Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT89

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the Pacific coast population of the western snowy plover (

Charadrius alexandrinus nivosus

) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 12,145 acres (ac) (4,921 hectares (ha)) fall within the boundaries of the critical habitat designation. The critical habitat is located within 3 states, and a total of 20 counties. The county breakdown by State is as follows: California—San Diego, Orange, Los Angeles, Ventura, Santa Barbara, San Luis Obispo, Monterey, Santa Cruz, San Mateo, Marin, Mendocino, Humboldt, Del Norte; Oregon—Curry, Coos, Douglas, Lane, Tillamook; and Washington—Pacific, Grays Harbor.

DATES:

This rule becomes effective on October 31, 2005.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours at the Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521 (telephone 707/822-7201). The final rule, economic analysis, and supporting Geographic Information System (GIS) reports will also be available via the Internet at

http://www.fws.gov/pacific/sacramento/default.htm.

FOR FURTHER INFORMATION CONTACT:

Michael Long, Field Supervisor, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521 (telephone 707/822-7201; facsimile 707/822-8411).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, “Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.” Currently, only 473 species or 38 percent of the 1,253 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat.

We address the habitat needs of all 1,253 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We note, however that two courts found our definition of adverse modification to be invalid (March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit,

Sierra Club

v.

U.S. Fish and Wildlife Service et al.

, F.3d 434 and the August 6, 2004, Ninth Circuit judicial opinion,

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service

). In response to these decisions, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result of this consequence, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court-ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judicially imposed deadlines. This situation in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the costs of preparation and publication of the designation, the analysis of the economic effects and the costs of requesting and responding to public comments, and, in some cases, the costs of compliance with National Environmental Policy Act. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and these associated costs directly reduce the scarce funds available for direct and tangible conservation actions.

Background

Background information on the Pacific coast population of the western snowy plover (Pacific Coast WSP) can be found in our final rule listing of the Pacific Coast WSP, published in the

Federal Register

(FR) on March 5, 1993 (58 FR 12864), and our recent proposal of critical habitat for this population, published on December 17, 2004 (69 FR 75608). Additional background information is also available in our previous final designation of critical habitat for the Pacific Coast WSP, published on December 7, 1999 (64 FR 68508).

Previous Federal Actions

For a discussion of previous Federal actions regarding the Pacific Coast WSP, please see our final rule listing the population, published on March 5, 1993 (58 FR 12864), our recent proposal of critical habitat for this population, published on December 17, 2004 (69 FR 75608), and the December 7, 1999, final rule to designate critical habitat for the Pacific coast population of the western snowy plover (64 FR 68508). The December 7, 1999, was remanded and partially vacated by the United States District Court for the District of Oregon on July 2, 2003, for the Service to reconsider the designation and conduct a new analysis of economic impacts (

Coos County Board of County Commissioners et. al.

v.

Department of the Interior et al.

, CV 02-6128, M. Hogan). The court set a deadline of December 1, 2004, for submittal of a new proposed critical habitat designation to the Office of the Federal Register; the proposed rule was published on December 17, 2004 (69 FR 75608). On August 16, 2005, we published in the FR (70 FR 48094) a notice of availability for the draft economic analysis associated with the proposed rule and we reopened the comment period on the proposed rule for 30 days. The court-established deadline for submittal of the final designation is September 20, 2005. This final rule complies with the September 20, 2005, deadline.

In August 2002, we received a petition to delist the Pacific Coast WSP from the Surf Ocean Beach Commission of Lompoc, California. The City of Morro Bay submitted largely the same petition dated May 30, 2003. On March 22, 2004, we published a notice that the petition presented substantial information to indicate that delisting may be warranted (69 FR 13326). We are currently conducting both a 12-month and a 5-year status review of the population under sections 4(b)(3)(A), 4(b)(3)(B) and 4(c)(2) of the Act, in order to issue the finding required by section 4(b)(3)(B) in response to the petitions.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Pacific Coast WSP in the proposed rule published on December 17, 2004 (69 FR 75608). We also contacted the appropriate Federal, State, and local agencies; Tribes; scientific organizations; and other interested parties and invited them to comment on the proposed rule. We received two requests for a public hearing or “workshop” prior to the published deadline. Public meetings were held in Tomales, California, and Crescent City, California, on February 14, 2005, and March 8, 2005, respectively. The initial comment period closed on February 15, 2005. A second comment period for the draft Economic Analysis (DEA) was open from August 16, 2005 to September 15, 2005. All comments and new information received during the two comment periods have been incorporated into this final rule as appropriate.

A total of 1,055 commenters responded during the two comment periods, including 8 Federal agencies, 4 State agencies, 17 local agencies, 21 organizations, and 1005 individuals. Form letters attributed the most comments on the proposed Lake Earl unit (CA 1), and comment cards and a petition accounted for most of the comments regarding the proposal of Dillon Beach (CA 7). Thirty-four commenters submitted two separate sets of comments. During the comment period from December 17, 2004, to February 15, 2005, we received 36 comments directly addressing the proposed critical habitat designation and DEA: 1 from a State agency, 6 from local agencies, and 29 from organizations and individuals.

