lands). All ends (0.20 mi) west of SR 361. It Ft. Desoto County Park pier. It includes sections of this unit include land from includes from MLLW to where densely from MLLW to where densely vegetated MLLW to where densely vegetated vegetated habitat, not used by the piping habitat or developed structures, not habitat, not used by the piping plover, plover, begins and where the used by the piping plover, begin and begins and where the constituent constituent elements no longer occur. where the constituent elements no elements no longer occur. Unit FL–15: Anclote Key and North longer occur. Unit FL–9: East St. George Island. Anclote Bar. 146 ha (360 ac) in Pasco Unit FL–21: Egmont Key. 153 ha (377 1433 ha (3540 ac) in Franklin County. and Pinellas Counties. The majority of ac) Hillsborough County. The majority The majority of the unit is within St. the unit is within Anclote Key State of the unit is within Egmont Key
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National Wildlife Refuge. This unit the south end of the island that faces Big Unit FL–31: Lower Matecumbe Key. includes the entire island to MLLW. Carlos Pass rather than the Gulf. It 19 ha (48 ac) in Monroe County. Part of Unit FL–22: Cayo Costa. 175 ha (432 includes land from MLLW to where the unit is at Anne’s Beach park, an ac) in Lee County. The majority of the densely vegetated habitat (including Islamorada village park. The remaining unit, including its northern and grass or lawns) or developed structures, parts are at Sunset Drive (Lower southern boundaries, is within Cayo not used by the piping plover, begin and Matecumbe Beach) and at Costa Bravo Costa State Park, and nearly all of the where the constituent elements no Drive (Port Antiqua Homeowners remaining area is in the Cayo Costa longer occur. Beach) on the Florida Bay side of the Florida Conservation and Recreation Unit FL–27: Marco Island. 245 ha (606 island. It includes land from MLLW to Lands (CARL) acquisition project. This ac) in Collier County. Most of the unit where densely vegetated habitat unit begins at the northern limit of is at the Tigertail Beach County Park. (including grass or lawns) or developed sandy beaches at the northern end of the The unit’s northern border is on the structures, not used by the piping island, extends through Murdock Point, north side of Big Marco Pass, including plover, begin and where the constituent which at present has a sandbar and Coconut Island and all emerging sand elements no longer occur. lagoon system, and ends at the former bars. On the south side of Big Marco Unit FL–32: Sandy Key/Carl Ross entrance to Murdock Bayou. It includes Pass, the boundary starts at the north Key. 67 ha (165 ac) in Monroe County. land from MLLW to where densely boundary of Tigertail Beach County This unit consists of two adjoining vegetated habitat, not used by the piping Park and extends to just south of the islands in Florida Bay, roughly south of plover, begins and where the fourth condominium tower south of the Flamingo in Everglades National Park. constituent elements no longer occur. County Park. The placement of the The entire area is owned and managed Unit FL–23: North Captiva Island. 36 southern boundary assures that the unit by the National Park Service. It includes ha (88 ac) in Lee County.The unit is includes all of Sand Dollar Island, the land from MLLW to where densely within the Cayo Costa CARL land changeable sandbar off Tigertail Beach. vegetated habitat (including grass or purchase project. This unit includes the The western boundary includes all the lawns) or developed structures, not used western shoreline extending from 0.80 sand bars in Big Marco Pass but by the piping plover, begin and where km (0.50 mi) south of Captiva Pass to excludes Hideaway Beach. It includes the constituent elements no longer approximately Foster Bay. It includes land from MLLW to where densely occur. land from MLLW to where densely vegetated habitat (including grass or Unit FL–33: St. Lucie Inlet. 114 ha vegetated habitat, not used by the piping lawns) or developed structures, not used (282 ac) in Martin County. The unit plover, begins and where the by the piping plover, begin and where includes a small area south of the jetty constituent elements no longer occur. the constituent elements no longer on the north shore of St. Lucie Inlet, Unit FL–24: Captiva Island and occur. from the jetty west 0.42 km (0.26 mi). Sanibel Island in Lee County. Excluded. Unit FL–28: Marquesas Keys. 2,937 ha While the two sides of the inlet are The proposed rule included this unit, (7,256 ac) in Monroe County. The unit privately owned, the great majority of but it was deleted for lack of evidence comprises the roughly circular atoll that the unit is on public land in the Saint of regular use by piping plovers. encloses Mooney Harbor, including Gull Lucie Inlet State Preserve, administered Unit FL–25: Bunche Beach. 187 ha Keys and Mooney Harbor Key. The by Jonathan Dickinson State Park. It (461 ac) in Lee County. This unit is entire unit is within Key West National begins on the sandy shoreline south of mostly within a CARL Estero Bay Wildlife Refuge. It includes land from Saint Lucie Inlet and extends along the acquisition project. Bunche Beach (also MLLW to where densely vegetated Atlantic Ocean shoreline 2.6 km (1.6 spelled Bunch) lies along San Carlos habitat, not used by the piping plover, mi). It includes land from MLLW to Bay, on the mainland between Sanibel begins and where the constituent where densely vegetated habitat Island and Estero Island (Fort Myers elements no longer occur. (including grass or lawns) or developed Beach), extending east from the Sanibel Unit FL–29: Boca Grande/Woman/ structures, not used by the piping Causeway past the end of John Morris Ballast Keys. 56 ha (138 ac) in Monroe plover, begin and where the constituent Road to a canal serving a residential County. These Keys are east of the elements no longer occur. The unit does subdivision. The unit also includes the Marquesas Keys and west of Key West. not include sandbars within the inlet. western tip of Estero Island (Bodwitch Boca Grande and Woman Keys are Unit FL–34: Ponce de Leon Inlet. 68 Point, also spelled Bowditch Point), within Key West National Wildlife ha (168 ac) in Volusia County. The including Bowditch Regional Park, Refuge. Ballast Key is privately owned. majority of the unit is within Smyrna operated by Lee County and, on the This unit consists only of sandy beaches Dunes Park and Lighthouse Point Park. southwest side of the island facing the and flats between the MLLW and to This unit includes shoreline extending Gulf, the beach south nearly to the where densely vegetated habitat or from the jetty north of Ponce de Leon northwesterly intersection of Estero developed structures, not used by the Inlet west to the Halifax River and Inlet Boulevard and Carlos Circle. It includes piping plover, begin and where the junction. It includes shoreline south of land from MLLW to where densely constituent elements no longer occur. Ponce de Leon Inlet from the inlet and vegetated habitat or developed Unit FL–30: Bahia Honda/Ohio Keys. Halifax River junction, extending east structures, not used by the piping 372 ha (918 ac) in Monroe County. This and south along the Atlantic Ocean plover, begin and where the constituent unit comprises Bahia Honda Key shoreline 1.2 km (.70 mi). It includes elements no longer occur or, along the (including a small island off its land from MLLW to where densely developed portion of Estero Island. southwest shore), which is almost vegetated habitat (including grass or Unit FL–26: Estero Island. 86 ha (211 entirely owned by Bahia Honda State lawns) or developed structures, not used ac) in Lee County. The majority of the Park, plus Ohio Key, which is privately by the piping plover, begin and where unit is privately owned. The unit owned. It includes land from MLLW to the constituent elements no longer consists of approximately the southern where densely vegetated habitat occur. third of the island’s Gulf-facing (including grass or lawns) or developed Unit FL–35: Nassau Sound-Huguenot. shoreline starting near Avenida structures, not used by the piping 950 ha (2347 ac) in Duval County. The Pescadora to near Redfish Road. The plover, begin and where the constituent majority of the unit is within Big Talbot unit excludes south-facing shoreline at elements no longer occur. Island State Park, Little Talbot Island
