# Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for Wintering Piping Plovers

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A01-16905

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 10, 2001
- **Citation:** 66 FR 36038

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG13
Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for Wintering Piping Plovers

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the Fish and Wildlife Service (Service), designate 137 areas along the coasts of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas as critical habitat for the wintering population of the piping plover (
Charadrius melodus
). This includes approximately 2,891.7 kilometers (km) (1,798.3 miles (mi)) of mapped shoreline and approximately 66,881 hectares (ha) (165,211 acres (ac)) of mapped area along the Gulf and Atlantic coasts and along margins of interior bays, inlets, and lagoons.

The population of piping plovers that breeds in the Great Lakes States is listed as endangered, while all other piping plovers are threatened species under the Endangered Species Act of 1973, as amended (Act). All piping plovers are considered threatened species under the Act when on their wintering grounds. Critical habitat identifies specific areas that are essential to the conservation of a listed species, and that may require special management considerations or protection. The primary constituent elements for the piping plover wintering habitat are those habitat components that are essential for the primary biological needs of foraging, sheltering, and roosting, and only those areas containing these primary constituent elements within the designated boundaries are considered critical habitat. The primary constituent elements are found in coastal areas that support intertidal beaches and flats (between annual low tide and annual high tide) and associated dune systems and flats above annual high tide. Section 7 of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to adversely modify designated critical habitat. As required by section 4 of the Act, we considered economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat.

DATES:

This final rule is effective August 9, 2001.

ADDRESSES:

The complete administrative record for this rule is on file at the U.S. Fish and Wildlife Service, Ecological Services Field Office, TAMUCC, Box 338, 6300 Ocean Drive, Corpus Christi, Texas, 78412. You may view the complete file for this rule, by appointment, during normal business hours at the above address. Copies of the final economic analysis and information regarding this critical habitat designation are available on the Internet at http://plover.fws.gov.

FOR FURTHER INFORMATION CONTACT:

Allan Strand, Acting Field Supervisor, at the above address (telephone 361/994-9005; facsimile 361/994-8262; email winterplovercomments@fws.gov).

SUPPLEMENTARY INFORMATION:

Background

Description

The piping plover (
Charadrius melodus
), named for its melodic mating call, is a small, pale-colored North American shorebird. It weighs 43-63 grams (1.5-2.25 ounces) and is 17-18 centimeters (cm) (about 8 inches) long (Haig 1992). Its light sand-colored plumage blends in well with beaches and sand flats, part of its primary habitat. During the breeding season, the legs are bright orange, and the short stout bill is orange with a black tip. There are two single dark bands, one around the neck and one across the forehead between the eyes. Plumage and leg color help distinguish this bird from other plovers. In winter, the bill turns black, the legs remain orange but pale, and the black plumage bands on the head and neck are lost. Chicks have speckled gray, buff, and brown down, a black beak, orange legs, and a white collar around the neck. Juveniles resemble wintering adults and obtain their adult plumage the spring after they fledge (Prater
et al.
1977).

Range and Biology

Piping plovers breed in three discrete areas of North America: The Northern Great Plains, the Great Lakes, and the Atlantic Coast. The Northern Great Plains population historically bred from Alberta to Ontario, Canada, south to Kansas and Colorado. While Great Lakes breeding sites once ranged throughout the Great Lakes region, recent nesting records are limited to Michigan and Wisconsin. Atlantic Coast breeding sites are found from Newfoundland, Canada, south to North Carolina. Generally, piping plovers favor open sand, gravel, or cobble beaches for breeding. Breeding sites are generally found on islands, lake shores, coastal shorelines, and river margins.

Piping plovers winter in coastal areas of the United States from North Carolina to Texas. They also winter along the coast of eastern Mexico and on Caribbean islands from Barbados to Cuba and the Bahamas (Haig 1992). The international piping plover winter censuses of 1991 and 1996 located only 63 percent and 42 percent of the estimated number of breeding birds, respectively (Haig and Plissner 1993, Plissner and Haig 1997). Of the birds located on the United States wintering grounds during these two censuses, 89 percent were found on the Gulf Coast and 8 percent were found on the Atlantic Coast. Information from observation of color-banded piping plovers indicates that the winter ranges of the breeding populations overlap to a significant degree. Therefore, the source breeding population of a given wintering individual cannot be determined in the field unless it has been banded or otherwise marked.

Piping plovers begin arriving on the wintering grounds in July, with some late-nesting birds arriving in September. A few individuals can be found on the wintering grounds throughout the year, but sightings are rare in late May, June, and early July. Migration is poorly understood, but most piping plovers probably migrate non-stop from interior breeding areas to wintering grounds (Haig 1992). However, concentrations of spring and fall migrants have been observed along the Atlantic Coast (USFWS 1996).

Behavioral observations of piping plovers on the wintering grounds suggest that they spend the majority of their time foraging (Nicholls and Baldassarre 1990b; Drake 1999a, 1999b). Primary prey for wintering plovers includes polychaete marine worms, various crustaceans, insects, and occasionally bivalve mollusks (Nicholls 1989; Zonick and Ryan 1995), that they peck from on top or just beneath the surface. Foraging usually takes place on moist or wet sand, mud, or fine shell. In some cases, this substrate may be covered by a mat of blue-green algae. When not foraging, plovers can be found roosting, preening, bathing, in aggressive encounters (with other piping plovers and other species), and moving among available habitat locations (Zonick and Ryan 1996).

The habitats used by wintering birds include beaches, mud flats, sand flats, algal flats, and washover passes (areas where breaks in the sand dunes result in an inlet). Individual plovers tend to return to the same wintering sites year after year (Nicholls and Baldassarre 1990b, Drake 1999a). Wintering plovers are dependent on a mosaic of habitat

patches, and move among these patches depending on local weather and tidal conditions. One study by Drake (1999a) monitored the movement of 48 piping plovers in south Texas, for one season. She found, using 95% of the documented locations, that these birds had a mean home range of 1,262 ha (3,117 ac). Drake (1999) also noted that the mean linear distance moved per individual bird was 3,294 m (2 mi) for the fall through the spring of 1997-1998.

In late February, piping plovers begin leaving the wintering grounds to migrate back to breeding sites. Northward migration peaks in late March, and by late May most birds have left the wintering grounds (Eubanks 1994).

Population Status

In recent decades, piping plover populations have declined drastically, especially in the Great Lakes area. In the early 1900s, uncontrolled hunting drove them nearly to extinction. Protective legislation helped them to recover by 1925, and populations reached a high in the 1930s (USFWS 1994). These numbers soon plummeted, and numbers continued to decline in the 1940s and 1950s as shoreline development expanded, resulting in the loss of plover breeding habitat. River flow alteration, channelization, and reservoir construction have also led to loss of breeding habitat.

In 1973, the piping plover was placed on the National Audubon Society's Blue List of threatened species. By that time, the Great Lakes population of piping plovers had been extirpated from shoreline beaches in Illinois, Indiana, Ohio, New York, Pennsylvania, Minnesota, and Ontario, Canada, and only a few birds continued to nest in Wisconsin (Russell 1983) and Michigan. The Canadian Committee on the Status of Endangered Wildlife in Canada designated the piping plover as “Threatened” in 1978 and elevated the species” status to “Endangered” in 1985 (Canadian Wildlife Service 1989). At the time the species was listed under the Act in 1985, the Great Lakes population numbered only 17 known breeding pairs, and the breeding areas had been reduced from sites in eight States to only northern Michigan (Stucker and Cuthbert, unpublished data). In recent years, the Great Lakes population has gradually increased and expanded to the south and west as a result of intensive conservation measures. Recent increases in the Atlantic Coast breeding population have also been attributed to intensive management of nesting beaches. While overall the Atlantic Coast population is increasing, increases are regionally variable with some areas experiencing declining populations. Breeding census results show a marked decline of the population breeding in the Northern Great Plains of the United States (Plissner and Haig 1997).

Overall winter habitat loss is difficult to document; however, a variety of human-caused disturbance factors have been noted that may affect plover survival or utilization of wintering habitat (Nicholls and Baldassarre 1990a, Haig and Plissner 1993). These factors include recreational activities (motorized and pedestrian), inlet and shoreline stabilization, dredging of inlets that can affect spit (a small point of land, especially sand, running into water) formation, beach maintenance and renourishment (renourishing the beach with sand that has been lost to erosion), and pollution (e.g., oil spills) (USFWS 1996). The peer-reviewed, revised recovery plan for the Atlantic piping plover population recognizes the need to protect wintering habitat from direct and indirect impacts of shoreline stabilization, navigation projects, and development. Adult survivorship over the wintering period plays a significant role in maintaining current populations and in accomplishing increases in population levels required to achieve recovery.

Previous Federal Actions

On December 30, 1982, we published a Notice of Review in the
Federal Register
(47 FR 58454) that identified vertebrate animal taxa being considered for addition to the List of Threatened and Endangered Wildlife. The notice included the piping plover as a Category 2 Candidate species, indicating that we believed the species might warrant listing as threatened or endangered, but that we had insufficient data to support a listing at that time. Subsequent review of additional data indicated that the piping plover warranted listing, and in November 1984, we published a proposal to list the piping plover as endangered (Great Lakes breeding population) and threatened (all other piping plovers, including all birds on non-breeding areas) in the
Federal Register
(49 FR 44712).

The proposed listing was based on the decline of the species and the magnitude of existing threats, including habitat destruction, disturbance by humans and pets, high levels of predation, and contaminants. On December 11, 1985, we published the final rule (50 FR 50720), listing the piping plover as endangered in the Great Lakes watershed (Illinois, Indiana, Michigan, northeastern Minnesota, New York, Ohio, Pennsylvania, Wisconsin, and Ontario, Canada) and as threatened elsewhere within its range. The listing includes piping plovers breeding in Canada, with their status under the Act determined by whether they breed in the watershed of the Great Lakes (endangered) or elsewhere (threatened). All piping plovers on migratory routes outside of the Great Lakes watershed or on their wintering grounds are considered threatened. We did not designate critical habitat for the species at that time.

In 1986, two U.S. recovery teams were appointed to develop recovery plans for the piping plovers breeding in the Atlantic Coast States and those breeding in the Great Lakes/Northern Great Plains region. We published those plans in 1988 (USFWS 1988a, 1988b). In 1994, we began to revise the plan for the Great Lakes/Northern Great Plains plovers by developing and distributing for public comment a draft that included updated information on the species. More recently, we decided that the recovery of these two regional populations would benefit from separate recovery plans that would direct separate recovery programs. Separate recovery plans for the Great Lakes and Northern Great Plains piping plovers are presently under development. The recovery plan for the Atlantic Coast-breeding plovers was revised in 1996 (USFWS 1996). We exchange observers and coordinate recovery activities with two Canadian recovery teams, with a strong focus on protection of the wintering habitat shared by piping plovers breeding in both countries.