Most comments did not support designation of critical habitat. The vast majority of comments objected to the designation of Dillon Beach (CA 7) and Lake Earl (CA 1). Five hundred ninety petition signatures and form letters objected to designation of Dillon Beach (CA 7) as critical habitat, and 117 form letters opposed designation of the Lake Earl unit (CA 1). The petition and form letters associated with these 2 units skewed the overall support for designation; representing approximately 67 percent of the comments received. We reviewed all comments for substantive information and new data regarding the listed population and its critical habitat. Comments containing substantive information have been grouped together by issue and are addressed in the following summary. All comments and information have been incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from at least three knowledgeable individuals who have expertise with the species, the geographic region where the species occurs, and/or familiarity with the principles of conservation biology. Of the five individuals contacted, three responded. The peer reviewers generally supported the proposal and provided us with comments which are included in the summary below and incorporated into the final rule, as appropriate. Unless otherwise noted, the peer review commented on our proposed rule published December 17, 2004. Subsequent changes to our proposal reflected in the final rule resulting from comments received during the second comment period did not receive peer review comment.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the western snowy plover, and addressed them in the following summary.

Peer Reviewer Comments

1.

Comment:

A peer reviewer who conducts shorebird research in northern California through an academic institution agreed with the general biology presented in the proposed rule; however, the reviewer felt that describing the Pacific Coast WSP's social system as territorial was misleading. Although true for breeding areas where the densities of nesting plovers is high, the reviewer stated that plovers in many parts of the Pacific Coast WSP's range do not defend a well-defined space (

i.e.

territory). This point may be important when estimating the number of individual breeders that can be supported by an area of particular size.

Our Response:

We agree with the peer reviewer regarding the territorial nature of the Pacific Coast WSP, and his point relative to estimating the number of breeders capable of using a specified area. Our estimates provided in the unit descriptions were based on the best historical information we had from surveys conducted in the late 1970s. It is unknown if those estimates were

based on an already declining population, or a population that was at carrying capacity. In addition, changing conditions in the dynamic habitats preferred by the Pacific Coast WSP likely affects an area's capacity to support breeding plovers.

2.

Comment:

One peer reviewer is investigating the importance of social attraction in relation to the settlement of inexperienced Pacific Coast WSPs (

i.e.

first-time breeders). Preliminary data from Coal Oil Point suggest that social factors play a role in attracting plovers to nest in an area. If true, the management of wintering flocks may be important relative to determining where plovers nest (

e.g.

Coal Oil Point Preserve at U.C. Santa Barbara, California).

Our Response:

We agree with the commenter's preliminary assessment of the Coal Oil Point Preserve study. Our designation of critical habitat recognizes the importance of both wintering and breeding areas.

3.

Comment:

Two of the peer reviewers commented on our proposal to designate critical habitat only in areas currently occupied, or occupied at the time of listing. Specifically, the 1993 listing was based, in part, on the absence of breeding plovers at formerly occupied sites, and the former critical habitat designation in 1999 made use of former and current site (1998) occupancy. Birds absent from formerly occupied sites may be an outcome of low population size, not necessarily because habitat has become unsuitable at a site. The proposed units place a higher emphasis on occupied sites than unoccupied. As the Pacific Coast WSP recovers, it will presumably need areas in which to expand; some of which are currently suitable, but unoccupied.

Our Response:

Although we acknowledge that unoccupied areas may be important for the conservation of many species, the Service determined that no unoccupied units were essential for conservation of this DPS.

4.

Comment:

A peer reviewer suggested that the Eel River gravel bars below (

i.e.

downstream) of Fernbridge be included as designated critical habitat due to their importance as breeding habitat both locally, and in northern California and southern Oregon region.

Our Response:

We acknowledge the importance of the lower gravel bars on the Eel River to plover conservation in northern California; however, our data show that the pre-listing discovery of plovers on the Eel River system were above Fernbridge, and subsequent data from the mid to late 1990s indicates that most plover use was also between Fernbridge and the Van Duzen River. We also acknowledge that plover surveys outside of the area proposed for critical habitat (CA 4D) were inadequate during that time period. Without supporting data, we did not propose the lower portions of the Eel River as critical habitat.

Comments From States

Section 4(i) of the Act states, if a State agency files comments disagreeing with a proposed regulation, and the Service issues a final regulation in conflict with the State's comments, or fails to adopt a regulation petitioned by a State agency, the Secretary shall submit to the State agency a written justification for her failure to adopt regulation consistent with the agency's comments or petition. Comments received from States regarding the proposal to designate critical habitat for the western snowy plover are addressed below.

5.

State Comment:

The California Department of Boating and Waterways commented that designation of critical habitat at Dillon Beach would restrict and prohibit boat launching along the beach and at the Lawson's Landing facility, resulting in a significant fiscal impact.

Our Response:

Critical habitat has been designated at the proposed location since 1999 (64 FR 68508). The draft economic analysis for the proposed critical habitat rule (70 FR 48094) differs from the State's assessment, and concludes there is no significant economic impact at the proposed Dillon Beach unit. However, this unit was excluded from critical habitat designation under section 4(b)(2) of the Act (

see

section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

6.

State Comment:

The Oregon Department of Fish and Wildlife (ODFW) supports the proposed designations in occupied units with the exception of unit boundaries for OR 8A and OR 10A. The State would like those unit boundaries to more closely coincide with the State's draft HCP. Additionally, ODFW proposes designation of Bayocean and Clatsop River Spit as critical habitat.