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State Park, and the Timucuan Ecological Mississippi (Maps Were Digitized Using shoreline of this unit is privately and Historical Preserve. This unit 1992 and 1997 DOQQs) owned. Unit MS–6: Mississippi City. 62 ha includes all emergent shoals and Unit MS–1: Lakeshore through Bay St. (153 ac) in Harrison County. This unit shoreline east of Nassau River bridge Louis. 41 ha (101 ac) in Hancock extends from the east side of the groin and extends to the inlet of the St. John’s County. This unit extends from the at the southern terminus of Courthouse River. Amelia Island and the northern north side of Bryan Bayou outlet and Road, Mississippi City, MS, and 2.7 km (1.7 mi) shoreline along Talbot includes the shore of the Mississippi includes the shore of the Mississippi Island are not included. It includes land Sound following the shoreline northeast Sound following the shoreline northeast from MLLW to where densely vegetated approximately 15.0 km (9.3 mi) and approximately 7.9 km (4.9 mi) to the habitat (including grass or lawns) or ending at the southeast side of the Bay west side of President Casino. The Waveland Yacht Club. The landward developed structures, not used by the landward boundary of this unit follows boundary of this unit follows the Gulf piping plover, begin and where the the Gulf side of U.S. Highway 90 and side of South and North Beach constituent elements no longer occur. the seaward boundary is MLLW. The Boulevard and the seaward boundary is Unit FL–36: Tiger Islands. 53 ha (130 shoreline of this unit is privately MLLW. The shoreline of this unit is ac) in Nassau County. This unit is owned. privately owned. privately owned. This unit extends from Unit MS–7: Beauvoir in Harrison Unit MS–2: Henderson Point. 34 ha County. Excluded. The proposed rule the mouth of Tiger Creek and runs north (84 ac) in Harrison County. This unit along Tiger Island 0.8 km (0.5 mi) and included this unit, but it was deleted for extends from 0.2 km (0.12 mi) west of lack of evidence of regular use by piping south along Little Tiger Island 1.4 km the intersection of 3rd Avenue and (0.9 mi). It includes land from MLLW to plovers. Front Street and includes the shore of Unit MS–8: Biloxi West in Harrison where densely vegetated habitat the Mississippi Sound following the (including grass or lawns) or developed County. Excluded. The proposed rule shoreline northeast approximately 4.4 included this unit, but it was deleted for structures, not used by the piping km (2.7 mi) to the west side of Pass lack of evidence of regular use by piping plover, begin and where the constituent Christian Harbor. The landward plovers. elements no longer occur. Emerging boundary of this unit follows the Gulf Unit MS–9: Biloxi East in Harrison sandbars to MLLW are also included. side of U.S. Highway 90 and the County. Excluded. The proposed rule seaward boundary is MLLW. The Alabama (Maps Were Digitized Using included this unit, but it was deleted for shoreline of this unit is privately 1992 DOQQs) lack of evidence of regular use by piping owned. plovers. Unit AL–1: Isle Aux Herbes. 227 ha Unit MS–3: Pass Christian. 77 ha (190 Unit MS–10: Ocean Springs West. 11 (561 ac) in Mobile County. This unit ac) in Harrison County. This unit ha (27 ac) in Jackson County. This unit includes the entire Isle Aux Herbes extends from the east side of Pass extends from U.S. 90 and includes the island where primary constituent Christian Harbor and includes the shore shore of Biloxi Bay following the elements occur to MLLW and is State- of the Mississippi Sound following the shoreline southeast approximately 1.9 owned. shoreline northeast approximately 10.5 km (1.2 mi) to the Ocean Springs Harbor km (6.5 mi) to the west side of Long inlet. The landward boundary of this Unit AL–2: Dauphin, Little Dauphin, Beach Pier and Harbor. The landward unit follows the Bay side of Front Beach and Pelican Islands. 880 ha (2,174 ac) in boundary of this unit follows the Gulf Drive and the seaward boundary is Mobile County. This unit includes all of side of U.S. Highway 90 and the MLLW. The shoreline of this unit is Dauphin Island where primary seaward boundary is MLLW and the privately owned. constituent elements occur from St. seaward boundary is MLLW. The Unit MS–11: Ocean Springs East. 7 ha Stephens Street approximately 17.6 km shoreline of this unit is privately (17 ac) in Jackson County. This unit (10.9 mi) west to the western tip of the owned. extends from the east side of Weeks island to MLLW and all of Little Unit MS–4: Long Beach. 38 ha (94 ac) Bayou and includes the shore of Biloxi Dauphin and Pelican Islands to MLLW. in Harrison County. This unit extends Bay following the shoreline southeast The area is mostly privately owned but from the east side of Long Beach Pier approximately 1.8 km (1.1 mi) to includes State and Federal lands. and Harbor and includes the shore of Halstead Bayou. The landward Unit AL–3: Fort Morgan. 67 ha (166 the Mississippi Sound following the boundary of this unit follows the Bay shoreline northeast approximately 4.4 ac) in Baldwin County. This area side of East Beach Drive and the km (2.7 mi) to the west side of Gulfport includes Mobile Bay and Gulf of Mexico seaward boundary is MLLW. The Harbor. The landward boundary of this shorelines within Bon Secour National shoreline of this unit is privately unit follows the Gulf side of U.S. Wildlife Refuge, Fort Morgan Unit. This owned. Highway 90 and the seaward boundary Unit MS–12: Deer Island. 194 ha (479 unit extends from the west side of the is MLLW. The shoreline of this unit is ac) in Harrison County. This unit pier on the northwest point of the privately owned. includes all of Deer Island, where peninsula, following the shoreline Unit MS–5: Gulfport. 39 ha (96 ac) in primary constituent elements occur to approximately 2.8 km (1.74 mi) Harrison County. This unit extends from the MLWW . Deer Island is privately southwest around the tip of the the east side of Gulfport Harbor and owned. peninsula, then east to the terminus of includes the shore of the Mississippi Unit MS–13: Round Island. 27 ha (67 the beach access road and is bounded Sound following the shoreline northeast ac) in Jackson County. This unit on the seaward side by MLLW and on approximately 4.8 km (3.0 mi) to the includes all of Round Island to the the landward side to where densely west side of the groin at the southern MLWW and is privately owned vegetated habitat, not used by the piping terminus of Courthouse Road, Unit MS–14: Mississippi Barrier plover, begins and where the Mississippi City, MS. The landward Islands. 3,168 ha (7,828 ac) in Harrison constituent elements no longer occur. boundary of this unit follows the Gulf and Jackson Counties. This unit The area is State-owned but is leased by side of U.S. Highway 90 and the includes all of Cat, East and West Ship, the Federal Government. seaward boundary is MLLW. The Horn, Spoil, and Petit Bois Islands