In December 1996, Defenders of Wildlife (Defenders) filed a lawsuit against the Department of the Interior and the Service for failing to designate critical habitat for the Great Lakes population of the piping plover. Defenders filed a second, similar lawsuit for the Northern Great Plains piping plover population in 1997. These lawsuits were subsequently combined (
Defenders of Wildlife et al.
v.
Bruce Babbitt et al.,
Consolidated Cases Civil No. 1:96-CV-02695AER and Civil No. 1:97-CV00777AER). In February 2000, the court issued an order directing us to publish a proposed critical habitat designation for the Great Lakes population of the piping plover by June 30, 2000. Publication of a proposal for nesting areas of the Northern Great Plains population of piping plover by May 31, 2001, was also ordered. Since we cannot distinguish the Great Lakes and Great Plains birds on their wintering grounds, we felt it was appropriate to propose critical habitat for all U.S.-wintering piping plovers collectively. Further, we determined

that the appropriate course of action would be to propose critical habitat for all U.S.-wintering piping plovers on the same schedule required, under court order, for the Great Lakes breeding population. A subsequent order, after requesting the court to reconsider its original order relating to final critical habitat designation, directed us to finalize the critical habitat designations for the Great Lakes population by April 30, 2001, and for the Northern Great Plains population by March 15, 2002. On May 7, 2001, we published a notice in the
Federal Register
(66 FR 22983) announcing a 60-day delay, until June 29, 2001, in making our final determination of critical habitat for the wintering piping plover. The notice explained that we needed additional time to complete our analyses required under section 4(b)(2) of the Act.

We published our proposed designation of critical habitat for wintering piping plovers in the
Federal Register
on July 6, 2000 (65 FR 41782), and requested comments on the proposal by September 5, 2000. We held 10 public hearings and 10 public meetings on the proposed rule in Wilmington, North Carolina, on July 17, 2000; Savannah, Georgia, on July 19, 2000; Tallahassee, Florida, on July 21, 2000; Fort Myers, Florida, on July 24, 2000; Mobile, Alabama, on July 26, 2000; Baton Rouge, Louisiana, on July 27, 2000; Galveston, Texas, on July 31, 2000; Corpus Christi, Texas, on August 2, 2000; McAllen, Texas, on August 4, 2000; and South Padre Island, Texas, on November 14, 2000. We held additional public meetings in Morehead City, North Carolina, on August 16, 2000; in Manteo, North Carolina, on August 17, 2000; Marco Island, Florida, on October 10, 2000; and Rio Hondo, Texas, on August 23, 2000.

On August 30, 2000 (65 FR 52691), we published a notice in the
Federal Register
extending the public comment period to October 30, 2000, and announced the availability of the draft economic analysis. On October 27, 2000 (65 FR 64414), we again published a notice in the
Federal Register
extending the public comment period until (November 24), 2000, and provided notice of a tenth public hearing on the proposed rule. On February 22, 2001 (66 FR 11134), we reopened the comment period until March 1, 2001, to allow for additional comments to be incorporated into the record and allow for us to base our final decision on the best scientific and commercial information available.

Summary of Comments and Recommendations

As mentioned above, we requested all interested parties to submit comments or information that might bear on the designation of critical habitat for wintering piping plovers (65 FR 41782). We contacted all appropriate State and Federal agencies, Tribes, county governments, scientific organizations, and other interested parties and invited them to comment. In addition, we published newspaper notices inviting public comment and announcing the public hearings in the following newspapers—Wilmington
Morning Star
in North Carolina; Charleston
Post and Courier
in South Carolina; Savannah
Morning News
in Georgia; Florida
Times Union
, Tallahassee
Democrat
, Fort Myers
News Press
, Key West
Free Press, St. Petersburg Times
, Panama City
News Herald
, and Pensacola
News Journal
in Florida;
Mobile Register
, Alabama; Biloxi
The Sun Herald
, Mississippi; New Orleans
Times Picayune
and Baton Rouge
The Advocate
in Louisiana; and the Houston
Chronicle
, Galveston
Daily News, Port Arthur News, Texas City Sun, Brownsville Herald
, Corpus Christi
Caller-Times, The Monitor
(distributed from Rio Grande City to South Padre Island), and the
Facts
(Brazosport) in Texas.

We held 10 public hearings on the proposed rule (see “Previous Federal Action” section above for dates and locations). Transcripts of these hearings are available for inspection (see
ADDRESSES
section).

We received a total of 6,013 comments (counting both written and oral comments) from individuals, agencies, and organizations, plus one petition containing 537 signatures. Of these comments, 5,800 commenters and the petition were specific to the designation proposed for Marco Island, Florida. Of the Marco Island comments, 44 commenters and 537 signatories to the petition favored the designation as proposed, 5,736 opposed designation on Marco Island, and 20 supported a revised designation or only provided information relative to the proposal. There were 213 commenters who were not specific to Marco Island. Of those, 85 favored the designation, 94 opposed it, and 34 did not state a position but provided information.

We reviewed all comments received for substantive issues and new data regarding critical habitat and wintering piping plovers. Some comments resulted in changes between the proposed and final designations, and those comments are discussed in the “Summary of Changes From the Proposed Rule” section of this document. We address the rest of the substantive comments in the following summary. For readers' convenience we have assigned comments to major issue categories. Repeated or very similar comments are combined into single comments and responses.

Issue A: General Biological Comments

A number of commenters touched on biological issues surrounding the piping plover.

Comment 1:
The Service's Southeast Region Home Page cites habitat loss due to navigation, dredging, and shoreline stabilization and replenishment projects as major contributors to the species' decline. That statement is unsupported in the literature. Piping plovers are extremely mobile and thrive in a changing environment. The cited activities do not adversely impact wintering piping plovers.

Our Response:
We disagree with the statement made by the commenter. The commenter is referring to our website at http://plover.fws.gov, that describes the life history and threats of the piping plover throughout its range. Dredging projects and shoreline manipulations in wintering areas can have an effect on the bird's food base, and result in permanent habitat loss and direct disturbance of individual birds. We already consult with Federal agencies that fund or carry out projects involving dredging, beach nourishment, and other shoreline stabilization activities, most notably with the Army Corps of Engineers, because of the effect of such projects on piping plover habitat. The purpose of many shoreline stabilization projects is the prevention of overwash processes (the method by which sediment (sand) is transported across a barrier island) that form inlets and perpetuate sand and mud flats. As sand and mud flats are identified as critical habitat for the plover, there is a connection between these activities and the formation and maintenance of habitat for the plover. Zonick's (2000) dissertation similarly highlights the importance of preserving “washover pass” habitat in Texas. Zonick (2000) found that washover passes are used by piping plovers both as feeding and roosting areas. Washover areas are created by the flow of water through the primary dune line with deposition of sand on the barrier flats, marsh, or into the lagoon, depending on the storm magnitude and the width of the beach. Additionally, the peer-reviewed revised recovery plan for the Atlantic piping plover population recognizes the need to protect wintering habitat from direct and indirect impacts of shoreline stabilization, navigation projects, and

development. In general, through our consultations with other Federal agencies, we have found that these activities can be timed and designed to minimize effects on piping plovers.

Comment 2:
Army Corps of Engineers projects are designed to avoid and minimize impacts to listed species and, where feasible, features to promote species conservation are included in projects. Corps of Engineers dredged material disposal benefits plovers by providing foraging habitat. These benefits should have been discussed in the proposal.

Our Response:
We stated in the proposed rule that “Several of these components (sparse vegetation, little or no topographic relief) are mimicked in artificial habitat types used less commonly by piping plovers (e.g., dredge spoil sites).” Nicholls (1989) documented that piping plovers were observed on spoil areas 6 percent of the time and on sandflats 27 percent of the time. Her survey coverage included 2,705 km (1,680 mi) of coastline along portions of nine states from Virginia to Texas. Spoil sites do not seem to be the preferred habitat for the piping plover, although when more suitable habitat is lacking, spoil sites do create some habitat for these birds. We appreciate the Corps' efforts to promote species conservation through design feature modification of projects.

Comment 3:
Project delays related to the critical habitat designation for wintering piping plovers, when added to already-narrow windows imposed by protection of other threatened and endangered species such as sea turtles, seabeach amaranth, and beach mice, may affect the Corps of Engineers' ability to conduct mission-related activities.

Our Response:
Since the species was listed in 1986, the Corps of Engineers has been subject to the consultation requirements of the Act, including analyzing the potential effects on the species habitat. Timing of projects has been considered in consultations conducted under the jeopardy standard since listing, and, in general, we have found that projects can be timed and designed to minimize effects on piping plovers.

Comment 4:
The causes for piping plover declines are unclear, but it is likely any declines are a result of threats to breeding areas rather than wintering habitat. Threats to wintering habitat are not discussed, nor are any declines in habitat acreage documented. Accordingly, how can the designation possibly benefit wintering piping plovers?

Our Response:
Historically, plovers were decimated by unregulated hunting. The major present-day threats are largely on breeding areas, but wintering habitats are also essential to the conservation of this species. Adult survivorship over the wintering period plays a significant role in maintaining current populations and in accomplishing increases in population levels required to achieve recovery. In the face of current and foreseeable continued coastal development and increased recreational use, less suitable habitat may be available each year for piping plover recovery. Therefore, we have designated the areas that have consistent plover use and best meet the biological needs of the species. The amount of wintering habitat included in this designation appears sufficient to support future recovered populations, and the existence of this habitat is essential to the conservation of this species. In addition, the designation benefits species conservation by alerting public and private entities to the importance of wintering habitat.

Comment 5:
Comments were received that questioned the relative use of a specific area compared to the overall population abundance. Of the 50 percent of piping plovers accounted for in the 1996 census, only 8 percent were documented on the Atlantic Coast. How can the Atlantic Coast be considered essential to the species' conservation?

Our Response:
We have determined that most sites with consistent occurrence of piping plovers should be designated as critical habitat in order to provide for the recovery of the species. There are an estimated 32 pairs remaining of the endangered Great Lakes breeding population of piping plovers. Current data shows that Atlantic Coast sites are even more important to the Great Lakes piping plovers than those on the Gulf Coast. Of the 39 individuals from the Great Lakes population sighted on the wintering ground between 1993 and spring of 2000, 26 (67%) were in South Carolina, Georgia, or the Atlantic Coast of Florida (Wemmer 2000). Thus, we consider the Atlantic Coast to be essential to the recovery of the piping plover.

Comment 6:
In basing the critical habitat designation on observational data, the proposal is biased toward areas most frequently visited by bird watchers and other beach users. Meanwhile, many areas with restricted access but likely containing excellent habitat were not proposed. Given that situation and the fact that 50 percent of wintering plovers are unaccounted for, how can the Service say the proposed areas are essential for this species?

Our Response:
We believe the effect of observational bias is minimal because ornithologists and birders are persistent about seeking out birds. Data we received from state biologists documented surveys of the entire coastlines in many states. Some geographic data provided from the 1991 and 1996 International Censuses show that a large area of the coastline is not used by the birds. Only sites where plovers have been observed were included in the critical habitat designation.

Comment 7:
One-hundred-forty-seven areas are proposed as critical habitat. How could failure to designate any one of these areas lead to extinction of the piping plover?

Our Response:
The criterion for critical habitat designations is not whether the sites are essential to prevent extinction; it is whether the sites are essential to the conservation of the species and may require special management consideration or protection. Conservation means the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which listing under the Act is no longer necessary (i.e., recovered). Subsection 4(b)(2) of the Act allows us to exclude areas from critical habitat designation where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species.

There are an estimated 32 pairs remaining of the endangered Great Lakes breeding population of piping plovers and data show that this population uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer 2000). Therefore, identification of essential habitat should not rule out any sites where piping plovers consistently over-winter, since these sites may be used by the highly endangered Great Lakes population. We have determined that most sites with consistent occurrence of piping plovers should be designated as critical habitat in order to provide for the recovery of the species.

Comment 8:
The Service should define “wintering.” Does the designation include migrating piping plovers?