Our Response:

Where possible, unit boundaries have been adjusted to conform more closely to the management boundaries presented in the State's draft HCP. Bayocean Spit (OR 3) is designated as critical habitat. We believe that ODFW was referring to the Columbia River Spit regarding their comment on the Clatsop River Spit because of the underlying federal ownership at that location. We are not designating the Columbia River Spit (subunit OR 1A in the proposed rule) because it was determined not to be essential to the conservation of the species.

7.

State Comment:

The Oregon Parks and Recreation Department also generally supported designation of the proposed units; however, believes that only the occupied units should be designated to conform to the State's HCP effort.

Our Response:

We have made adjustments to our occupied proposed units to have them more closely aligned with the State's HCP effort.

Comments Related to Previous Federal Actions, the Act, and Implementing Regulations

8.

Comment:

Several commenters noted that the Service has pending action on the 12-month finding for a petition to delist the Pacific Coast WSP as a threatened species.

Our Response:

We are currently in the process of completing our status review for this species. The court's deadline for completing this designation does not permit us to take into account whatever actions, if any, might ultimately result from our status review. If we conclude that the species remains in need of the protections of the Act, the critical habitat designated here will remain in place. If we determine that the species is not in need of the protection of the Act, and ultimately remove it from the list, then this critical habitat designation would be vacated.

9.

Comment:

Several commenters indicated that the Service was violating the National Environmental Policy Act (NEPA) by not preparing an environmental assessment or environmental impact statement on the proposed designation of critical habitat for the Pacific Coast WSP.

Our Response:

It is our position that we do not need to comply with NEPA in connection with designating critical habitat under the Act outside the jurisdictional areas of the Tenth Circuit Court. We published a notice outlining our reasons for this determination in the

Federal Register

on October 25, 1983 (48 FR 49244). This assertion was upheld by the Ninth Circuit Court (

Douglas County

v.

Babbitt

, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).

10.

Comment:

A commenter stated that the Service's contention that several areas could be excluded because “existing management is sufficient to conserve the species” is incorrect. They state that areas where management activities are being implemented to conserve the plover by definition “require special management

considerations or protection.” Otherwise, management activities would not have been implemented (

e.g., Center for Biological Diversity

v.

Norton

, 240 F. Supp 2d 1090 (D. Az. 2003)). They also state that excluding areas under section 4(b)(2) based on the Service's conclusion that the benefits of designating any area as critical habitat is insignificant, is also incorrect. They maintain that critical habitat designation can provide significant protection to a species' habitat, particularly as that habitat pertains to recovery (as opposed to mere survival) (

see Natural Resources Defense Council

v.

Department of Interior

, 113 F. 3d 1121, 1125-1127 (9th Cir. 1997); Conservation Council for

Hawaii

v.

Babbitt

, 2 F. Supp. 2d 1280, 1285-1286 (D. Ha. 1998)).

Our Response:

Rationale for any exemptions and exclusions of particular areas have been included in this document. We believe that the commenter has oversimplified the process by which lands are determined to be included, exempted, or excluded from a critical habitat determination. It is incorrect to state that the Service views the all benefits of designating critical habitat in any particular area as insignificant. Our analyses under section 4(b)(2) of the Act weigh the benefits of exclusion against the benefits of inclusion and determine within any particular area whether it is appropriate to exclude.

11.

Comment:

A commenter disagreed with the statement in the proposed rule, that “In 30 years of implementing the Act the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species * * *” The commenter stated that the proposal includes absolutely no evidence to bolster these assertions, which are inconsistent with recent, controlling judicial decisions, congressional intent, and sound science. They asserted that the fact that the Service's critical habitat decisions are driven by lawsuits and court-ordered deadlines is irrelevant to the Service's mandatory obligation to designate critical habitat for the plover and other listed species. They also assert that the Service's budget requests typically fall short of the amount of money necessary to address the backlog of listing and critical habitat, and that limited resources should not be used as an excuse for not designating critical habitat.

Our Response:

Comment noted. As discussed in the sections “Designation of Critical Habitat Provides Little Additional Protection to Species,” “Role of Critical Habitat in Actual Practice of Administering and Implementing the Act,” and “Procedural and Resource Difficulties in Designating Critical Habitat” and other sections of this and other critical habitat designations, we believe that, in most cases, conservation mechanisms provided through section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative programs with private and public landholders and tribal nations provide greater incentives and conservation benefits than does the designation of critical habitat.

12.

Comment:

A commenter stated that the Service improperly excluded habitat areas that are essential to the conservation of the species and that were included in the 1999 designation because they did not qualify based on either the criteria for breeding sites or the criteria for wintering sites. The Service failed to provide an adequate explanation of these criteria or any justification for the application of the criteria. Any areas included in the 1999 designation that are not included in the proposed designation must be identified and the reasons for the reversal must be explained. They state that an agency changing a prior decision must apply a reasoned analysis.

Our Response:

The Service in issuing this new designation of critical habitat for the West Coast WSP conducted a new evaluation in order to determine what habitat features are essential. Further, new information has become available since the previous designation of critical habitat. We do not believe it is necessary to identify all changes from the previous CH designation; this new designation supercedes the previous designation. We also believe that a reasoned analysis is provided to justify the final designation of critical habitat for this population.