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where primary constituent elements portion of the State-owned Atchafalaya where the constituent elements no occur to MLLW. Cat Island is privately Delta Wildlife Management Area longer occur; the Gulf shoreline of owned, and the remaining islands are (WMA) and includes all exposed land Grand Isle from the Gulf side of the part of the Gulf Islands National and islands where primary constituent hurricane protection levee to MLLW; Seashore. elements occur east and southeast of the and all of East Grand Terre Island where Unit MS–15: North and South main navigation channel of the primary constituent elements occur to Rigolets. 159 ha (393 ac) in Jackson Atchafalaya River to the MLLW. The the MLLW. County, MS, and 12 ha (30 ac) in Mobile islands located south and southeast of Unit LA–6: Mississippi River Delta. County, AL. This unit extends from the the deltaic splay, Donna, T-Pat, and 105 ha (259 ac) in Plaquemines Parish, southwestern tip of South Rigolets Skimmer Islands and the un-named bird LA. This unit is part of the State-owned Island and includes the shore of Point island, are also included in this unit. Pass a Loutre Wildlife Management Aux Chenes Bay, the Mississippi Sound, This unit includes the entire islands Area and includes un-named sand and Grand Bay following the shoreline where primary constituent elements (spoil) islands off South Pass of the east around the western tip, then north occur to the MLLW. Mississippi River near Port Eads. The to the south side of South Rigolets Unit LA–3: Point Au Fer Island. 195 entire islands to MLLW are included in Bayou; then from the north side of ha (482 ac) in Terrebonne Parish. This this unit. South Rigolets Bayou (the southeastern unit includes the entire small island at Unit LA–7: Breton Islands and corner of North Rigolets Island) north to the northwest tip of Point Au Fer Island Chandeleur Island Chain. 3,116 ha the northeastern most point of North to MLLW, then extends from the (7,700 ac) in Plaquemines and St. Rigolets Island. This shoreline is northwest tip of Point Au Fer Island Bernard Parishes, LA. This unit bounded on the seaward side by MLLW following the shoreline southeast includes Breton, Grand Gosier, and and on the landward side to where approximately 7.7 km (4.8 mi) to the Curlew Islands and the Chandeleur densely vegetated habitat, not used by point where the un-named oil and gas Island chain. Those islands are part of the piping plover, begins and where the canal extending southeast from Locust the Breton National Wildlife Refuge or constituent elements no longer occur. Bayou meets the shoreline [0.8 km (0.5 are state owned. The entire islands Approximately 4.4 km (2.7 mi) are in mi) southeast from Locust Bayou]. This where primary constituent elements Mississippi and 2.9 km (1.8 mi) are in shoreline is bounded on the seaward occur to MLLW are included in this Alabama. Almost half the Mississippi side by MLLW and on the landward unit. shoreline length is in the Grand Bay side to where densely vegetated habitat, Texas (Maps Were Digitized Using 1995 National Wildlife Refuge. not used by the piping plover, begins and 1996 DOQQs and National Oceanic and where the constituent elements no Louisiana (Maps Were Digitized Using and Atmospheric Administration’s longer occur. This entire unit is 1998 DOQQs) (NOAA) Medium Resolution Digital privately owned. Vector Shoreline) Unit LA–1: Texas/Louisiana border to Unit LA–4: Isles Dernieres. 795 ha Cheniere au Tigre. 2,650 ha (6,548 ac) in (1,964 ac) in Terrebonne Parish. This Unit TX–1: South Bay and Boca Cameron and Vermilion Parishes. This unit includes the State-owned Isles Chica. 2,920 ha (7,217 ac) in Cameron unit extends from the east side of Sabine Dernieres chain, including Raccoon, County. The boundaries of the unit are: Pass (Texas/Louisiana border) and Whiskey, Trinity and East Islands. This starting at the Loma Ochoa, following includes the shore of the Gulf of Mexico unit includes the entire islands where the Brownsville Ship Channel to the from the MLLW following the shoreline primary constituent elements occur to northeast out into the Gulf of Mexico to east 25.7 km (16.0 mi) to the west end the MLLW. MLLW, then south along a line of Constance Beach [approximately 2 Unit LA–5: Timbalier Island to East describing MLLW to the mouth of the km (1.2 mi) east of the intersection of Grand Terre Island. 2,321 ha (5,735 ac) Rio Grande, proceeding up the Rio Parish Road 528 and the beach]; it in Terrebonne, Lafourche, Jefferson, and Grande to Loma de Las Vacas, then from extends from the east end of the town Plaquemines Parishes. This unit that point along a straight line north to of Holly Beach [0.25 km (0.16 mi) east includes: all of Timbalier Island where Loma Ochoa. The unit does not include of the intersection of Baritarick primary constituent elements occur to densely vegetated habitat within those Boulevard and the beach] following the the MLLW, all of Belle Pass West [the boundaries. It includes wind tidal flats shoreline approximately 97 km (60.3 ‘‘peninsula’’ extending north/northwest that are infrequently inundated by mi) east to the eastern boundary line of approximately 4.8 km (3.0 mi) from the seasonal winds, and includes the tidal Rockefeller Wildlife Refuge [3.4 km (2.1 west side of Belle Pass] where primary flats area known as South Bay. Beaches mi) east of Rollover Bayou]; and it constituent elements occur to MLLW; within the unit reach from the mouth of extends from the east side of Freshwater the Gulf shoreline extending the Rio Grande northward to Brazos Bayou Canal following the shoreline approximately 11 km (6.8 mi) east from Santiago Pass, south of South Padre east for approximately 15 km (9.3 mi) to the east side of Belle Pass bounded on Island. The southern and western 1.3 km (0.81 mi) east of where the the seaward side by MLLW and on the boundaries follow the change in habitat boundary of Paul J. Rainey Wildlife landward side to where densely from wind tidal flat, preferred by the Sanctuary (National Audubon Society) vegetated habitat, not used by the piping piping plover, to where densely meets the shoreline. All three sections plover, begins and where the vegetated habitat, not used by the piping of this unit include the land from the constituent elements no longer occur; plover, begins and where the seaward boundary of MLLW to where all of Elmers Island peninsula where constituent elements no longer occur. densely vegetated habitat, not used by primary constituent elements occur to The upland areas extend to where the piping plover, begins and where the MLLW and the Gulf shoreline from densely vegetated habitat, not used by constituent elements no longer occur. Elmers Island to approximately 0.9 km the piping plover, begins and where the The shoreline in this unit is both state (0.56 mi) west of Bayou Thunder Von constituent elements no longer occur and privately owned. Tranc bounded on the seaward side by and include areas used for roosting by Unit LA–2: Atchafalaya River Delta. MLLW and on the landward side to the piping plover. Portions of this unit 921 ha (2,276 ac) in St. Mary Parish, LA. where densely vegetated habitat, not are owned and managed by the Lower This unit is located in the eastern used by the piping plover, begins and Rio Grande Valley National Wildlife