Our Response:
We define “wintering” as areas used by birds during the non-breeding season. Piping plovers begin arriving on the wintering grounds in July, with some late-nesting birds arriving in September. A few individuals can be found on the wintering grounds throughout the year, but sightings are rare in late May, June, and early July.

This designation did not distinguish migrating birds; however, some areas designated as wintering habitat are also used by migrating and breeding birds in North Carolina and South Carolina. Migration is poorly understood, but it appears that inland birds may fly non-stop to Gulf coast sites (Haig 1992). It is believed that the Atlantic population follows a narrow strip along the Atlantic coast during spring and fall migration with some crossover to Gulf Coast wintering areas (USFWS 1996).

Comment 9:
The international censuses provide only a snapshot of mid-winter distribution and abundance, but tell little about seasonal variation in habitat use and plover movements. While many plovers appear relatively sedentary, observations at certain sites in North Carolina (McConnaughy
et al.
1990) and Texas (Eubanks 1994) have reported large numbers during or prior to migration. These staging and migratory stopover areas may be particularly critical for migratory shorebirds (Myers 1983; Skagen and Knopf 1993) and should be included as critical habitat.

Our Response:
As stated above, migration is poorly understood, but it appears that inland birds may fly non-stop to Gulf Coast sites (Haig 1992). Based on McConnaughy's study, some areas are used as staging or stopover areas, and we have included those areas in the designation when we have survey data to support consistent piping plover use. It is believed that the Atlantic population follows a narrow strip along the Atlantic coast during spring and fall migration from the Gulf coast (USFWS 1996). The sites that McConnaughey
et al.
(1990) documented in North Carolina as having relatively high numbers of plovers observed during migration are within the designated critical habitat units. The sites identified by Eubanks (1994) in Texas are not consistently used and were not included in the designation.

Comment 10:
The Louisiana coast is remote and not subject to extensive human presence. Further, there is no documentation that Louisiana supports a significant portion of the wintering plover population. Designation of over 1 million acres can only be considered excessive.

Our Response:
We agree that human development is not as great a threat along Louisiana's coasts as it is in other areas within the plover's wintering range. We disagree however, that there is no documentation that Louisiana supports a significant portion of the wintering plover population. The International Piping Plover Surveys have consistently identified Louisiana as having the second highest numbers of wintering piping plovers after Texas. Since publication of the proposed rule we were able to conduct surveys in the remote deltas of Louisiana, where access is difficult. Based on the results of these surveys, we refined our critical habitat designation to the maximum extent possible to include only those areas having documented use by piping plovers. This has resulted in less acreage being designated in Louisiana.

Comment 11:
No data were presented to show that piping plovers exhibit site fidelity and cannot simply move to other areas if an area is destroyed.

Our Response:
Johnson and Baldassarre (1988) found relatively high site fidelity for plovers wintering in the Mobile Bay area in Alabama. The revised recovery plan for the piping plover Atlantic coast population noted several reports of banded birds returning year after year to the same wintering sites on both the Atlantic and Gulf coasts (S. Bogert, pers. comm. 1988; T. Below, National Audubon Society, pers. comm. 1988; T. Eubanks, pers. comm. 1989; Zonick and Ryan 1993; J. Fussell, pers. comm. 1995). Wemmer (2000) presents information on intra- and inter-year site fidelity for Great Lakes plovers, which documents one bird that has been observed during 9 of 11 winters since 1988 at Marco Island, Florida.

Comment 12:
Comments have been received expressing concerns with the size of designated areas. Most think that the designated areas are too large; a few think that the units are not large enough, thereby not allowing for changes that occur during known dynamic coastal processes.

Our Response:
As described in the “Methods” section of this rule, in the proposed rule, a single buffer distance was set for all units in all states (500 m (1,640 ft)). This buffering methodology resulted in areas of water (deeper than mean lower low water (MLLW)) and areas of dense vegetation being included in the designation, which are not utilized by piping plovers. MLLW is defined as the average of the lower low water height of each tidal day observed over the National Tidal Datum Epoch. In the final rule, we abandoned this methodology for a more precise means of defining the areas that contain the physical and biological features essential to the wintering piping plover. This change in methodology results in smaller units of designated critical habitat than that of the proposed rule. We also removed developed areas from mapped units where possible. (See our response to comments under “Issue G: Mapping and Primary Constituent Elements.”).

In order to capture the dynamic nature of the coastal habitat and the intertidal areas used by the piping plover, we have textually described each unit as including the area extending out from the landward boundaries to the MLLW. Designating specific locations for critical habitat for the piping plovers is difficult because the coastal areas they use are constantly changing due to storm surges, flood events, and other natural geo-physical alterations of beaches and shorelines. Thus, to best insure that areas considered essential to the piping plover will remain in the designation over time, our textual unit descriptions will constitute the definitive determination as to whether an area is within the critical habitat boundary. Our textual unit descriptions describe the geography of the area using reference points, include the areas from the landward boundaries to the MLLW, which encompasses intertidal areas that are essential foraging areas for piping plovers, and may describe other areas within the unit that are utilized by the piping plover and contain the primary constituent elements (e.g., upland areas used for roosting and wind tidal flats used for foraging).

Comment 13:
Requests have been made to modify specific units in order to avoid areas where existing and future projects are planned or may occur.

Our Response:
Critical habitat is designated on the basis of scientific data, but areas may be excluded on the basis of economic impact or any other relevant impact if the Secretary determines that the benefits of exclusion outweigh the benefits of specifying such areas as critical habitat. We may not exclude areas if such exclusion will result in the extinction of the species. While the final Economic Analysis identifies some impacts following this critical habitat designation, this consultation activity is largely attributable to the listing. This is based on the fact that all the designated critical habitat units have documented use by piping plovers and planned projects are currently subject to the regulatory provisions of section 7(a)(2) and section 9 of the Act due to the listing of the piping plover. See the “Economic Analysis” and the “Exclusions Under 4(b)(2) of the Act” sections of this rule.

Comment 14:
Many commenters have asked why we do not designate areas that are not heavily used and inaccessible by man, therefore more ideal for piping plovers.

Our Response:
We have designated areas with consistent documentation of piping plover use. This includes both areas heavily used and inaccessible by man. Many inaccessible areas do not have the primary constituent elements needed by plovers. Piping plovers choose areas that meet their physical and biological needs. Plovers exhibit a certain amount of site fidelity and were using many of these places before they became developed.

Comment 15:
Commenter states that literature (Nicholls Baldassarre 1990b) seems to suggest that people and off-road vehicles preclude piping plovers from occupying wintering sites. There are beaches where piping plovers and beach users successfully cohabit. Studies cited in the recovery plan do not provide conclusive scientific data on whether or not human-caused impacts influence wintering piping plovers.

Our Response:
Section 4 of the Act requires us to base our critical habitat designations on the best available scientific information. We note that there are several studies documenting the effects of human presence on the behavior of birds. Bird species vary in their response to human disturbances (pedestrian and vehicular) (Rodgers and Smith 1997). On the breeding grounds piping plovers elicit a significantly higher response to humans than to potential predators or non-predator species (Flemming
et al.
1988). Rodgers and Smith (1997) documented that shorebirds are more easily flushed than other species of coastal birds. This may be because shorebirds on the wintering grounds are migrant species that rarely interact with humans. Elliott and Teas (1996) evaluated direct and indirect measures of the effects of human disturbance on piping plovers in Texas. Piping plovers (breeding and wintering) not encountered by humans spend more time foraging and less time in active nonforaging behavior (Elliott and Teas 1996; Burger 1991). Zonick and Ryan (1996) documented in Texas that beach vehicular density and piping plover abundance were negatively associated. On the breeding grounds, the effects of people have caused increased shifts in habitat use and decreased foraging time with more time devoted to alertness (Burger 1991; Staine and Burger 1994).

Increased human disturbance increases energy expenditure by birds and reduces their food intake (Belanger and Bedard 1990). Whether this is enough to affect their maintenance of fat reserves for long-range migration or to maintain adequate body temperatures under cooler winter conditions is unknown. If the level of disturbance is high enough, piping plovers may be forced to move to less optimal habitat (Elliott and Teas 1996). We do not know what effect foraging in marginal areas has on the piping plover's ability to survive the winter, and successfully reach the breeding grounds, or on reproductive success once on the breeding grounds. Studies on the breeding grounds that may apply on the wintering grounds show that piping plovers that have diverse habitats available for foraging can more easily cope with space competition and human disturbances than those with fewer habitats (Burger 1994).

Since the piping plover was listed in 1986, no beach closures have occurred due to the presence of piping plovers in their wintering range, although in the breeding range (e.g., Plymouth, Massachusetts), partial beach closures have occurred to protect chicks and adult piping plovers prior to the chicks fledging. Additionally, as stated in our response to B.18, we believe that the effect of normal human presence on piping plovers in their wintering habitat does not have serious consequences at the population level, and we do not expect this designation to affect recreational beach use.

Comment 16:
Several commenters suggested that certain units (Yent Bayou, Marco Island, Unit TX-34 (San Luis Pass), and Rollover Bay and surrounding areas) are not essential to the conservation of the species and should not be designated as critical habitat.

Our Response:
As required under the Act, we designated critical habitat essential for the conservation of the species based on the best scientific data available. We identified areas throughout a broad geographic coverage along the coast that contained the primary constituent elements and where occurrence data indicated a consistent use by piping plovers. The essential features found on the designated areas may require special management consideration or protection to ensure their contribution to the species' recovery. We believe that the designated areas are sufficient, and are needed to support piping plovers when recovered. We have addressed these areas specifically in “Issue B: Site-specific Biological Comments.”

Comment 17:
One commenter questioned the need to designate critical habitat in areas where the piping plover does not breed.

Our Response:
This designation is for wintering habitat only. Piping plovers spend up to 10 months (83 percent of their lifetime) of each year on the wintering grounds. It is, therefore, important to insure their biological and physical needs are met on the wintering grounds. See also response to A.4.

Comment 18:
Several commenters requested that vast areas of open sandy beaches, open water, and heavily vegetated dunes not be designated critical habitat and questioned why the designation includes areas up to 100 meters offshore.

Our Response:
We disagree with the statement that “vast” areas of open sandy beaches have been designated as critical habitat. Areas with documented piping plover use have been designated. These areas are used by piping plovers because they contain the primary constituent elements and are essential to the conservation of the species. The primary constituent elements are found in geologically dynamic coastal areas that support intertidal beaches and flats and associated dune systems and flats above annual high tide (i.e., sandy beaches). Because areas used by piping plovers are ephemeral habitats, we must consider their changing nature over time. As explained in the “Methods” section, we abandoned the buffering methodology used in the proposed rule and the revised textual unit descriptions are now the definitive source of determining unit boundaries. This change has resulted in critical habitat units that are significantly scaled down in size from what was presented in the proposed rule. We also believe that we have captured the ephemeral nature of the habitat within these unit descriptions, by including areas to MLLW.

Comment 19:
While there may be some sites within the piping plover's range that are very remote or logistically difficult to survey, only sites with documented occurrence of the species should be designated as critical habitat.

Our Response:
Since the initial proposal, we obtained data on piping plover occurrences in critical habitat areas where the primary constituent elements were present but where we had no piping plover occurrence data because the areas were logistically difficult to survey. We have subsequently refined our designation to include only those areas that contain the primary constituent elements essential for the conservation of the species and for that we have known piping plover occurrences. See the “Summary of Changes From the Proposed Rule” section and our response to A.10.

Issue B: Site-specific Biological Comments

A number of commenters spoke to specific geographical areas of the designation.