Comments Related to Site-Specific Areas and Unoccupied Areas Identified for Possible Inclusion

13.

Comment:

One commenter stated that the Service's assertion that human activity is the primary threat to plovers is erroneous as animal predators are more responsible for plover kills. The commenter opines that the Service should focus its efforts on predator controls over global land use and development restrictions. Another commenter states that human activity reduces the adverse effects of predators and increases the plover's success.

Our Response:

We agree with the commenter that predators may directly kill and injure more plovers than humans do. However, we don't agree that human activity in an area reduces the adverse effects of predators on plovers. Red foxes, crows, and ravens all may be equally or more effective at preying upon plovers in areas which are subject to human activity; plovers in contact with humans are probably more likely to be flushed from their nests and subject to subsequent predation. We do agree that a reduction of predation is beneficial to plovers; nest exclosures, predator-proof trash receptacles, and both lethal and non-lethal control of predators have been successful in reducing the impacts of predators on plover reproduction and survival. We believe that effective conservation measures for enhancing reproduction and survival can include a combination of actions to reduce both predator and human effects, depending upon the specific threats which need to be addressed.

14.

Comment:

Two commenters recommended that Clatsop Spit (OR-1) be considered occupied because the Necanicum River Spit (OR-1B) had confirmed breeding plovers in 2000 and 2002.

Our Response:

Our definition of occupancy required that the unit be occupied by snowy plovers at the time of listing. The definition of critical habitat in the ESA refers to habitat occupied at the time of listing, and Congress has established different criteria for designating habitat not occupied at the time of listing. Monitoring data from 1991 to 1995 indicate that the area in question was likely unoccupied in 1993 at the time of the plover's listing. Consequently, critical habitat units that were unoccupied during that period, but later occupied, were considered unoccupied for the purposes of this designation. The units described above were not designated as critical habitat because they were not found to be essential to the conservation of the species.

15.

Comment:

One commenter believed that Sand Lake North (OR-5A) should not be included in the critical habitat designation because it was viewed as having little recovery benefit in the draft Oregon coast-wide Habitat Conservation Plan (DHCP) process.

Our Response:

We agree with the commenter. Sand Lake North (OR-5A) has not been designated as critical habitat.

16.

Comment:

Three commenters recommended adjusting the northern boundary of the Siltcoos River Spit unit (OR-8A) to correspond with the edge of the dry sand nesting season restriction that is approximately 0.6 mile (0.96 kilometer) north of the Siltcoos River

mouth. A separate commenter noted that the “breach” just north of the Siltcoos River is a winter site that warrants special management consideration.

Our Response:

We agree with the commenters, and have adjusted the northern boundary of the critical habitat unit to correspond with the 2005 snowy plover management area.

17.

Comment:

One commenter suggested adjusting the southern boundary of the Dunes Overlook/Tahkenitch Creek Spit (OR-8B) critical habitat unit to match the off-highway vehicle closure boundary.

Our Response:

We agree with the commenter and have made this adjustment.

18.

Comment:

One commenter recommended that Tenmile Creek Spit (OR-8D) be reduced in size to no more than 100 feet north and 100 feet south of Tenmile Creek to maintain the current population and no more than 100 yards north and south to accommodate recovery.

Our Response:

We did not modify the critical habitat designation. Reducing the size of this critical habitat unit would reduce protections afforded by the designation to highly mobile chicks during the rearing period, and to nesting and wintering adults.

19.

Comment:

Two commenters suggested the southern boundary of Coos Bay North Spit (OR-9) be moved from

1/3

to

1/2

mile north of the jetty because western snowy plovers do not nest on the beach in that area. Another commenter recommended that we move the northern boundary of OR-9 about

1/4

mile south of the New Carrissa because western snowy plovers do not nest on the beach in that area.

Our Response:

We did not make the requested adjustment. Reducing the size of this critical habitat unit would reduce protections afforded by the designation to highly mobile chicks during the rearing period, and to nesting and wintering adults.

20.

Comment:

Two commenters wanted to exclude the sand road behind the foredune in OR-9 as this is used for recreation and access by Corps of Engineers.

Our Response:

The foredune road at Coos Bay North Spit (OR-9) currently bisects a large habitat restoration (HRA) area that is managed and maintained as a breeding area. The management of the site includes closing the foredune road from 15 March to 15 September each year to reduce human disturbance and to facilitate brood movement from the HRA to the beach. Two alternate routes are available to access the north jetty, both of which avoid the HRA. These alternate routes are suitable to accommodate routine use. Consequently, we did not modify the designation in response to the commenters' suggestion.

21.

Comment:

Three commenters suggested moving the southern boundary of Bandon to Floras Lake unit (OR-10A) about 0.6 miles north since the area immediately west of Floras Lake is managed cooperatively with Curry County. Another commenter wanted to reduce the size of OR-10A to just those sites actually used by breeding snowy plovers with no more than a 100-yard buffer to the north and south of those sites.

Our Response:

We did not make the requested adjustments. Reducing the size of the critical habitat unit reduces protections afforded by the designation to highly mobile chicks during the rearing period, and to nesting and wintering adults as the Pacific Coast WSP expands with recovery.