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Refuge, the South Bay Coastal Preserve, Portions of this unit are owned and side of Packery Channel, and on the Boca Chica State Park, and private managed by TGLO, and private citizens west by the Gulf Intercoastal Watersay. citizens. with a significant portion being owned Some of the uplands are privately Unit TX–2: Queen Isabella Causeway. and managed by The Nature owned and the remaining are owned 2 ha (6 ac) in Cameron County. The area Conservancy on South Padre Island. and managed by the TGLO. This unit extends along the Laguna Madre west of Unit TX–4: Lower Laguna Madre includes two hurricane washover passes the city of South Padre Island. The Mainland. 4,980 ha (12,307 ac) in known as Newport and Corpus Christi southern boundary is the Queen Isabella Cameron and Willacy Counties. The Passes, and wind tidal flats that are State Fishing Pier, and the northern southern boundary is an east-west line infrequently inundated by seasonal boundary is at the shoreline due west of at the northern tip of Barclay Island, and winds. The upland areas extend to the end of Sunny Isles Street. The the southern boundary is an east-west where densely vegetated habitat, not Queen Isabella causeway bisects this line 0.9 km (0.5 mi) south of the used by the piping plover, begins and shore but is not included within critical boundary of the City of Port Mansfield; where the constituent elements no habitat. The eastern boundary is the the western boundary is the line where longer occur and include upland areas where developed areas and/or dense dense vegetation begins, and the eastern used for roosting by the piping plover. vegetation begins, and the western boundary is the Gulf Intercoastal Unit TX–7: Newport Pass/Corpus boundary is MLLW. This unit contains Waterway. The unit includes bayside Christi Pass Beach. 42 ha (104 ac) in lands known as wind tidal flats that are flats that are exposed during low tide Nueces County. This unit is along a infrequently inundated by seasonal regimes and wind tidal flats that are stretch of Gulf beach 8.5 km (5.3 mi) winds. infrequently inundated by seasonal long. It is bounded on the north by Fish Unit TX–3: Padre Island. 10,924 ha winds. Portions of this unit are within Pass, on the east by MLLW, on the south (26,983 ac) in Cameron, Willacy, the Laguna Atascosa National Wildlife by St. Bartholomew Avenue, and on the Kenedy, and Kleberg Counties. This unit Refuge, are TGLO-owned, or are west by a line marking the beginning of consists of four subunits: privately owned. Beaches and interior dense vegetation. Portions of the unit (1) The southern boundary of this wetlands may or may not be used each are managed by the Texas Parks and subunit is at Andy Bowie County Park year because of varying water levels, Wildlife Department as part of Mustang in South Padre Island, and the northern storm events, or changes in beach Island State Park. This unit includes boundary is the south boundary of characteristics and tidal regime. Water lands known as wind tidal flats that are PAIS. The eastern boundary is MLLW in stages vary in this area with infrequently inundated by seasonal the Gulf of Mexico, and the western meteorological conditions. The upland winds. boundary is MLLW in the Laguna areas extend to where densely vegetated Unit TX–8: Mustang Island Beach. 97 Madre. Areas of dense vegetation are not habitat, not used by the piping plover, ha (239 ac) in Nueces County. This is a included in critical habitat. This subunit begins and where the constituent stretch of Gulf beach extending from includes lands known as wind tidal flats elements no longer occur and include Fish Pass to the Horace Caldwell Pier on that are infrequently inundated by upland areas used for roosting by the Holiday Beach within the City of Port seasonal winds. piping plover. Aransas, TX. The landward boundary is (2) The boundaries of this subunit Unit TX–5: Upper Laguna Madre. 436 beginning of dense vegetation, and the extend from Rincon de la Soledad to the ha (1,076 ac) in Kleberg County. The gulf-ward boundary is MLLW. This unit southeast point of Mesquite Rincon, southern boundary is the northern includes lands known as wind tidal flats continue from that point west to the boundary of PAIS, and the northern that are infrequently inundated by Laguna Madre shoreline at its boundary is the Kleberg/Nueces County seasonal winds. intersection with the King Ranch line. The eastern boundary is the line Unit TX–9: Fish Pass Lagoons. 130 ha boundary, and from that point to Rincon where dense vegetation begins, and the (323 ac) in Nueces County. This unit de la Soledad. This subunit includes western boundary is MLLW. This unit encompasses flats facing Corpus Christi lands known as wind tidal flats that are includes a series of small flats along the Bay that extend 1.0 km (0.6 mi) on infrequently inundated by seasonal bayside of Padre Island in the Upper either side of Fish Pass. The inland winds. Laguna Madre. It includes wind tidal boundary is the line indicating (3) This subunit is within the Laguna flats and sparsely-vegtated upland areas beginning of dense vegetation, and the Madre and extends from the western used for roosting by the piping plover. bayside boundary is MLLW. It includes boundary of PAIS to the Gulf These boundaries receive heavy use by interior lagoons and wind tidal flats that Intercoastal Waterway. Its northern large numbers of shorebirds, including are infrequently inundated by seasonal boundary is a line extending westward piping plovers. The upland areas extend winds. This unit includes upland areas from the northwest corner of PAIS, and to where densely vegetated habitat, not used for roosting by the piping plover. its southern boundary is a line used by the piping plover, begins and Unit TX–10: Shamrock Island and extending westward from the southern where the constituent elements no Adjacent Mustang Island Flats. 87 ha boundary of PAIS. This subunit longer occur, and include upland areas (216 ac) in Nueces County. This unit includes lands known as wind tidal flats used for roosting by the piping plover. encompasses Shamrock Island, an that are infrequently inundated by Unit TX–6: Mollie Beattie Coastal unnamed small sand flat to the north of seasonal winds. Habitat. 241 ha (596 ac) in Nueces Wilson’s Cut, and a lagoon complex that (4) This subunit extends along the County. This unit will be described as extends 3.5 km (2.2 mi) to the southwest gulf shore of Padre Island from the two subunits: of Wilson’s Cut. Critical habitat includes northern boundary of PIAS at the shore, (1) Subunit is bounded on the north land to the line marking the beginning north to the Nueces-Kleberg county line. by Beach Access Road 3, on the east by of dense vegetation down to MLLW. The inland boundary is where dense the inland boundary of critical habitat This unit includes lands known as wind vegetation begins, and the seaward Unit TX–7, on the south by Zahn road, tidal flats that are infrequently boundary is MLLW. This subunit and on the west by Zahn Road. inundated by seasonal winds. includes lands known as wind tidal flats (2) The subunit is bounded on the Unit TX–11: Blind Oso. 2 ha (5 ac) in that are infrequently inundated by north by Corpus Christi Pass, on the east Nueces County. This unit is the flats of seasonal winds. by US 361, on the south by the north the Blind Oso, part of Oso Bay, from