Comment 1:
Several commenters have recommended the inclusion of

additional areas in the critical habitat designation and have submitted data supporting consistent use of these areas by piping plovers. The areas that fall under these criteria in South Carolina include Port Royal Mud Flats, Beaufort County. Areas in Florida include Dog Island, Franklin County; Big Hickory Island, Lee County; north tip of Anna Maria Island, Manatee County; high marsh and salt pans inland of Bunche Beach, Lee County (adjacent to Unit FL-25); Cape Haze/Gasparilla Sound State Buffer Preserve, Charlotte County; and northeast end of Spanish Harbor Keys “Horseshoe Pit,” Monroe County. In Alabama, Gulf State Park was recommended for inclusion.

Our Response:
We appreciate receiving the additional information. We will continue to monitor and collect new information and may revise the critical habitat designation in the future if sufficient new information supports a change. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition (see response to E.5). Should new information become available to support the need to designate critical habitat in other areas, we will consider amending this designation.

Comment 2:
Other areas have been recommended for inclusion, based on presence of primary constituent elements; however, no significant data on plover occurrence was presented by commenters. Such areas recommended in North Carolina include expansion of units 6 and 7 to include all of the northern and southern Core Banks area. South Carolina areas are Fripp Island (habitat has been riprapped), Morse Creek, and St. Phillips Island, Beaufort. The areas in Florida include the South tip of Amelia Island, Nassau County; high marsh and salt pans of Charlotte Harbor State Buffer Preserve, Charlotte County; Passage Key National Wildlife Refuge, Manatee County; north end of Longboat Key, Sarasota County; Ft. Pickens, Santa Rosa County; Little Sabine, Santa Rosa County; Choctawhatchee Bay, Okaloosa County; Cape St. George, Franklin County; St. Marks National Wildlife Refuge, Piney Island, Wakulla County; Aucilla Wildlife Management Area, Steinhatchee Area, Taylor County; Cedar Key and area, Levy and Dixie Counties; Chassahowitzka National Wildlife Refuge, Homosassa Island, Citrus County; Siesta and Casey Keys, Sarasota County; Mouth of Peace River, Charlotte County; Pine Island and Pine Island National Wildlife Refuge, Mound Key, Carl Johnson Park, Lovers Key State Recreation Area, and Delnor Wiggins Pass, Lee County; Rookery Bay National Estuarine Sanctuary and Kice Island, Collier County; north end of Key Largo and other Keys in general, Monroe and Dade Counties; Hobe Sound National Wildlife Refuge and Blowing Rocks Preserve, near Jupiter Inlet, Martin County; Hutchinson Island, south of Ft. Pierce, St. Lucie County; Sebastian Inlet State Park, Pelican Island National Wildlife Refuge, Indian River County; Spessard Holland County Park, Brevard County; Canaveral National Seashore, Brevard and Volusia Counties; Anastasia State Recreation Area, St Augustine Beach to Ft. Matanzas Inlet, St. Johns County; Midnight Pass, Sarasota County; Sand Key, Pinellas County; St. Andrews State Recreation Area, Bay County; and Port Charlotte Beach State Recreation Area, Charlotte County. One area, Sand Island, was requested for inclusion in Mississippi. In Alabama, the area known as Alabama (also known as Florida) Point and Bon Secour National Wildlife Refuge were suggested for inclusion.

Our Response:
No data were provided to support the designation of the above areas as critical habitat. Many of these sites have been monitored as part of piping plover and other shorebird surveys. No consistent use by piping plovers was recorded.

Comment 3:
One commenter noted that observations of piping plovers occurred in the following areas during the international censuses, but that the areas were not included in the designated units in Texas—Rachel Site, east of Whites Point, Nueces Bay, Nueces County, 1991; Tule Lake, Nueces County, 1996; Redfish Bay area, Nueces County, 1991, 1996; Aransas Pass/Port Aransas causeway, Nueces County, 1991, 1996; Aransas National Wildlife Refuge, Calhoun and Aransas Counties, 1991; Aransas Bay/St Charles Bay reefs, Aransas County, 1991; Copano Bay bridge, Aransas County, 1991; Texas Point to McFaddin National Wildlife Refuge, Jefferson County, 1996 and Christmas Bird Counts.

Our Response:
We appreciate receiving the additional information. For the following reasons we did not include these areas in the designation. The Rachel Site, east of Whites Pt. in Nueces County was not surveyed in 1996, nor is there indication of any surveys taken that show piping plovers have been seen at this site. The area has the potential habitat for piping plovers, but there has been no data reported to support designation of critical habitat. Six piping plovers were found in St. Charles Bay in 1991, but the site was not visited in 1996, and we did not include the area in the designation based upon a lack of documentation of consistent use. Although piping plovers were present on the margins of spoil islands at the Aransas National Wildlife Refuge in Calhoun and Aransas Counties in 1991, none were found at either site during the 1996 census, therefore we did not include this area in the designation because we lacked documentation of consistent use. Only one bird was found in both the 1991 and 1996 censuses on the Port Aransas causeway. This area was not included due to these low numbers, plus the fact that much of the area is made up of emergent marsh or mangroves and the primary constituent elements are not present for the piping plover. There are no data to support the presence of piping plover at the Copano Bay bridge site, and there is not much habitat available for the bird except in extreme low tide events. The Texas Pt. to McFaddin National Wildlife Refuge in Jefferson County is a very highly erosive narrow stretch of beach, and it is likely that very few birds would be present. The area of Tule Lake in Nueces County was not censussed in 1991, but 8 birds were found in 1996. This site is highly developed all around, and we determined that the characteristics of this area do not provide for the long-term essential needs of the piping plover. Redfish Bay in Nueces County supported 83 birds in 1991 and 20 birds were seen in 1996. Thus, this site could have been proposed for critical habitat designation. However, in order to include areas in this final rule, we would have to include them in our proposed designation and allow the public an opportunity to comment on their inclusion. As we stated in our response to Comment B.1 above, we may revise the critical habitat designation in the future if sufficient new information supports a change. Furthermore, areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition.

Comment 4:
One commenter requested to see the data upon which Yent Bayou (unit FL-10) was chosen as critical habitat for piping plover because their data do not support such a designation. Yent Bayou is a good site

for many shorebirds, but not for piping plover.

Our Response:
We do not agree with the commenter. The 1996 International Census documented 11 birds; Sprandel
et al.
(1997) documented 12 during the winter of 1993-94; Climo (1998) visited Yent Bayou 21 times between 1993 and 1996 and saw an average of 5.1 piping plovers per visit.

Comment 5:
At a public workshop, the Service failed to present scientific data supporting the inclusion of any portion of Marco Island in a critical habitat designation. There is no peer-reviewed published scientific literature to indicate that Florida or Marco Island beaches are essential to plover recovery.

Our Response:
Although we did not present data at the workshop, designation of unit FL-27 at Marco Island was based on ample documentation that shoals at the north end of the island are regularly used by piping plovers. Individuals with expertise in plover biology wrote the piping plover recovery plans. The revised Atlantic Coast and Great Lakes populations recovery plans were peer-reviewed and they specifically mention Marco Island as essential for conservation of the plover. We have also reviewed available information from the 1991 and 1996 International Censuses (including field reports and notes) and the often-substantial data from local birders and ornithologists. Other publications used to evaluate Florida habitat included a “Winter Shorebird Survey” published by the Florida Game and Fresh Water Fish Commission (Sprandel
et al.
1997), a thesis titled “A landscape-level analysis of piping plover (Charadrius melodus) winter habitat” by Lisa Climo (1998), and a thesis titled “Distribution and other ecological aspects of piping plovers (
Charadrius melodus
) wintering along the Atlantic and Gulf Coasts' by Janice Nicholls (1989). While it would always be desirable to have more data, the critical habitat designations are based on the best scientific data available.

Comment 6:
Marco Island is unlike other beaches proposed to be designated as critical habitat in that it is completely developed.

Our Response:
With the reduction of the FL-27 (Marco Island) unit's size from the proposed rule, much of the highly developed areas are no longer included in the designation. We believe the new boundaries fully cover the areas regularly used by piping plovers and allow for the movement of sand bars and tidal flats. In general, if the primary constituent elements are present and we make a determination that the area is essential for the conservation of the species, the degree of development is irrelevant to critical habitat designations, except to the extent that there might be economic or other impacts that could outweigh the benefits of designating critical habitat. The final Economic Analysis did not identify economic impacts at Marco Island that suggested that this area should be excluded.

Comment 7:
Marco Island is the northernmost of the Ten Thousand Islands. Virtually all of the other islands cannot be developed, so they would make ideal plover habitat without interfering with human use of beaches on Marco Island. Why was Marco Island (unit FL-27) proposed for designation as critical habitat, while other populated areas, such as Naples, Florida, were not nor were isolated beaches, such as at Keewaydin Island or the 50 miles of the Gulf coast south of Marco Island?

Our Response:
The entire coastline of Lee and Collier Counties, including Marco Island and the Ten Thousand Islands, has been surveyed for shorebirds for many years. Naples lacks an inlet like Big Marco Pass, and the Ten Thousand Islands generally lack beaches or mud flats suitable for these birds. We have been provided reports of piping plovers using several sites near Marco Island, but do not have evidence of regular, repeated use that would indicate that they are essential to the conservation of the species. There is ample evidence that the critical habitat units designated in this rule are regularly used by piping plovers, and that other areas, including the coast south of Marco Island, are not.

Comment 8:
Designating Marco Island beachfront as critical habitat will encourage the Service to create conditions favorable to the plover. This will encourage the plover to become established in an artificially created area in contrast to its long-term interest of using areas of lesser human presence.

Our Response:
While the proposed rule included Marco Island's developed beachfront, nearly all of that developed beachfront has been excluded from the final rule based on data received during the comment period showing that piping plovers do not use that part of the beach. With regard to artificially created habitat, designation will not automatically require creation of wintering habitat for piping plovers. However, if it is possible to improve wintering habitat constituent elements as part of a Federal project, we will likely recommend such an action.

Comment 9:
Piping plover habitat at Marco Island consisting of the intertidal area is ephemeral, has undergone significant changes over the last decade as a result of coastal processes and will, consistent with prior history, eventually degrade to the point where foraging habitat for the plover may no longer exist.

Our Response:
Almost all piping plover wintering habitats are dynamic, consisting of beaches and flats that erode, accrete, or change position over time. We have included in our textual unit descriptions, the definitive legal source on unit boundaries, areas to the MLLW to insure that this critical habitat designation adequately captures the shifting primary constituent elements of critical habitat.

Comment 10:
The scientific literature has shown that, on the wintering grounds, piping plovers generally are restricted to sand flats and intertidal areas, not beaches such as on the majority of Marco Island. The proposed critical habitat unit FL-27 at Marco Island includes large areas, mostly beaches, that are not used by wintering piping plovers. The unit should be reduced in size to cover only the sand flats and intertidal areas at Sand Dollar Island and Tigertail Beach at the north end of the island.

Our Response:
The comment refers to the heavily developed portion of Marco Island's beach south of Tigertail Beach, that we now know is used little, if at all, by piping plovers. This area was removed from the FL-27 critical habitat unit.

Comment 11:
One commenter noted that the boundaries of unit FL-27 at Marco Island extend far beyond the boundaries of a Critical Wildlife Area designated by the Florida Fish and Wildlife Conservation Commission to conserve shorebirds, especially breeding ones. Two other commenters provided data on piping plover use of the Marco Island area and aerial photographs.