22.

Comment:

Many commenters (including a number of form letters) suggested removing the proposed Lake Earl unit (CA 1) from the final designation, while other commenters suggested eliminating the northern part, or the entire unit due to economic reasons, its narrowness, steep slope, and unsuitability resulting from dense European beachgrass. Commenters also questioned the value of designating critical habitat at the Lake Earl lagoon, stating that the Service has failed to show that nesting ever occurred at the unit's location.

Our Response:

We agree with those commenters that provided information regarding the unsuitability of the narrow, northern portion of the proposed Lake Earl unit. The boundaries of the Lake Earl unit have been adjusted to remove the narrow, unsuitable portion to the north. The unit has been expanded to the State Park boundary to the south, resulting in an overall reduction in the unit's size. However, we believe that the remainder of the unit is important geographically to other essential habitat areas for the conservation of the Pacific Coast WSP. Lake Earl was designated as critical habitat because of its importance as a wintering area and its potential to support significant breeding populations. Plovers have been observed in the Lake Earl lagoon system during the breeding season in 1991 (PRBO, unpublished data) and nesting at Lake Talawa in 1997 (Page

et al.

1981). We believe the economic impact presented by commenters is overstated because the current importance of the unit to plovers is based primarily on its utility as wintering habitat. Impacts to OHV and other recreational uses are minimal because much of the revised unit is difficult to access in winter due to the open breach of the Lake Earl lagoon.

23.

Comment:

One commenter states that the Arcata Fish and Wildlife Office has failed to meet with the representatives and citizens of Del Norte County to discuss how critical habitat designation may restrict recreational use, reduce land values, and effect the breaching of lakes.

Our Response:

Staff from the Arcata Fish and Wildlife Office provided a presentation on the proposed critical habitat and answered questions at a Del Norte County Board of Supervisors (Board) meeting on March 8, 2005. The Arcata office held an additional public meeting in the Board's chambers on June 9, 2005, to discuss issues with the public regarding critical habitat designation. At both meetings, staff stated that restrictions applied to recreation and other uses within suitable plover habitat are dependant on the managing entity's actions, and are usually implemented in an effort to avoid take of a listed species rather than as a result of critical habitat designation. Service staff also stated that they are not qualified to make economic determinations regarding land values, and advised the Board and meeting participants to review the economic analysis when it became available. Service staff also discussed their January 05, 2005 biological/conference opinion for the 10-year Permit to breach the Lake Earl sandbar. In that biological opinion, no restrictions were imposed as a result of the proposal to designate critical habitat at the breach site (Section 7 consultation 8-14-05-2577).

24.

Comment:

A few commenters believed that the Clam Beach/Little River subunit should not be designated as critical habitat because of impacts to recreational uses and the resultant impacts to the local economy. One commenter mentioned that he had in his possession an informal survey support the impacts attributed to plover management activities.

Our Response:

The draft Economic Analysis does not attribute a significant fiscal impact to designating critical habitat at the Clam Beach/Little River subunit (CA 3A). Additionally, the Humboldt County Public Works Department has stated that visitation is increasing at Clam Beach County Park (within subunit CA 3A), further indicating that visitor use is not significantly affected by plover management or potential critical habitat designation.

25.

Comment:

Many people (including signers of several petitions and form letters) commented on the proposed Dillon Beach (CA 7) unit. Overall, six supported designation of the unit; 14 did not state their position but requested information or public hearings, or suggested foci for the economic assessment; and the rest were opposed to the designation. Of those opposed, all but three indicated concern over loss of access to the beach. Other concerns raised included potential negative impacts to small businesses and local property values due to loss of beach access (94 commenters); and a perception that the proposed unit is not important to WSP conservation since snowy plovers do not nest there (458 commenters). People also disputed the conservation importance of the site, claiming that some other site would be better (39 commenters), and that the plovers are doing well enough at Dillon Beach to make critical habitat designation unnecessary (39 commenters). Four commenters pointed out that the identification of humans and pets as potential threats in the unit description implies an intent to restrict access by humans and pets. One hundred eight commenters requested a public workshop or hearing. Additional points raised included a concern that designation would influence state or local agencies to restrict recreational activities or land-use permits in the area. One commenter also argued that since plovers from outside the listed coastal population over winter on California beaches, there is no way to know whether those at Dillon Beach are from the listed or unlisted population.

Our Response:

This unit was excluded from critical habitat designation under section 4(b)(2) of the Act, primarily based upon the landowner's willingness to enter a partnership ensure conservation (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act). We identified the Dillon Beach site as essential to the conservation of the species because it has the essential habitat features, and because surveys have found higher populations of wintering plovers there than any other coastal site north of San Francisco (Page

in litt.

2003). Adult over wintering survival is essential to the recovery of the population (Nur et al 1999). The surveys have also consistently noted numerous plovers banded as chicks at other coastal beaches, indicating that all or a substantial portion of plovers at the site are from the listed population (Watkins,

in litt.

2005). In response to the requests for a public workshop or hearing, we hosted a well-attended public workshop in the area on February 14th, 2005, where these points were explained.

26.