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Hans and Pat Suter Wildlife Refuge habitat, not used by the piping plover, dynamic area of Cedar Bayou, the pass (owned and managed by the City of begins and where the constituent that separates San Jose Island and Corpus Christi) northeast to Corpus elements no longer occur, including Matagorda Island. This area includes a Christi Bay and then southeast along the upland areas used for roosting by the small section of Matagorda Island edge of Texas A&M University—Corpus piping plover. This unit includes lands National Wildlife Refuge with much of Christi. The landward boundaries known as wind tidal flats that are the remaining areas occurring on the extend to where densely vegetated infrequently inundated by seasonal privately owned island of San Jose. The habitat, not used by the piping plover, winds. upland areas extend to where densely begins, and extends out from the Unit TX–15: North Pass. 447 ha (1,106 vegetated habitat, not used by the piping landward boundaries to MLLW. This ac) in Aransas County. The unit is plover, begins and where the unit includes lands known as wind tidal bounded on north by North Pass, on the constituent elements no longer occur flats that are infrequently inundated by northwest by the line indicating MLLW, and include upland areas used for seasonal winds. on the southwest by the northeast side roosting by the piping plover. This unit Unit TX–12: Adjacent to Naval Air of Lydia Ann Island, on the south by a includes lands known as wind tidal flats Station-Corpus Christi. 2 ha (6 ac) in line running due east from the northeast that are infrequently inundated by Nueces County. This unit is along the side of Lydia Ann Island, and on the seasonal winds. shore of Oso Bay on flats bordered by southeast by the landward boundary of Unit TX–19: Matagorda Island Beach. Naval Air Station-Corpus Christi and Unit. This unit is a remnant of a 395 ha (976 ac) in Calhoun County. This Texas Spur 3 to a point 2.5 km (1.5 mi) hurricane washover on the privately stretch of beach along the Gulf of south of the bridge between Ward Island owned San Jose Island. The upland Mexico on Matagorda Island extends a and the Naval Air Station. The areas extend to where densely vegetated distance of 60 km (36 mi) from Cedar landward boundary is the line where habitat, not used by the piping plover, Bayou on the southwest (where it abuts dense vegetation begins, and the begins and where the constituent TX–18), to Pass Cavallo on the boundary in the Bay is MLLW. This unit elements no longer occur, including northeast. The inland boundary is the includes lands known as wind tidal flats upland areas used for roosting by the line indicating the beginning of dense that are infrequently inundated by piping plover. This unit includes lands vegetation, and the gulf-ward boundary seasonal winds. known as wind tidal flats that are is MLLW. This unit includes lands Unit TX–13: Sunset Lake. 176 ha (435 infrequently inundated by seasonal known as wind tidal flats that are ac) in San Patricio County. This unit is winds. infrequently inundated by seasonal triangle shaped, with State Highway 181 Unit TX–16: San Jose Beach. 187 ha winds. The unit falls entirely within the as the northwest boundary, and the (463 ac) in Aransas County. This unit boundary of the Matagorda Island limits of the City of Portland as the occupies a 33 km (20 mi) stretch of National Wildlife Refuge. northeast boundary. The shore on beach from the North Jetty of Aransas Unit TX–20: Ayers Point. 397 ha (982 Corpus Christi Bay is the third side of Pass at the south, to the confluence of ac) in Calhoun County. This unit is an the triangle, with the actual boundary Vinson Slough and Cedar Bayou at the unnamed lake on Matagorda Island being MLLW off this shore. This unit is north end of San Jose Island. The inland between Shell Reef Bayou and Big a large basin with a series of tidal boundary is the line indicating the Brundrett Lake, with San Antonio Bay ponds, sand spits and wind tidal flats. beginning of densely vegetated habitat, to the north. The unit boundary extends This unit is owned and managed by the and the gulf-ward boundary is MLLW. landward from the lake to the line City of Portland within a system of city This unit includes lands known as wind where dense vegetation begins and parks. Some of the described area falls tidal flats that are infrequently where the constituent elements no within the jurisdiction of the TGLO. It inundated by seasonal winds. longer occur and includes upland areas includes two city park units referred to Unit TX–17: Allyn’s Bight. 5 ha (14 used for roosting by the piping plover. as Indian Point and Sunset Lake. Much ac) in Aransas County. This unit This unit includes marsh and flats at of the unit is a recent acquisition by the includes shoreline of San Jose Island on Ayers Point on Matagorda Island city, and management considerations for Aransas Bay from Allyn’s Bight to Blind National Wildlife Refuge. This unit the park include the area’s importance Pass, the channel between San Jose includes lands known as wind tidal flats as a site for wintering and resident Island and Mud Island. The inland that are infrequently inundated by shorebirds. This unit includes lands boundary is where the line of dense seasonal winds. known as wind tidal flats that are vegetation begins, and the bay-ward Unit TX–21: Panther Point to Pringle infrequently inundated by seasonal boundary is MLLW. This unit includes Lake. 863 ha (2,133 ac) in Calhoun winds. lands known as wind tidal flats that are County. This unit represents a narrow Unit TX–14: East Flats. 194 ha (481 infrequently inundated by seasonal band of bayside habitats on Matagorda ac) in Nueces County. This unit is winds. Island from Panther Point to the bordered on the north by dredge Unit TX–18: Cedar Bayou/Vinson northeast end of Pringle Lake. The placement areas bordering the Corpus Slough. 3,051 ha (7,539 ac) in Aransas landward boundary is the line Christi Ship Channel, on the west by County. Beginning at the confluence of indicating where dense vegetation MLLW in Corpus Christi Bay, on the Vinson Slough and Cedar Bayou, this begins, and the bayward boundary is east by the limits of the City of Port unit’s boundary follows the shore of MLLW. The unit is entirely within Aransas, and on the south by an east- Spalding Cove to Long Reef, then Matagorda Island National Wildlife west line at the sourthern-most point of continues along a line extending (2.5 Refuge. This unit includes lands known Pelone Island. It is also bisected by a mi) southwest of Long Reef to the shore as wind tidal flats that are infrequently navigation channel, which is not of San Jose Island, then along the shore inundated by seasonal winds. included in the critical habitat. A of the island to the landward boundary Unit TX–22: Decros Point. 450 ha portion of this unit at the west end falls of Unit TX–16. The unit boundaries (1,114 ac) at the Matagorda/Calhoun within State-owned (TGLO) intertidal extend landward to the line indicating County line. This unit includes about lands. The remainder of the unit is the beginning of dense vegetation. This 7.0 km (4.3 mi) of beach habitat around privately owned. The upland areas unit is a remnant of a hurricane the island at the western tip of extend to where densely vegetated washover area, and includes the highly Matagorda Peninsula between the