Our Response:
We used the survey information and aerial photographs in adjusting the boundaries of the FL-27 critical habitat map unit. The southern boundary is now at the southern limit of sandbar formation since 1952. This southern boundary coincides with the southern boundary of the Critical Wildlife Area. The revised northern border of the critical habitat map unit includes isolated sand bars that are forming from just north of Sand Dollar Island to Coconut Island, but excludes Hideway Beach. The landward boundary does not extend inland from the vegetation line because this part of the island appears to be accreting. The seaward boundary extends only far enough to cover areas with sandbars. We believe the new boundaries fully cover the areas regularly used by piping

plovers and for the expected movement of sand bars and tidal flats.

Comment 12:
A few commenters stated that the NC-10 unit needs to reflect the continuity of habitat at this site. The narrative does a good job of describing the site, which includes the sandy shoal islands within the inlet. But the designated areas on the map leave out the sandy shoal islands within the inlet. The map should be drawn as one contiguous unit.

Our Response:
The sandy shoal islands referred to are northeast of the inlet. Trying to include all sandy shoals visible would have made NC-10 extremely large. We believe that NC-10 as described in the unit description is sufficient for conservation of the species in this area. Piping plovers still have protection under the Act whether they are within critical habitat or not.

Comment 13:
What effect will the final designation have on vehicular access to areas that already allow beach driving within critical habitat units?

Our Response:
Only actions involving a Federal agency are regulated by critical habitat. On non-Federal lands, beach driving is not regulated under the Act unless take of a listed animal is involved. Take of a listed animal could be authorized by an incidental take permit (ITP) from the Service. An ITP would be required regardless of critical habitat if take is involved. The issuance of the ITP is a Federal action and the decision to issue the ITP will include an evaluation of the effects to critical habitat. In most cases, measures to avoid and minimize harm would be incorporated in a habitat conservation plan that includes driving.

For lands under Federal control (National Park Service, Air Force, etc.) the managing agency is responsible for ensuring that their actions do not jeopardize the continued existence of, or destroy or adversely modify critical habitat, of listed species. Often times, the managing agency is able to control impacts to listed species from beach driving by redesigning routes and beach access points, and by temporarily closing off specific areas during critical seasons.

Comment 14:
The critical habitat designations for North Carolina, South Carolina, Georgia, and Florida are conservative overall, as fairly discrete sites were selected. However, it seems a more comprehensive approach was taken for the selection of sites along a majority of the Gulf Coast from Alabama to Texas.

Our Response:
Based on comments received, we have refined our critical habitat designation to the maximum extent possible to include only those areas that have documented consistent use by piping plovers and removed all areas that do not have consistent use documentation. This was done in order to ensure consistency in the designation of critical habitat units for all States. The configuration of habitat units differs across the wintering range as a result of basic differences in beach morphology throughout the South Atlantic and Gulf of Mexico.

Comment 15:
It would be more cost-effective for the Service to designate all critical habitat for the Perdido Key and Choctawhatchee beach mice as critical habitat for the piping plover, since those species are already being monitored.

Our Response:
Designating critical habitat for piping plovers based on the existence of critical habitat and monitoring for another listed species does not meet our requirements under 50 CFR 424.12(b). In this case, critical habitat must be based upon a consideration of the physical and biological features essential to the conservation of the piping plover.

Comment 16:
One landowner in Louisiana voiced concern that his/her property was within proposed critical habitat boundaries even though it does not contain piping plover habitat.

Our Response:
We recognize that not all parcels of land within the initially proposed critical habitat designation contain the habitat components essential to piping plover conservation. Since the initial proposal, we have refined our critical habitat maps to exclude, to the maximum extent possible, those specific areas that are not currently believed to contain the constituent elements of piping plover habitat. Areas that do not contain the primary constituent elements, but are included in the textual unit descriptions, are not, by definition, considered critical habitat.

Comment 17:
Coastal land loss in Louisiana is more important than development in affecting critical habitat; the Service should shift its focus to fighting coastal land loss.

Our Response:
We agree that coastal land loss is a major factor affecting piping plover wintering habitat. We represent the Department of the Interior on the Louisiana Coastal Wetlands Conservation and Restoration Task Force. That Task Force oversees planning, evaluation, funding, and implementation of projects funded under the Coastal Wetlands Planning, Protection and Restoration Act. The projects approved to date by the Task Force are expected to protect and restore nearly 95,000 net acres of coastal wetlands in Louisiana. That, however, does not relieve us of our obligation to designate critical habitat for the piping plover.

Comment 18:
The designation of piping plover critical habitat on Grand Isle, Louisiana, could adversely impact the economy by curtailing recreational uses and limiting development of homes and businesses on the island.

Our Response:
We have refined our critical habitat unit description since the initial proposal to include only those areas of Grand Isle that contain the primary constituent elements. On Grand Isle, that habitat is found seaward of the hurricane protection levees. We do not anticipate the development of homes or business in that area. We believe that the effect of normal human presence on piping plovers in their wintering habitat does not have serious consequences at the population level, and we do not expect this designation to affect recreational beach use.

Comment 19:
Uninhabited barrier islands near Grand Isle, Louisiana, provide ideal habitat for piping plovers. The Service should work with local agencies to restore those islands rather than designate critical habitat on Grand Isle.

Our Response:
We agree that some of those islands contain piping plover habitat; however, we are required to designate critical habitat based on the biological or physical constituent elements essential to the conservation of the species. The portions of those islands (including Grand Isle) that met those criteria and where survey data indicated consistent use by piping plovers were included in critical habitat.

Comment 20:
Beach maintenance activities conducted by the Harrison County Development Commission (HCDC), Mississippi, are important in the overall protection of the seawall and U.S. Highway 90, and in maintaining sufficient habitat for piping plovers. HCDC supports the critical habitat designation provided it would not prohibit them from carrying out their mandate to maintain the beach in Harrison County, Mississippi.

Our Response:
We agree that beach maintenance activities are important for the protection of seawalls, highways, and piping plovers. In general, we have found that beach nourishment activities can be timed and designed to minimize effects on piping plovers. We do not expect this designation to affect those beach maintenance activities.

Comment 21:
At TX-12 (adjacent to Naval Air Station), the polygon provided by the Service for the critical habitat area appears to include a small part of the airfield.

Our Response:
It was impossible to map all sites exactly within the time constraints directed by the court to publish the proposed designation. Only those areas within the textual unit descriptions that contain the essential elements necessary to support the piping plover are considered critical habitat.

Comment 22:
We recommend that only land portions of South Bay be included in Texas Unit 1 and that the interior of the Boca Chica peninsula be excluded. Designation of the entire bay area as critical habitat seems excessive.

Our Response:
Only those land portions in South Bay that have the piping plover primary constituent elements are considered critical habitat. If portions of the land masses that have been designated change, either due to natural events such as gradual accretion or erosion or storm events, or man-made causes such as the placement of dredge material, then these changing areas will be considered critical habitat when the primary constituent elements are present. The Boca Chica peninsula is an ever-changing land mass with accretion and erosion rates that cannot be fixed on a map. Therefore, only those areas on the peninsula that contain the primary constituent elements (i.e., support the piping plover for roosting and feeding) will be considered critical habitat.

Comment 23:
We recommend including less of the interior area of South Padre Island (TX unit 3). Known use of these islands by piping plovers appears to be concentrated on the beach areas and exposed flats of both islands. The inclusion of interior areas appears to be inconsistent with the shore areas designated elsewhere along the coast.

Our Response:
There are areas of the interior of South Padre Island where piping plovers have been sighted. We included interior areas that are not sand, mud, or algal flats, because piping plovers use flats for foraging and sparsely vegetated areas for roosting purposes, and these areas are also needed for roosting during storms and strong winds.

Comment 24:
We recommend including less of the interior area of San Jose Island (TX Unit 18). Known use of these islands by piping plovers appears to be concentrated on the beach areas and exposed flats of both islands. The inclusion of interior areas appears to be inconsistent with the shore areas designated elsewhere along the coast.

Our Response:
San Jose Island is composed of a variety of habitats that support the piping plover. Although there are portions that do not contain all of the primary constituent elements needed by the plover, aerial photographs indicate that piping plover habitat is present on San Jose Island. Most of the designated inland areas on San Jose Island (TX 15 and TX18) are relict hurricane washover passes, known to be preferred piping plover habitat. Thus, it is suitable bayside habitat that is somewhat lacking in this portion of the Texas Coast, and we have included it in the designation. See our response to B. 23 above for a discussion on the importance of interior habitat.

Comment 25:
It appears that potential habitat in south and east sides of Galveston Bay has not been included, and should be.

Our Response:
No specific sites were suggested. However, potential piping plover habitat exists on the south and east sides of Galveston Bay, as well as along the shorelines, flats, beaches, and disposal areas throughout Galveston and other Texas bays. Although piping plovers are occasionally seen at many of these sites, we have not designated areas unless they have consistent piping plover use. Five sites on the upper Texas Coast (TX-36, TX-35, TX-34, TX-31, and TX-27) have accounted for well over 90 percent of sightings during the previous three International Piping Plover Winter Censuses and these areas are included in the final designation.

Comment 26:
The piping plovers that occur on the Sunset Lake Park area and other natural resources and public use values are already protected by an existing conservation easement. The Sunset Lake Park is already uniquely protected and preserved as a park under this easement and the park use designation by the City. The Act and Migratory Bird Treaty Act (MBTA) and the Sunset Lake Conservation Easement already provide adequate protection while enabling other compatible park recreational uses. Critical habitat designation will not help focus conservation activities for the species at Sunset Lake anymore than is already available for this public park operated under the existing easement.

Our Response:
The conservation easement for Sunset Lake protects the body of the lake and the improvements to the natural wildlife habitat and sightseeing amendments. The area outside of the lake proper where piping plovers have recently been sighted is in the highway right-of-way adjacent to the lake. Highway reconstruction or improvements may cause direct or indirect impacts to this important habitat. The highway right-of-way is outside of the conservation easement. In addition, the easement does not provide adequate special management for the piping plover which can only be adequately provided by a legally operative plan that addresses the maintenance and improvement of the primary constituent elements important to the species, and manages for the long-term conservation of the species (i.e., implements conservation management strategies and provides for periodic monitoring). Therefore, the existing special management is insufficient to satisfy the requirements of the definition of critical habitat. Additionally, the publicity and heightened awareness of a rare bird's presence should help to support Sunset Lake's Conservation Plan by bringing additional bird-watchers and wildlife enthusiasts to the area, potentially creating an increase in economic value of the Sunset Lake.

It is also important to note that a critical habitat designation has no effect on situations where a Federal agency is not involved. For example, only private actions that involve Federal funding or a Federal permit, and where the Federal agency determines that the proposed action may affect a listed species or its critical habitat require consultation.

The protection of the piping plover under the MBTA does not in any way obviate our duties under the Act with respect to designating critical habitat.

Comment 27:
Nothing in the data indicates that piping plovers were recorded from the vegetated portions of Unit TX-34. Data supporting the designation of vegetated areas within the critical habitat proposal does not exist. We request the Service to reconsider its proposed designation of Unit TX-34.

Our Response:
TX-34 (San Luis Pass flats and contiguous beach) is considered one of five important piping plover aggregation sites on the upper Texas Coast. Past winter surveys have found upwards of 20 wintering birds there. Curt Zonick's (1993) study entitled “Ecology and Conservation of Wintering Piping Plovers and Snowy Plovers,” ranked San Luis Pass second of eight important Texas sites in density and fourth in population (average of 33.7 piping plovers). Sparsely vegetated areas as described in the “Primary Constituent Elements” section of this rule are used by the piping plover as roosting habitat in this unit.