Comment:

Several people commented on the units proposed for Sonoma, Marin and San Francisco Counties. One comment was on behalf of the Pt. Reyes National Seashore in support of the designation. Another was written at the public workshop held for Dillon Beach, and was generally supportive. A third letter provided information regarding pets at Limantour Spit (CA 9) but was otherwise neutral. The final two letters were neutral but encouraged us to include additional areas; specifically Ocean Beach, San Francisco County, and Salmon Creek and Doran Spit, Sonoma County.

Our Response:

We appreciate the information and support provided, and support the habitat restoration measures outlined by the Pt. Reyes National Seashore. We have decided not to include the suggested additional areas because they do not meet our three criteria from the Methods section: They do not support either sizeable nesting populations or wintering populations, nor do they provide unique habitat or facilitate genetic exchange between otherwise widely separated units. Although we do not consider these areas essential for recovery, we do consider them important, and will continue to review projects in these areas that might affect WSP as required by sections 7 and 10 of the Act.

27.

Comment:

One commenter requested the Service exclude, under section 4(b)(2) of the Act, certain lands within the Oceano Dunes State Vehicular Recreation Area (ODSVRA), from the designation of critical habitat for the western snowy plover for economic and other reasons. The commenter suggested that because no direct public access exists from the south, the structure of the park requires vehicles to drive along the shoreline, through areas proposed for critical habitat, to access areas of the dunes used by off-road vehicles.

Our Response:

In the final rule, we have removed the heavily disturbed open riding area of the ODSVRA from the entrance of the park and extending to the southern exclosure. The remainder of this unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

28.

Comment:

The same commenter stated that economic costs of inclusion (at ODSVRA) are great.

Our Response:

This unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

29.

Comment:

The same commenter pointed out that conservation measures have been implemented at ODSVRA that have resulted in an increase in the number of nesting western snowy plovers, as well as an increase in their fledge rate, at this site.

Our Response:

We agree with the commenter that conservation measures implemented at ODSVRA have been very effective, resulting in increased numbers of nesting western snowy plovers. Consequently, during the 2004 nesting season, ODSVRA supported approximately 4.6 percent of the coastal population of western snowy plovers. Of the 147 nests located at this site in 2004, 95 percent were found within the areas managed for western snowy plovers (State Parks 2004).

30.

Comment:

The same commenter stated that State Parks is currently preparing a Habitat Conservation Plan (HCP) for the San Luis Obispo Coast District including the ODSVRA.

Our Response:

We are aware that State Parks is preparing a draft HCP for this area. It is not our policy to exclude areas from critical habitat based upon management plans which have not yet been made available for our review. However, this unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

31.

Comment:

Two commenters requested exclusion of three parcels (identified as the McDonald site (16.2 acres), the Sterling site (approximately 7 acres), and the Lonestar site (39 acres)) along the coastline of Sand City from critical habitat for the western snowy plover, stating that a 1996 Memorandum of Understanding (1996 MOU) between the California Department of Parks and Recreation, Monterey Peninsula Regional Parks District, City of Sand City, and Sand City Redevelopment Agency established a plan that “* * * would actively manage (western snowy plover)/human interaction, thus maximizing the likelihood of (western snowy plover) recovery * * *.”

Our Response:

We have reviewed the 1996 MOU. At no point does it mention

western snowy plovers or their management. It does state that the signatories “desire” to “(s)upport efforts to restore sand dunes and associated dune vegetation and habitat” and “(c)reate and preserve a north/south habitat corridor for endangered and threatened species”. However, the 1996 MOU does not outline any specific actions to meet the habitat needs of western snowy. However, this unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

32.

Comment:

Two commenters requested exclusion of three parcels (as described above) along the coastline of Sand City from critical habitat for the western snowy plover, stating that a habitat conservation plan (HCP) being developed for the area is likely to assist in the recovery of the species and that designation of critical habitat within the subject parcels could disrupt the HCP planning process.

Our Response:

We are available to assist non-federal landowners in development of HCPs that address listed species, including the western snowy plover. However, the ongoing development of a draft habitat conservation plan does not assure that the plan will be adequate or implemented. This unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

33.

Comment:

A commenter requested exclusion of three parcels (as described above) along the coastline of Sand City from critical habitat for the western snowy plover, stating that there would be little benefit to designating critical habitat within the subject parcels (largely because the commenter believes that there would be no consultation under section 7 of the Act for activities within those parcels).

Our Response:

This unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act). The primary benefit of any critical habitat with regard to activities that require consultation pursuant to section 7 of the Act is to ensure that the activities will not destroy or adversely modify designated critical habitat. We believe that the commenter's conclusion that activities within the subject parcels would not require section 7 consultation(s) is premature. At a minimum, the Service would be required to conduct an internal section 7 consultation before any incidental take permit could be issued through the HCP process. Any other action authorized, funded, or carried out by a Federal agency that may affect a listed species would also require section 7 consultation.

34.

Comment:

A commenter requested exclusion of three parcels along the coastline of Sand City (as described above) from critical habitat for the western snowy plover, stating that designation of critical habitat within the subject parcels would have adverse economic effects on the City of Sand City by preventing future development activities within the subject parcels.

Our Response:

This unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

35.

Comment:

A commenter requested exclusion of three parcels (as described above) along the coastline of Sand City from critical habitat for the western snowy plover, stating that because the subject parcels account for only approximately 20 percent of the Sand City coastline and represent marginal habitat, that their development would not impede recovery of the species.