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natural opening to Matagorda Bay and infrequently inundated by seasonal Brazoria Counties. This is a unit the Matagorda Ship Channel. The winds. composed of Gulf beach, 8.0 km (5.0 upland boundary is the line where Unit TX–27: East Matagorda Bay/ mi), and extends from the mouth of the dense vegetation begins, and the Matagorda Peninsula Beach West. 295 San Bernard River to a point along the seaward boundary is MLLW. The (728 ac) of shoreline in Matagorda beach 14.0 km (8.7 mi) to the southwest. adjacent upland is privately owned. County. This unit extends along Gulf The landward boundary is the line This unit includes lands known as wind beach on the Matagorda Peninsula from indicating the beginning of dense tidal flats that are infrequently the mouth of the Colorado River vegetation, and the gulfside boundary is inundated by seasonal winds. northeast along the peninsula 23 km (14 MLLW. This unit includes lands known Unit TX–23: West Matagorda mi) to a point on the beach opposite as wind tidal flats that are infrequently Peninsula Beach. 311 ha (769 ac) of Eidelbach Flats. The landward inundated by seasonal winds. shoreline in Matagorda County. This boundary is the line indicating the Unit TX–32: Gulf Beach Between unit extends 40 km (24 mi) along the beginning of dense vegetation, and the Brazos and San Bernard Rivers. 108 ha Gulf of Mexico from the jetties at the gulfside boundary is MLLW. This unit (269 ac) of shoreline in Brazoria County. Matagorda Ship Channel to the old includes lands known as wind tidal flats This unit is a segment of Gulf beach Colorado River channel. The inland that are infrequently inundated by between the Brazos River and the San boundary is the line indicating where seasonal winds. Bernard River. This unit borders an area dense vegetation begins, and the Unit TX–28: East Matagorda Bay/ known as Wolf Island. The landward gulfside boundary is MLLW. This unit Matagorda Peninsula Beach East. 129 ha boundary is the line indicating the includes lands known as wind tidal flats (321 ac) in Matagorda County. This unit beginning of dense vegetation, and the that are infrequently inundated by extends along the Gulf beach on the gulfside boundary is MLLW. This unit seasonal winds. northeast end of Matagorda Peninsula includes lands known as wind tidal flats from a point 0.8 km (0.5mi) southwest Unit TX–24: West Matagorda Bay/ that are infrequently inundated by of FM 457 southwest 10 km (6 mi.) to Western Peninsula Flats. 756 ha (1,868 seasonal winds. the southwest side of Brown Cedar Cut. Unit TX–33: Bryan Beach and ac) in Matagorda County. This unit This unit abuts with Unit TX–29 to the Adjacent Beach. 157 ha (388 ac) in extends along the bayside of Matagorda north. The landward boundary is the Brazoria County. The boundaries Peninsula from 7.5 southwest of Greens line indicating the beginning of dense enclose a length of Gulf beach between Bayou to 2.5 km (1.6 mi) northwest of vegetation, and the gulfside boundary is the mouth of the Brazos River and FM Greens Bayou. The landward boundary MLLW. This unit includes lands known 1495. The landward boundary is the is the line indicating the beginning of as wind tidal flats that are infrequently line indicating the beginning of dense dense vegetation, and the bayside inundated by seasonal winds. vegetation, and the gulfside boundary is boundary is MLLW. This unit includes Unit TX–29: Brown Cedar Cut. 119 ha MLLW. A portion of this area is owned lands known as wind tidal flats that are (294 ac) in Matagorda County. This unit and managed by the Texas Parks and infrequently inundated by seasonal extends 2 km (1.2 m.) both southwest Wildlife Department. This unit includes winds. and northeast of the main channel of lands known as wind tidal flats that are Unit TX–25: West Matagorda Bay/ Brown Cedar Cut along the bayside of infrequently inundated by seasonal Eastern Peninsula Flats. 232 ha (575 ac) Matagorda Peninsula in East Matagorda winds. in Matagorda County. This unit follows Bay, and abuts unit TX–28 to the Unit TX–34: San Luis Pass. 110 ha the bayside of Matagorda Peninsula southeast. The landward boundary is (272 ac) near the Brazoria/Galveston from Maverick Slough southwest for 5 the line indicating the beginning of County line. This unit extends along the km (3 mi). The unit begins at Maverick dense vegetation, and the bayside Gulf side of Galveston Island from San Slough to the northeast and extends 5 boundary is MLLW. The eastern Luis Pass to the cite of the former town km (3 mi) to the southwest, enclosing a boundary of TX–29 follows the change of Red Fish Cove (USGS 1:24,000 map, series of flats along Matagorda Bay. The in habitat from mud flats preferred by San Luis Pass, Texas; 1963, upland areas extend to where densely the piping plover, to slightly vegetated photorevision 1974). The landward vegetated habitat, not used by the piping dune system adjacent to TX–28. This boundary is the line indicating the plover, begins and where the unit includes upland areas used for beginning of dense vegetation, and the constituent elements no longer occur roosting by the piping plover. This unit gulfside boundary is MLLW. and include upland areas used for includes lands known as wind tidal flats Approximately 57 percent of the unit roosting by the piping plover. This unit that are infrequently inundated by includes flats in the floodtide delta that includes lands known as wind tidal flats seasonal winds. are State-owned and managed by the that are infrequently inundated by Unit TX–30: Northeast Corner East TGLO. This unit includes lands known seasonal winds. Matagorda Bay. 120 ha (297 ac) in as wind tidal flats that are infrequently Unit TX–26: Colorado River Diversion Matagorda County. This is a unit inundated by seasonal winds. Delta. 5 ha (13 ac) in Matagorda County. bounded on the north by the Gulf Unit TX–35: Big Reef. 47 ha (117 ac) This unit consists follows the shore of Intercoastal Waterway, on the east by in Galveston County. This unit consists the extreme eastern northeast corner of the northeast limit of Matagorda bay up of beach and sand flats on the north, West Matagorda Bay from Culver Cut to the line where dense vegetation begins, west, and east shore of Big Reef, down Dog Island Reef. The southeastern on the south by the boundary of Unit to MLLW. South Jetty is not included. tidally emergent portion of Dog Island TX–28, and on the west by MLLW. It is The area is currently managed by the Reef is included within the unit. The a system of flats associated with tidal City of Galveston. This unit includes landward boundary is the line channels. This unit includes upland lands known as wind tidal flats that are indicating the beginning of dense areas used for roosting by the piping infrequently inundated by seasonal vegetation, and the bayside boundary is plover and lands known as wind tidal winds. MLLW. The upland areas includes flats that are infrequently inundated by Unit TX–36: Bolivar Flats. 160 ha (395 upland areas used for roosting by the seasonal winds. ac) in Galveston County. This unit piping plover. This unit includes lands Unit TX–31: San Bernard NWR Beach. extends from the jetties on the known as wind tidal flats that are 166 ha (410 ac) in Matagorda and southwest end of the Bolivar Peninsula