Comment 28:
Based on the habitat assessment performed on October 12, 2000, a review of 1995 and 1997 color aerial photographs, and U.S. Geological Survey (USGS) 7.5 minute quadrangle maps, most of Unit TX-34 does not contain the primary constituent elements essential for the conservation of wintering piping plovers. At least 17 percent (250 ac) of the unit is vegetated and does not provide foraging, roosting,

or resting habitat. Additionally, the majority of the beach within the proposed unit is very narrow and does not provide optimum habitat. The majority of the unit north of Highway 3005 consists of open water and should not be considered a primary constituent element of critical habitat.

Our Response:
See our response to Comment B.27 above. Only those areas within the unit boundary, as described in the regulatory section of this rule, that provide the primary constituent elements for the piping plover are considered critical habitat. The critical habitat boundaries, as described in the regulatory section of this rule, stop landward where densely vegetated habitat, not used by the piping plover, begins and where constituent elements no longer occur.

Comment 29:
The biological information obtained for Unit TX-34 does not provide sufficient information supporting the designation of critical habitat for piping plover. Only 2 percent of the piping plover sightings during the 1991 and 1996 Texas mid-winter surveys were recorded from the San Luis Pass area.

Our Response:
While piping plover counts during winter survey periods have indeed been low, it should be noted that winter censuses have occurred for the most part during extreme low tidal events when both beach and tidal pass counts along the entire upper Texas Coast were very low. Other informal counts at this site, including a 1992 Service field study on file at our Clear Lake Field Office, and Curt Zonick's definitive 1991-93 study (see our response to Comment B.27 above) show clearly that this site is consistently used.

Comment 30:
Since the northern Gulf beaches of Unit TX-34 are very narrow, and since Zonick and Ryan (1996) demonstrated a positive correlation between beach width and piping plover densities, these areas should not be included in the critical habitat proposal.

Our Response:
Only those beaches shown to be consistently used by piping plovers, according to previous wintering bird censuses, are included in the designation.

Comment 31:
A very commendable job has been done in setting aside critical habitat areas along the long coast of Texas, but we note what appears to be the significant omission of any area near the mouth of the Sabine River at the Texas-Louisiana State Line. There should be some appropriate beach and dune area between the Bolivar Peninsula and the Sabine River. While the west bank of the Sabine is marshland, we understand that there is a good area for plovers at or near Sea Rim State Park where, for example, plovers were found in both 1997 and 1998.

Our Response:
While potential habitat exists along this extensive beach area, and while piping plovers are occasionally seen along this stretch of beach, winter counts and other studies have failed to show consistent use here.

Comment 32:
Several commenters requested that Rollover Bay and the surrounding area not be designated as critical habitat for the piping plover. They feel that Rollover Bay is inconsistent with the Service's criteria for critical habitat. Rollover Bay and Pass is a major recreational area for the citizens of Texas and other States to enjoy fishing, boating, crabbing, and wading. Thousands of visitors come to Rollover Bay and Pass annually. The Intracoastal Waterway also crosses Rollover Bay. From time to time, the Army Corps of Engineers dredges sand from the waterway to renourish the beaches of Bolivar Peninsula, in order to keep the waterway open. This is done normally during the winter months. At this time the Texas General Lands Office (TGLO) and Galveston County are planning to dredge sand from Rollover Bay to renourish the beaches at Gilchrist and Caplin. This project will be one of the first major nourishment projects in Texas history. This project is vital to the above two communities. The Bolivar Peninsula Beaches are used during the winter months for citizens to drive and walk along hunting sea shells. This is also vital to the economy of their communities. Eight miles west of Rollover Bay there are 37 miles of beaches, and between High Island and Sabine Pass, thousands of acres of wetlands, and wildlife refuges that can be designated as critical habitat for the piping plover. They would not be disturbed by the public there because there is no highway for the public to get there. Highway 87 has been closed off and on for the past 18 years and completely for the last 11. We urge the Service to designate that area as critical habitat for the wintering piping plovers.

Our Response:
We acknowledge that the Rollover Bay and surrounding area are heavily used recreation areas and currently the site of important beach habitat restoration activities. The 1991 coast wide survey by Texas Parks and Wildlife (Performance Report, Project No. 9.1 Piping Plover and Snowy Plover Winter Habitat Status Survey (Mitchell, Zonick, and Withers)) identified the Rollover Bay flats as holding a moderate winter population of piping plovers, an average of 12 birds (11, 14, and 12) for 3 survey trips. The average of 1990 through 1996 Audubon Christmas Bird Count circles that included the Rollover Bay area was 13 birds. The 1991, 1996, and 2001 International Piping Plover Censuses found very low numbers of birds along the beaches between Bolivar Flats and High Island, but these surveys were done by driving and did not cover the Rollover Bay area. In summary, the Rollover Bay site (TX-37) holds a moderate but consistent wintering piping plover population. It is the only site shown to consistently hold wintering birds along the Texas coast east of Bolivar Flats (TX-36), and should be rated probably the sixth most important upper Texas coast wintering site. It should be noted that past section 7 consultations involving beach restoration in general, and this site in particular, have supported beach restoration activities as improving the quality of piping plover habitat in the long term by preserving and protecting eroding beach habitat. We have not previously found that normal beach recreation activities would significantly affect piping plovers or their habitat in these types of areas, and we do not anticipate that normal recreation would be restricted as a result of this designation.

Comment 33:
Commenters note that some areas of the Gulf coast were not proposed despite the fact that they are not developed and that they have all of the primary constituent elements of critical habitat. For example, the area between Rollover Pass, Texas, and the Louisiana/Texas state line appears to meet the requirements for piping plover wintering habitat. Similarly, the Gulf of Mexico shoreline on the last few miles of the western end of the Ft. Morgan peninsula, the shoreline of the Bon Secour National Wildlife Refuge's Perdue Unit, and other stretches of shoreline along the peninsula appear to meet the requirements for critical habitat. They question why these and similar shoreline areas have not been included in the proposed critical habitat designation. They assert that where census data are inadequate to prove consistent use by the wintering piping plover, the habitat in question contains the physical and biological features essential to the species, and the Service should include the area in the designation of critical habitat.

Our Response:
We, and most ornithologists, assume that areas consistently holding aggregations of this species are essential to the conservation of the piping plovers. Therefore, this designation was primarily based on areas of consistent use that contain one or more of the primary constituent elements. We did not consider it in the

best long-term conservation interests of the piping plover to designate critical habitat where it is only infrequently known to occur. However, should new information become available to support the need to designate critical habitat in other areas, we will consider amending this designation.

Comment 34:
Commenters request that the Service take under consideration the designation of portions of Long Island, Texas, located in Cameron County, Texas, as critical habitat for the piping plover. They feel that their close proximity to the current designated area and the physical and biological features of their island warrant serious consideration.

Our Response:
While potential habitat exists along this extensive area, and while piping plovers are occasionally seen, survey counts and other studies have failed to show consistent populations here and we have not been able to conclude that these areas are essential to the conservation of the species.

Comment 35:
The burden should be placed on the Service to prove to the land owners that their property is piping plover habitat and then negotiate with them the protection of the area. Almost the entire island from Gulf to Bay, including upland areas in the middle of South Padre Island, was designated as critical habitat. That is not fair or correct.

Our Response:
The South Padre Island community encourages protection of wildlife areas. We do not expect any additional burdens placed on landowners, or the need for negotiation for protection of the area. Only private activities with Federal sponsorship that may affect the piping plover or its critical habitat require the Federal agency to consult with us. Although the piping plover's feeding habitat is located on mud, sand, and algal flats, upland areas with sparse vegetation offer the birds roosting habitat which is also important for its survival.

Comment 36:
The spoil island area in Ingleside Cove was not included for consideration. It meets the criteria listed in the
Federal Register
for wintering piping plovers: intertidal beaches and flats, sand and/or mud flats with no or very sparse emergent vegetation. Piping plovers have been sighted in the spoil island area in Ingleside Cove Wildlife Sanctuary for many years, and it is possible that they may winter on the uninhabited spoil islands that border the Cove. Is the area around Ingleside Cove considered designated critical habitat for wintering piping plovers? These plovers have been sighted in Ingleside Cove Wildlife Sanctuary for many years, and commenters have felt that they may winter on the uninhabited spoil islands that abut the Cove.

Our Response:
We have not collected any data that indicate piping plovers use this area, and since the proposed designation was based on known scientific surveys for consistent usage by the birds, we did not propose that area as critical habitat. We will, however, attempt to survey this site in the future.

Comment 37:
The Cayo del Grullo arm of Baffin Bay and the tidal flats along Highway 48 from Highway 100 to where it intersects at Highway 48 were left out of the critical habitat designation. Plovers can be seen feeding near Vattman Creek near Kaufer-Hubert Memorial Park.

Our Response:
Based on surveys performed in these areas, piping plovers do not use the areas consistently, and since the proposed designation was based on consistent use from known scientific surveys, we did not propose these areas for designation.

Comment 38:
One commenter asked if the flats in Alazan Bay are used by piping plovers.

Our Response:
We have not located any data to indicate that piping plovers use this area, and because the proposed designation was based on known scientific surveys for consistent use by the birds, we did not designate this area as critical habitat.

Comment 39:
One commenter asked about Powderhorn Lake in Calhoun County. The Service owns the Whitmire Unit of Aransas National Wildlife Refuge. Those flats are used by lots of shorebirds.

Our Response:
We have not located any data to indicate that piping plovers use this area, and because the proposed designation was based on known scientific surveys for consistent use by the birds, we did not designate this area as critical habitat.

Comment 40:
Many residents of Padre Island oppose making the area of Pt. Aransas down to Pt. Mansfield nesting grounds for this or any bird species.

Our Response:
This rule is issued to designate critical habitat for the wintering population of piping plovers, not nesting piping plovers, as these birds nest in the northern parts of the United States and Canada.

Issue C: National Environmental Policy Act (NEPA) Compliance

Some commenters expressed concern about our alleged failure to comply with NEPA.

Comment 1:
The Service did not adequately comply with the requirements of the National Environmental Policy Act (NEPA). The decision to forego preparation of an Environmental Assessment (EA) and an Environmental Impact Statement (EIS) is based on reasons published in the
Federal Register
in 1983. Much has happened since 1983, and an EIS is required to properly analyze the full range of impacts of the designation, including social and economic effects. Contrary to species listings, where only the status of the species can be considered, critical habitat designation requires consideration of the economic and other relevant impacts of the designation. The commenters believe such considerations should be subject to a formal public process such as NEPA.

Our Response:
The commenter is correct that we determined, for the reasons stated in a
Federal Register
notice published on October 25, 1983 (48 FR 49244), that neither an EA nor an EIS is required for actions taken under section 4(a) of the Act, including designation of critical habitat. We believe that the reasons for this determination remain valid despite the passing of nearly 18 years since our original determination. In addition, the economic impacts of the designation were analyzed in the Final Economic Analysis and considered in making this final determination. Finally, the public involvement and notification requirements under both the Endangered Species Act and Administrative Procedure Act provide ample opportunity for public involvement in the process.