Our Response:

The majority of documented western snowy plover nests along the Sand City coastline have occurred within the three subject parcels (Noda

in litt.

2003). In addition to breeding habitat, Sand City beaches have provided habitat for wintering western snowy plovers (Noda

in litt.

2003). However, this unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

36.

Comment:

One commenter requested the Service minimize the areas of the Nipomo Dunes and Morro Bay designated as critical habitat for the “coastal plover”.

Our Response:

This unit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

37.

Comment:

One commenter suggested that two beaches in Santa Barbara County (East Beach and the breakwater Sand Spit in Santa Barbara Harbor) should be included in the final rule. The commenter also stated that these two sites were included in the 1999 final rule, but were excluded in our proposed rule without explanation. The exclusion of these two beaches without proper documentation and analysis is unsupported.

Our Response:

Our current designation of critical habitat is different from the 1999 rule in two primary ways. In this designation, we utilized a different methodology for determining essential areas, and we relied upon additional scientific information which was not available in 1999. Thus, this rule, while similar in many respects to that in 1999, is a new designation, and does not designate the same areas.

38.

Comment:

Several commenters noted a discrepancy between the description of subunit CA 19A and the map for this subunit. The subunit is described as extending 6.1 mi (9.8 km) along the coast from the north jetty of the Channel Islands harbor. However the map of this subunit (Map 54) depicts it as starting about 1 mile north of the jetty. The commenters noted that the area immediately north of the jetty is known as Hollywood Beach and is an “active critical habitat area of the western snowy plover.”

Our Response:

Although the description of subunit CA 19A in the proposed rule included the Hollywood Beach area, an error was made during the preparation of the maps and Hollywood Beach was inadvertently not shown. We have now corrected that error, and Hollywood Beach is included in this final designation for the plover.

39.

Comment:

A commenter pointed out that, although the 2004 proposed rule states that all 61 ac proposed for designation at unit CA 13 (Pt. Sur Beach) are privately owned, a portion of the 61 ac is actually state lands. If the intent of the critical habitat designation is only to include private lands, then the commenter objects because the habitat features essential for the conservation of the plover are equally present in both the public and private portions of the unit and both public and private lands should be included.

Our Response:

A table in the proposed rule (69 FR 75608) erroneously listed unit CA 13 as being private land. In actuality, unit CA 13 is entirely made up of State-owned land as stated in the text description for the unit.

40.

Comment:

A commenter stated that one of the functions of the jetty at the south end of subunit CA 19A is to act as a sand trap. Every 2 years they are required to dredge sand from this location and transport it farther south along to coast where there is erosion occurring. The commenter further noted that the biannual dredging has been ongoing for 40 years, and that the discontinuation of dredging could result in the creation of extremely hazardous conditions to vessels in the area. The commenter urged the Service to remove this sand trap area from the designation.

Our Response:

Hollywood Beach, the area north of the jetty to which the commenter is referring is both a nesting and a wintering area for snowy plovers and has been determined to contain features essential to the conservation of the species. Therefore, we have included it in this final designation. We also point out that the designation of critical habitat does not prevent the sand dredging from occurring. If the action is permitted or authorized by a Federal agency, the Service would likely be involved with or without the critical habitat designation through a section 7 consultation with the Federal agency. We will continue to work with dredging operators to ensure endangered species conservation is made compatible with the safety of all vessels.

41.

Comment:

A commenter requested that two areas within or near the city of Morro Bay not be included in the designation. The commenter characterized the area south of Highway 41/Atascadero Road to Morro Bay Rock in subunit CA 15B as being heavily used for recreation and including parking lots, restrooms, lifeguard towers. The commenter also stated that we were in error when we said that subunit 15B is near the city of Morro Bay and is managed entirely by the California Department of Parks and Recreation. The area south of Atascadero Road is within the city limits and is owned and managed by the city. Similarly, the commenter stated we were in error when we said that the area south of Atascadero Road is an important breeding area supporting up to 40 nests each year when in fact there has never been any documentation of nesting or breeding in this area.

The second area the commenter requested not be included in subunit CA 15B extends north from Azure Street to the north end of the subunit. The commenter characterizes this area as being heavily populated with hundreds of homes and a State campground with thousands of visitors per year. The commenter further noted that few nests have been observed in this area and only in some years does nesting occur at all in the area.

Our Response:

When we stated in the proposed rule (69 FR 75608) that subunit 15B was an important breeding area supporting up to 40 nests each year, we were discussing the entire subunit, not just the area south of Atascadero Road. However, as no nests have been documented for the area south of Atascadero Road and this area is highly disturbed, we have removed it from the designation as not being essential to the conservation of the plover. The remainder of this subunit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

42.

Comment:

A commenter requested that Hueneme Beach Park in subunit CA 19B not be included in the designation. The commenter characterized the park as a highly disturbed and heavily used recreational resource that is not appropriate for critical habitat. The park includes a fishing pier, picnic tables, barbeques, restaurant, parking lots, dog walk, and volleyball courts, and is also the location of biennial sand replenishment activities.