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to a point on the Gulf beach 1 km (0.6 population of piping plover and Regulations at 50 CFR 402.16 require mi) north of Beacon Bayou. It includes therefore the adverse modification Federal agencies to reinitiate 5.0 km (3 mi) of Gulf shoreline. The analysis may be appropriate at the unit consultation on previously reviewed landward boundary is the line or groups of units level. To be actions in instances where critical indicating the beginning of dense considered ‘‘destruction or adverse habitat is subsequently designated and vegetation, and the gulfside boundary is modification,’’ a modification of critical the Federal agency has retained MLLW. The area is leased from TGLO habitat must be of such magnitude that discretionary involvement or control by Houston Audubon Society and the effect appreciably reduces the value over the action or such discretionary managed for its important avian of the critical habitat for the survival involvement or control is authorized by resources. The upland areas are used for and recovery of the listed species. law. Consequently, some Federal roosting by the piping plover. This unit Individuals, organizations, States, local agencies may request reinitiation of includes lands known as wind tidal flats governments, and other non-Federal consultation with us on actions for that are infrequently inundated by entities are affected by the designation which formal consultation has been seasonal winds. of critical habitat only if their actions completed, if those actions may affect Unit TX–37: Rollover Pass. 6 ha (16 occur on Federal lands, require a designated critical habitat. ac) in Galveston County. This unit Federal permit, license, or other Activities on private or State lands consists of Rollover Bay on the bayside authorization, or involve Federal requiring a permit from a Federal of Bolivar Peninsula. The landward funding. agency, such as a permit from the U.S. boundary is the line indicating the Section 7(a) of the Act requires Army Corps of Engineers (COE) under beginning of dense vegetation, and the Federal agencies to evaluate their section 404 of the Clean Water Act or a bayside boundary is MLLW. It includes actions with respect to any species that section 10(a)(1)(B) permit from the flats on State-owned land managed by is proposed or listed as endangered or Service, or some other Federal action, the TGLO. This unit captures the threatened and with respect to its including funding (e.g., from the Federal intertidal complex of the bay, and is critical habitat, if any is designated or Highway Administration (FHA), bounded by the towns of Gilchrist to the proposed. Regulations implementing Environmental Protection Agency east and the Gulf beach of the Bolivar this interagency cooperation provision (EPA), or Federal Emergency Peninsula to the south. This unit of the Act are codified at 50 CFR part Management Agency (FEMA)), will also includes lands known as wind tidal flats 402. Section 7(a)(2) requires Federal be subject to the section 7 consultation that are infrequently inundated by agencies to ensure that activities they process. Federal actions not affecting seasonal winds. authorize, fund, or carry out are not listed species or critical habitat, and likely to jeopardize the continued actions on non-Federal lands that are Effects of Critical Habitat Designation existence of such a species or to destroy not federally funded, authorized, or Section 7(a)(2) of the Act requires or adversely modify its critical habitat. permitted do not require section 7 Federal agencies, including the Service, If a Federal action may affect a listed consultation. to ensure that actions they fund, species or its critical habitat, the Critical habitat does not include authorize, or carry out do not destroy or responsible Federal agency must enter existing developed sites consisting of adversely modify critical habitat to the into consultation with us. Through this buildings, marinas, paved areas, boat extent that the action appreciably consultation, we would advise the ramps, exposed oil and gas pipelines diminishes the value of the critical agencies whether the permitted actions and similar structures. Since existing habitat for the survival and recovery of would likely jeopardize the continued developed sites, such as those described the species. For wintering piping existence of the species or adversely above, do not contain the primary plovers, we will conduct our modify critical habitat. constituent elements, they are not destruction and adverse modification When we issue a biological opinion included in the definition of critical analyses over the entire critical habitat concluding that a project is likely to habitat for the piping plover. designation and on a unit basis, where result in the destruction or adverse Section 4(b)(8) of the Act requires us appropriate. A consultation focuses on modification of critical habitat, we also to briefly evaluate and describe in any the entire critical habitat area provide reasonable and prudent proposed or final regulation that designated unless the critical habitat alternatives to the project, if any are designates critical habitat those rule identifies another basis for analysis, identifiable. Reasonable and prudent activities involving a Federal action that such as discrete units and/or groups of alternatives are defined at 50 CFR may destroy or adversely modify such units necessary for different life-cycle 402.02 as alternative actions identified habitat, or that may be affected by such phases, units representing distinctive during consultation that can be designation. Activities that may destroy habitat characteristics or gene pools, or implemented in a manner consistent or adversely modify critical habitat units fulfilling essential geographic with the intended purpose of the action, include those that alter the primary distribution requirements. In the case of that are consistent with the scope of the constituent elements to an extent that the piping plover, we cannot always Federal agency’s legal authority and the value of critical habitat for both the currently identify the breeding jurisdiction, that are economically and survival and recovery of the wintering population origin of birds on the winter technologically feasible, and that the piping plover is appreciably reduced. range. As we continue to collect Service believes would avoid the We note that such activities would also information on banded birds, future likelihood of jeopardizing the continued likely jeopardize the continued additional information may allow us to existence of listed species or the existence of the species, and that any analyze jeopardy and adverse destruction or adverse modification of reasonable and prudent alternatives to modification on the basis of the critical habitat. Reasonable and prudent remove jeopardy would be similar to identified population origin and alternatives can vary from slight project those removing adverse modification. individual units or groups of units. That modifications to extensive redesign or Thus, critical habitat designation is is, some designated critical habitat units relocation of the project. Costs unlikely to appreciably affect the may fulfill essential geographic associated with implementing a outcomes of section 7 consultations. distribution requirements for the reasonable and prudent alternative are However, we note that some Federal endangered Great Lakes breeding similarly variable. agencies may initiate consultation more