Comment 2:
Council on Environmental Quality Regulations (50 CFR 1502.21) state that no material may be incorporated by reference unless it is reasonably available for inspection by potentially interested parties within the time allowed for comment. The
Federal Register
document (48 FR 49244) referenced in the Service's determination that an EA or EIS is not necessary is not reasonably available.

Our Response:
That document, as well as any other information supporting this designation, is available by following the instructions provided under the
FOR FURTHER INFORMATION CONTACT
section in both the proposed and final rules. We believe this easily-reachable source meets the requirements on the availability of supporting information.

Comment 3:
According to a decision in
Catron County Board of Commissioners
v.
United States Fish and Wildlife Service,
75 F3d 1429 (10th Cir. 1996) and
Oregon Natural Resources Council
v.
Lyns,
882 F2d 1417 (9th Cir. 1989), the Service must prepare an EA on critical habitat

designation. In
Catron County,
the court noted that the Acts' procedures do not displace the NEPA requirements when critical habitat is proposed. The Service should follow
Catron County,
rather than
Douglas County
v.
Babbitt,
48 F.3d 1495 (9th Cir. 1995), because the piping plover wintering critical habitat includes state and private lands, not just Federal land.

Our Response:
The Service acknowledges that the Tenth Circuit Court of Appeals determined in
Catron County
that NEPA requirements apply to designation of critical habitat. However the Ninth Circuit Court of Appeals held in
Douglas County
v.
Babbitt
that NEPA does not apply to the Service's designation of critical habitat because Congress intended that the Act's critical habitat procedures displace the NEPA procedures, NEPA is inapplicable to actions that do not change the physical environment, and the application of both NEPA and the Act's requirements would frustrate both statutes. The Ninth Circuit did not limit its decision to cases involving only Federal lands, holding instead that the public notice provisions and opportunities for comment under the Act's provisions were adequate to serve the NEPA function. Our current practice is to require NEPA compliance for designation of critical habitat only where the critical habitat designation is located within the Tenth Circuit (the states of Colorado, Kansas, Nebraska, New Mexico, Oklahoma, Utah, and Wyoming). That is not the case here. The decision in
Oregon Natural Resources Council
v.
Lyng
dealt with a U.S. Forest Service timber sale and is not applicable to the critical habitat designation issue.

Comment 4:
While there may be some overlap between the requirements of the ESA and NEPA, NEPA requires Federal agencies to look at the short- and long-term effects of their actions, as well as cumulative effects, which the ESA does not. The public and other Federal agencies have raised legitimate concerns that can only be properly analyzed through the NEPA process.

Our Response:
We disagree that NEPA is required for this action. We believe we have fully considered the relevant impacts of designation, as required by the ESA, and have found that these impacts are too insignificant to warrant a detailed analysis under NEPA.

Issue D: Legal Issues

Numerous commenters raised issues pertaining to compliance with the Act or with other laws and regulations (excluding NEPA issues).

Comment 1:
Critical habitat may conflict with the public policy of the State of Texas, that stresses the need for open access to beaches for use by the public. Is this proposal subject to review by the Texas Coastal Management Program? There is potential for conflict between the designation and the Texas Open Beaches Act.

Our Response:
The designation of critical habitat is not a listed activity in the Coastal Management Plan for Texas, and therefore is not subject to consistency review. The Coastal Coordination Council does have the opportunity to look at impacts to federally listed species and their critical habitat when reviewing permit applications and other projects.

Comment 2:
In Texas, a mineral owner has unquestioned right to use as much of the surface as may be necessary to explore for oil, gas, and other minerals. The Federal Government should not pass laws that usurp State laws without providing just compensation to those affected.

Our Response:
As stated in the proposed and final rules, we do not expect critical habitat designation to result in restrictions beyond those that resulted from the species' listing. We, therefore, see no conflict with existing State laws governing mineral exploration.

Comment 3:
The court order does not require the Service to designate wintering habitat for the piping plover, only that critical habitat be designated for the Great Lakes and Great Plains populations.

Our Response:
The commenter is correct in that the court ordered us to designate critical habitat for the Great Lakes and Great Plains populations of piping plover. As discussed throughout this rule, critical habitat includes those areas essential to a species' conservation. Piping plovers spend up to 10 months a year on the wintering grounds. Wintering grounds provide for an essential part of the species' life cycle. Without adequate conservation of wintering habitat, recovery of the species would be limited.

Comment 4:
For the proposed rule, the Service drew broad boundaries and then excluded areas (e.g., buildings) within those areas. The only way to exclude areas from critical habitat is through 4(b)(2) of the Act, that requires an affirmative determination that the benefits of excluding an area outweigh the benefits of including it as critical habitat. No such cost-benefit analysis was provided in the proposal.

Our Response:
Areas designated as critical habitat must meet the legal definition of critical habitat provided in this final rule. One prong of the definition is that an area must contain the physical or biological features essential to the conservation of the species concerned. Human-made structures do not contain such features and therefore do not meet the definition of critical habitat.

Comment 5:
Critical habitat designation will provide opportunities for third parties to sue in order to stop activities like recreational use of the beach. In
Palila
v.
Hawaii Department of Land and Natural Resources,
639 F. 2d. 495 (9th Cir. 1981), the court issued a mandatory injunction to eliminate the State's use of critical habitat in a way that was preventing the use of the habitat by the palila.

Our Response:
The primary authority for third parties to sue to enjoin activities that harm endangered and threatened species is found in the citizen suit provision of the Act, 16 U.S.C. 1540(g)(1), that authorizes anyone to file suit to enjoin violations of the Act. Section 9 of the Act, 16 U.S.C. 1538(a)(1)(B) makes it unlawful for any person to “take” an endangered or threatened species. The Service's regulations define “take” as including actions that are likely to lead to the death or injury of threatened or endangered wildlife.
Palila
v.
Hawaii Department of Land and Natural Resources
was a citizen suit brought to enjoin the State of Hawaii from “taking” an endangered species by allowing goats to destroy the species' habitat. Neither section 7 consultation nor the designation of critical habitat were the basis of the suit. We do not expect that the designation of critical habitat for the wintering population of piping plover will increase the possibility of third party suits to enjoin use of beaches for recreational purposes.

Comment 6:
In
Bennett
v.
Spear,
520 U.S. 154, 169, 117 S.Ct. 1154 (1997), the Supreme Court cautioned that the requirement that the Service use the best scientific information available serves to “ensure that the Act is not implemented haphazardly, on the basis of speculation or surmise.” Although the cited case involved section 7 consultation, the same caution should be exercised in actions under section 4, such as designating over 1,600 miles of shoreline based on inconclusive or unavailable data.

Our Response:
We disagree that the critical habitat designation is based on inconclusive or unavailable data. The Act requires that our decisions be based on the best scientific and commercial information available. All areas chosen have documented consistent use by piping plovers and are limited to areas within the designated units that currently contain the principal

biological and physical features essential to the piping plover. In addition, an estimated 32 pairs remain of the endangered Great Lakes breeding population of piping plovers. Data show that this population uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer 2000). Additional areas are likely used by Great Lakes piping plovers, as most birds have not been accounted for in winter. Therefore, identification of essential habitat should not rule out any sites where piping plovers consistently over-winter until the wintering distribution of the Great Lakes population can be more accurately defined (USFWS 1999). Based on these numbers, as well as other supporting site data, we have concluded that most sites with consistent occurrence of piping plovers should be designated as critical habitat in order to provide for the recovery of the species.

Comment 7:
Commenters called into question our conclusion that the designation will not have significant takings implications under the Fifth Amendment to the U.S. Constitution. They claim the Service needs to address takings implications as per the Supreme Court's rulings in such cases as
Lucas
v.
South Carolina Coastal Commission,
505 U.S. 1003 (1992);
Penn Central Transportation Company
v.
City of New York,
438 U.S. 104 (1978);.
Pennsylvania Coal Company
v.
Mahon
260 U.S. 393 (1922); and
Dolan
v.
City of Tigard,
512 U.S. 374 (1994);
Nollan
v.
California Coastal Commission,
483 U.S. 825 (1987).

Our Response:
As discussed in our responses to economic comments, the economic analysis found that designation of critical habitat would have no significant economic effect above that already imposed by listing. The primary effect of critical habitat designation on private property is to identify areas important for the conservation of the species. In addition, if a Federal action occurs on those private lands, such as issuance of a Clean Water Act section 404 permit, the Federal action agency would be required to consult with us pursuant to section 7 of the Act if that action may affect the piping plover, regardless of whether that habitat is officially designated critical habitat. If such a Federal nexus exists, we will work with the landowner and the appropriate Federal agency to ensure that the landowner's project can be completed without jeopardizing the species or adversely modifying critical habitat. Therefore, we do not believe that designation of critical habitat will cause a property owner to be deprived of such a substantial use of the property as to amount to a Fifth Amendment taking.

Comment 8:
Failure to properly consider the effects of the designation through a Takings Implication Assessment violates Executive Order 12630.

Our Response:
Executive Order 12630 requires that Federal actions that may affect the value or use of private property be accompanied by a takings implication assessment. For the reasons discussed above, we have complied with the requirements of the Executive Order.

Comment 9:
The Regulatory Flexibility Act requires that agencies consider the effects of their actions on small businesses, small non-profit enterprises, and small local governments. If the action is expected to be significant, an initial regulatory flexibility analysis must be published with the proposed rule. If, as the Service did here, the agency certifies that the proposed rulemaking is not expected to be significant, it must publish with the certification a statement providing a factual basis for such a conclusion.

Our Response:
The Regulatory Planning and Review section of the proposed rule (65 FR 41794) discussed our reasons for determining that this action will not have significant economic effects on the small entities listed by the commenter. We believe this constitutes a statement providing the factual basis for our determination.

Issue E: Section 7 Consultation Issues

A number of commenters, particularly Federal agencies, expressed concerns or had questions regarding the effects of designation on the section 7 consultation process.

Comment 1:
An unclear and ambiguous definition of what constitutes adverse modification of critical habitat will result in varying interpretations under section 7. The Service needs to more clearly define adverse modification and allow review by Federal agencies in order to assess the impact of designation on agency programs.

Our Response:
Section 4(b)(8) of the Act requires that we provide, in any proposed or final rule to designate critical habitat, a “* * * brief description and evaluation of those activities * * * which * * * may adversely modify [critical] habitat, or may be modified by such designation.” In the proposed rule, in the section titled “Effects of Critical Habitat Designation” (65 FR 41792), we provided a relatively detailed discussion of the types of programs that have typically undergone section 7 consultation since the species was listed under the Act. We identified the action agencies and programs conducting such actions, and stated our belief that actions likely to adversely modify critical habitat would likely also jeopardize the continued existence of the species. We then provided a discussion of the types of activities that we foresee may adversely modify critical habitat.

We acknowledge the commenter's implication that specific standards should be given to properly advise citizens and Federal agencies as to what programs may be affected by critical habitat designation, but find such specificity impossible given the wide variety of projects and ecological conditions occurring throughout the designation area. In addition, the fact that we expect few or no restrictions to be imposed through the consultation process beyond those that have existed since the species was listed reinforces our belief that our discussion was adequate to meet the requirements of section 4(b)(8) of the Act.

Comment 2:
The Service has represented that no additional impacts will result from critical habitat designation beyond those already in place through the listing of the species and required consultation under section 7 of the Act. This is premised on the argument that the prohibition of jeopardy for listed species is nearly identical to the prohibition against adverse modification of critical habitat. In addition, the commenter cites 64 FR 31871-31872 as an example where the Service has previously acknowledged that the adverse modification standard (for projects affecting critical habitat) is not identical to the jeopardy standard (for projects affecting listed species). Finally, the Service requires that an analysis for a critical habitat consultation be conducted independently from an analysis under the jeopardy standard.