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often than before because critical habitat that the value of critical habitat for both North Carolina: David Rabon (919/856– has increased their awareness of the the survival and recovery of the piping 4520 extension 16) species. plover is appreciably reduced. These South Carolina: Paula Sisson (843/727– Federal activities that have undergone activities may destroy or adversely 4707, extension 18) previous section 7 consultation on the modify critical habitat by: Texas: Loretta Pressly (361/994–9005, effects of the action on wintering piping (1) Significantly and detrimentally extension 228) plover habitat are listed below. The altering the hydrology of tidal flats; action agencies involved in these (2) Significantly and detrimentally Summary of Changes From the consultations have included the COE, altering inputs of sediment and Proposed Rule nutrients necessary for the maintenance U.S. Coast Guard, and other Department For the proposed rule, shoreline was of geomorphic and biologic processes of Defense agencies, National Park mapped at variable scales (zoom factors) that insure appropriately configured and Service, FHA, Minerals Management and with less detail. For the final rule, productive systems; Service, Bureau of Land Management, all shoreline was mapped at 1:5000 or and Federal Energy Regulatory (3) Introducing significant amounts of emergent vegetation (either through larger (greater zoom) scale. In addition Commission. to the standardized mapping scale, the (1) Dredging and dredge spoil actions such as marsh restoration on shoreline was mapped more precisely. placement; naturally unvegetated sites, or through This change in mapping technique and (2) Seismic exploration; changes in hydrology such as severe (3) Construction and installation of rutting or changes in storm or detail resulted in an increase in reported facilities, pipelines, and roads wastewater discharges); total mapped shoreline kilometers and associated with oil and gas (4) Significantly and detrimentally miles for some States. This also resulted development; altering the topography of a site (such in increases in reported mapped (4) Oil and other hazardous material alteration may affect the hydrology of an shoreline distances by ownership for spills and cleanup; area or may render an area unsuitable some States. (5) Construction of dwellings, roads, for roosting); In the proposed rule, a single buffer marinas, and other structures, and (5) Reducing the value of a site by distance was set for all units in all associated activities including staging of significantly disturbing plovers from States. For the final rule, this equipment and materials; activities such as foraging and roosting methodology was not used (see (6) Beach nourishment, cleaning, and (including levels of human presence ‘‘Methods’’ section). stabilization (e.g., construction and significantly greater than those currently We have excluded Padre Island maintenance of jetties and groins, experienced); National Seashore from the proposed planting of vegetation, and placement of (6) Significantly and detrimentally critical habitat designation, based upon dune fences); altering water quality, that may lead to a determination under section 4(b)(2) of (7) Certain types and levels of decreased diversity or productivity of the Act that the benefits of excluding recreational activities, such as vehicular prey organisms or may have direct the Seashore outweigh the benefits of its activity that impact the substrate, detrimental effects on piping plovers (as inclusion. Please refer to the resulting in reduced prey or disturbance in the case of an oil spill); and ‘‘Exclusions Under 4(b)(2) of the Act’’ to the species; (7) Impeding natural processes that section of this rule for further (8) Stormwater and wastewater create and maintain washover passes explanation of this analysis. discharge from communities; and sparsely vegetated intertidal feeding (9) Sale, exchange, or lease of Federal habitats. Unit-Specific Changes land that contains suitable habitat and Requests for copies of the regulations Below are descriptions of unit- that may result in the habitat being on listed wildlife and inquiries about specific changes. The changes stated altered or degraded; prohibitions and permits may be below do not include those attributed to (10) Marsh and coastal restoration, addressed to the U.S. Fish and Wildlife our more fine-scale mapping from the particularly restoration of barrier islands Service, P.O. Box 1306, Albuquerque, proposed rule. Based on the verbal unit and other barrier shorelines; New Mexico 87103–1306 for Texas, and descriptions provided in the proposed (11) Military missions; and to the U.S. Fish and Wildlife Service, rule, we feel that the public had ample (12) Bridge or culvert construction, 1875 Century Boulevard, Suite 200, opportunity to comment on the unit reconstruction, and stabilization. Atlanta, Georgia 30345 for all other areas below as we have finalized them With this designation of critical States. If you have questions regarding in this rule. habitat for wintering piping plovers, we whether specific activities will notify the COE, other permitting constitute adverse modification of North Carolina agencies, and the public that Clean critical habitat, the following Fish and NC–3 Clam Shoals Water Act section 404 nationwide Wildlife Service personnel may be permits and other authorizations for contacted: For the proposed rule, the Digital activities within these designated Alabama: Darren LeBlanc (334/441– Orthophoto Quarter Quad (DOQQ) critical habitat areas must comply with 5181) image for this unit was not available, so section 7 consultation requirements for Florida: Northwest FL: Patty Kelly (850/ we estimated its location using a NC critical habitat. For each section 7 769–0552, extension 228), North FL: Atlas and Gazetteer. For the final rule consultation, we already review the Candace Martino (904/232–2580, we used a 1:100K Digital Raster Graphic direct and indirect effects of the extension 129), South FL: Dave (DRG) image. The correct version is proposed projects on piping plovers, Martin (561/562–3909 extension 230) located slightly outside of the bounds of and will continue to do so for the Georgia: Robert Brooks (912/265–9336, the proposed map. This unit is entirely designated critical habitat. extension 25) State-owned and its inclusion is Activities that may destroy or Louisiana: Debbie Fuller (337/291– supported by State biologists. This unit adversely modify critical habitat are 3124) consists of small uninhabited islands those that alter the primary constituent Mississippi: Linda LaClaire (601/321– that are relatively inaccessible by elements (defined above) to an extent 1126) humans and used primarily by birds.
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