Our Response:
With regard to the commenters' contention that we have previously acknowledged the difference between jeopardy and adverse modification, the citation provided by the commenter is from our
Notice of Intent To Clarify the Role of Habitat in Species Conservation
(June 14, 1999; 64 FR 31871-31874). On cited page 31872, we stated “According to our interpretation of the regulations, by definition, the adverse modification of critical habitat consultation standard is nearly identical to the jeopardy consultation standard.” We also stated “For almost all species, the adverse modification and jeopardy standards are the same * * * It should be noted that while the jeopardy and adverse

modification standards achieve similar results, the context of the analyses differ i.e., jeopardy analyses examine effects to the species while the adverse modification analyses examine effects to the habitat that supports the species. When addressing impacts to occupied habitat, effects to the habitat supporting the species will result in parallel effects to the species. If these effects rise to the level of adversely modifying designated critical habitat, then it is anticipated that these effects would also be sufficient to result in a jeopardy determination. We did acknowledge that in cases where unoccupied habitat is involved there may be additional consultation requirements because of critical habitat designation. However, we consider all designated wintering piping plover critical habitat units to be “occupied” in the sense that, when the primary constituent elements are present during the appropriate season, those features will be used by piping plovers at least occasionally.

Finally, the commenter is correct that our analysis of a project's effects on critical habitat and the analysis for the project's effects on the species are conducted independently (50 CFR 402). However, this has no bearing on our position that the results of the two analyses will essentially be the same under the jeopardy and adverse modification standards. This has been borne out as, after many years of conducting section 7 consultation, there have been no instances in recent times where a project was determined unlikely to jeopardize the continued existence of a species while at the same time deemed likely to destroy or adversely modify its critical habitat.

Comment 3:
The final rule should include a clause that excludes previously authorized Federal project areas from the definition of primary constituent elements. Federal agencies are legally obligated to conduct these actions when an agreement between the agency and non-Federal sponsors exists. These types of projects should be “grandfathered” from the critical habitat designation.

Our Response:
Federal actions that have already undergone section 7 consultation on the effects of the action on piping plovers, and that were determined unlikely to jeopardize the continued existence of the species, must undergo further consultation on the projects' effects to critical habitat only in instances—(1) where the project has not already been completed, and (2) where the Federal agency still has the discretion within its legal authority to modify the project should it be determined likely to adversely modify critical habitat. Where a project has been completed, or where the action agency has no discretion to modify the project, no further consultation would be necessary.

In cases where a previously consulted-upon action could still be modified within the agency's legal authority, and where that project may affect critical habitat, reinitiation of consultation is required (50 CFR 402.16). However, given that such a project would have already received a non-jeopardy biological opinion from us, and since actions unlikely to jeopardize the continued existence of the species would also usually be unlikely to adversely modify critical habitat, the project would likely proceed without additional constraints.

The Service has only had one jeopardy opinion issued for the piping plover wintering population since its listing in 1986. The proposed project was in Texas and was not undertaken for various reasons.

Comment 4:
The Service should work with affected Federal agencies and others whose programs depend upon Federal funding or permits to develop general guidelines that can be used to expedite the consultation process. In this way the effects of designation will be minimized, especially if and when these guidelines are incorporated into project designs.

Our Response:
We agree with this recommendation and are prepared to work with local interests in developing guidelines to guide and expedite the section 7 consultation process. We invite interested agencies and individuals to contact their local Service offices to begin this programmatic consultation approach.

Comment 5:
Commenters have asked how the final designation will affect Federal and non-Federal projects currently under consideration for authorization within critical habitat units.

Our Response:
All landowners, public and private, are responsible for making sure their actions do not result in the unauthorized taking of a listed species, regardless of whether or not the activity occurs within designated critical habitat. Take is defined as “harass, harm, pursue, hunt, shoot, wound, capture, collect, or attempt to engage in any such conduct.” Take is further defined by regulation to include “significant habitat modification or degradation that actually kills or injures wildlife,” which was upheld by the U.S. Supreme Court in
Sweet Home Chapter of Communities for a Great Oregon et al.
v.
Babbitt,
515 U.S. 687 (1995).

All Federal agencies are responsible to ensure that the actions they fund, permit, or carry out do not result in jeopardizing the continued existence of a listed species, regardless of critical habitat designation. “Jeopardize the continued existence of” means to engage in an action that would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02). Because we designated only areas within the geographic range occupied by the piping plover, any activity that would result in an adverse modification of the plover's critical habitat would virtually always also jeopardize the continued existence of the species. Federal agencies must consult pursuant to section 7 of the Act on all activities that will adversely affect the plover both within and outside designated critical habitat.

The consultation process will change only to the extent that Biological Assessments must consider the effect of the project on critical habitat. However, we already need to consider the effect of the project on habitat (in the absence of critical habitat designation) based on the listing of the piping plover. Therefore, we anticipate that the additional workload burden created by critical habitat will not result in different outcomes of the jeopardy and adverse modification standards.

Issue F: Public Involvement/Coordination

Several commenters expressed concerns about the adequacy of the opportunity for public input and other coordination issues.

Comment 1:
All landowners within the area affected by the designation should have been notified.

Our Response:
Given the wide-ranging nature of this designation, the thousands of landowners involved, and the amount of time available to complete the designation due to court order, contacting each individual landowner within the proposed area was not possible. However, we went well beyond the general notification requirements of the Act and the Administrative Procedure Act. This included notification of all State and local governments; mailings to over 898 interested parties; publication of notices in 23 newspapers; issuance of press releases for each public hearing and comment period reopening; and other informational materials. Given that we received over 6,000 letters of comment on the proposal, we believe that we adequately publicized the proposed action. We regret any instances where

interested parties may have been unaware of the proposed designation, but believe these instances are few.

Comment 2:
The Service is attempting to implement critical habitat without giving landowners adequate time to review the information.

Our Response:
The initial public comment period on this action was open from July 6, 2000, through September 5, 2000 (60 days). When the draft economic analysis of the proposal was completed, we extended the comment period until October 30, 2000 (65 FR 52691), and again until November 24, 2000 (65 FR 64414), for a total extension of 80 days. Finally, we reopened the comment period for 7 additional days (66 FR 11134) to accept further public comment on any and all aspects of the proposal and associated economic analysis. The public therefore had 147 days of open comment period on the proposed rule, and 87 days of open comment period on the draft economic analysis. The Act requires that a minimum of 60 days be allowed for comment on a critical habitat proposal. Thus, we exceeded the statutory requirement.

Comment 3:
Some commenters felt that there were too few public hearings held, some questioned the geographic distribution of the hearing sites, and some were concerned that the hearings were poorly publicized or that too short a notice was given.

Our Response:
The Act requires that at least one public hearing be held on a proposed designation of critical habitat if requested within 45 days of publication of a proposed rule. As described previously, in anticipation of the public's interest in the proposed designation we announced in the proposal that we would hold 9 public hearings. We added a tenth public hearing, that we announced in the
Federal Register
and local newspapers (for a complete discussion on the public hearings and our efforts at publicizing them please see the beginning of this “Summary of Comments and Recommendations” section). While we would have preferred to conduct more public hearings, budgetary, workforce, and time constraints prohibited us from doing so. Nonetheless, we far exceeded the requirement that one public hearing be held if requested. Further, given the large geographic distribution of wintering piping plovers and the resulting large area proposed as critical habitat, we chose our hearing locations to spread the sites as evenly as possible throughout the eight affected States. Once requested, four additional public meetings were held after the initial public meetings and hearings.

We disagree that the public hearings were poorly publicized, as we conducted extensive outreach prior to the hearing (see the discussion in F.1). We acknowledge, however, that notification of the Wilmington, North Carolina, and Savannah, Georgia, hearings was less than desired. Regulations (50 CFR 424.16(c)(3)) require 15 days notification prior to public hearings being held, but the Wilmington and Savannah hearings were publicized only 11 and 13 days, respectively, before they were held. While we regret this short notification, since only one hearing is required to meet our statutory obligations under the Act, we did not violate our regulatory requirements.

Finally, it is important to note that a public hearing is one part of the public participation opportunities provided under the Act and Administrative Procedure Act. Written comments receive equal consideration as oral comments, and we far exceeded the public comment period requirements in allowing ample time for submission of written comments. In addition, we were ordered by the court to complete the proposed and final designation in a 10-month period. Thus we could not have extended the comment period any longer and met the court deadline of April 30, 2001.

Comment 4:
The proposed rule does not describe the type and level of coordination that has occurred with State wildlife agencies; their views should have been included in the proposal.

Our Response:
We have long recognized the roles of States in management of listed species and their habitats, and coordinate with States to the extent practicable. The Act at (4)(b)(5)(A)(ii)) requires that States be given notification of, and opportunity to comment on, proposed listing actions. However, we generally coordinate with States during the proposal development process, as we did here.

Our biologists coordinated with the appropriate State agencies from all eight affected States in developing piping plover distribution information along the coast by meeting with them personally and soliciting their input prior to the proposed rule and/or during the comment periods. We incorporated their input and expertise into the proposed and final rules.

Comment 5:
Why were persons with known experience in piping plovers not contacted for information prior to publication of the proposed rule? As a result of the Service's failure to seek local expertise, important areas were left out of the designation.

Our Response:
It is our judgement that information collected pre-proposal was sufficient for a thorough and comprehensive designation to support all three populations of piping plovers when recovered. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibitions, as determined on the basis of the best available information at the time of the action. In developing the proposed and final rules, we coordinated with biologists in the appropriate State agencies from the eight affected States (see response to F.4).

Issue G: Mapping and Primary Constituent Elements

A number of commenters expressed concerns about map quality, the broad extent of the designation, the definition of the primary constituent elements, and other issues surrounding spatial aspects of the designation.

Comment 1:
The critical habitat units are non-specific in that they include lands that do not contain the primary constituent elements. This will result in unnecessary section 7 consultations and add an unnecessary administrative burden to government agencies and private entities included within the mapped boundaries.

Our Response:
While it would be ideal if we could map only areas that currently contain the primary constituent elements, there are three primary reasons why we were unable to do so. First, we are unaware of the existence of sufficient data with which to conduct the precise mapping requested by the commenters. Second, even if the data were available, the large extent of the species' range would render such fine-scale mapping impractical, especially given workforce and time limitations. Most importantly, the coastal areas inhabited by the piping plover are so highly dynamic that any map of currently suitable habitat would rapidly become obsolete.

For the reasons cited above, we mapped the critical habitat boundaries on a relatively coarse scale, and identified the areas within those boundaries that are essential to the species by describing those habitat features (primary constituent elements) essential to the plover's life-history requirements. In this way, critical habitat designation will accommodate the dynamic nature of the habitat, changing through time as the primary constituent elements form in one area while disappearing in another. We

believe that this approach is the only scientifically credible way to ensure that the critical habitat designation is compatible with the species' habitats' naturally ephemeral character. As suggested by one commenter, to ensure that interested persons understand that critical habitat is found only in areas where the primary constituent elements are present, our final critical habitat maps are footnoted to that effect. This is consistent with our regulations at 50 CFR 17.94(c), that indicate the management of critical habitat focuses only on the biological or physical constituent elements within the defined area of critical habitat.

Finally, as stated in both the proposed and final rules, s

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A01-16905. Public record. Not legal advice.