Our Response:

Based on the information provided by the commenter and because there are no nesting plovers in the area, we have removed Hueneme Beach Park from subunit CA 19B because it is highly disturbed and not essential to the conservation of the western snowy plover. However, the remainder of subunit CA 19B has been designated as critical habitat.

43.

Comment:

A commenter requested that the Santa Barbara Harbor from Pt. Castillo to Salinas Creek and including the sand spit at the end of the breakwater be included in the critical habitat designation as it was in 1999.

Our Response:

Although the area to which the commenter is referring was included in the 1999 designation (64 FR 68508) as CA-14 unit 2—Point Castillo/Santa Barbara Harbor Beach, we used a different methodology and set of criteria to determine critical habitat in the 2004 proposal (69 FR 75608). The Point Castillo/Santa Barbara Harbor Beach area was not included in the 2004 proposal because it did not meet the criteria for critical habitat established for the designation.

44.

Comment:

A commenter believes that the expansion of critical habitat in CA-18, Devereux Beach would be an ineffective form of conservation for the plover. As stated in the proposed designation (69 FR 75608), “In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources.” Furthermore, research conducted by Lafferty (2001) at Coal Oil Point indicates that expansion of the fenced area on the beach did not provide comparable gains in plover protection.

Our Response:

This unit does not represent an expansion. This area was included in the original 1999 critical habitat designation for the plover (64 FR 68508) as CA-14, unit 1—Devereux Beach. In the original designation, the unit contained approximately 57 ac, while in the 2004 proposed rule, the unit is only 36 ac. The referenced fenced area is for the protection of nesting plovers. However, nesting plovers may forage over the entire beach and plovers also winter over the entire beach. Therefore, we have designated Devereux Beach as critical habitat for the plover, not just the area that is fenced to protect nesting plovers.

45.

Comment:

Another commenter noted that the California Coastal Commission has banned dogs from Devereux Beach (unit CA 18) where critical habitat has been designated and that the area designated at Devereux Beach should be reduced.

Our Response:

Devereux Beach is both a plover breeding area and a wintering area, with as many as 360 wintering birds. Unit CA 18 also contains the physical and biological features essential to the conservation of the species. Therefore, we have designated 36 ac in this area as critical habitat for the plover, which is reduced from the approximately 57 ac designated in this area in 1999 (64 FR 68508).

46.

Comment:

Los Padres National Forest concurred with the decision of the Service not to include in the critical habitat designation location CA-69 (San Carpoforo Beach) from the draft recovery plan for the western snowy plover. San Carpoforo Beach is a very small beach that is occupied mainly by a few (about 35) wintering plovers.

Our Response:

We concur. San Carpoforo Beach was not included in the critical habitat designation because it did not meet the criteria we set forth in this final designation.

47.

Comment:

One commenter applauded the Service for designating critical habitat for the plover in San Luis Obispo, Santa Barbara, and Ventura Counties, but also stated that all areas occupied by plovers should be designated.

Our Response:

The Act states, at section 3(5)(C), that except in particular circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. We have designated habitat that contain sufficient features essential for the conservation of the species.

48.

Comment:

One commenter asked that Morro Bay's sandspit and beach [CA 15C] not be designated.

Our Response:

This subunit was excluded from critical habitat designation under section 4(b)(2) of the Act based upon its high economic costs (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

49.

Comment:

One commenter believed that San Buenaventura Beach should be included as it was in the 1999 designation.

Our Response:

Although the area to which the commenter is referring was included in the 1999 designation, we used a different methodology and set of criteria to determine critical habitat in the 2004 proposal (69 FR 75608). The San Buenaventura Beach area was not included because it did not meet the criteria for critical habitat established for the designation.

50.

Comment:

Two commenters stated that, since the criteria used to determine critical habitat for the western snowy plover are improper, those areas in San Luis Obispo, Santa Barbara, and Ventura Counties that were included in the 1999 designation but excluded in the 2004 proposal (Arroyo Hondo, Arroyo Laguna, Torro Creek, Jalama, Point Castillo/Santa Barbara Harbor, Carpinteria Beach, and San Buenaventura) should be included as critical habitat. These beaches should be included in the final designation as they are utilized by the species for wintering, they contain the identified primary constituent elements that may require special management, and the sites are essential to the survival and recovery of the plover.

Our Response:

Although the areas to which the commenters are referring were included in the 1999 designation, we used a different methodology and set of criteria to determine critical habitat in the 2004 proposal (69 FR 75608). These areas were not included in the 2004 proposal because they did not meet the criteria for critical habitat established for the designation.

51.

Comment:

A commenter stated that the Guadalupe/Nipomo Dunes National Wildlife Refuge should be included in the final designation and that the Service's exclusion of this area because it is subject to a “plover management plan” that has undergone section 7 review was improper. No information was provided on the management plan to determine whether or not the plan provides a conservation benefit or otherwise meets the Service's criteria for adequate plans. In addition, the fact that the plan has undergone section 7 consultation does not demonstrate that the plan provides any benefits for the plover. The Service also failed to adequately balance the benefits of inclusion vs. the benefits of inclusion for the area when it was excluded.

Our Response:

We have now included more detailed information on the Guadalupe/Nipomo Dunes National Wildlife Refuge plover management plan in this final rule. The refuges meet our criteria for management plans. See the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion of our exclusion of this refuge.

52.

Comment:

One commenter noted two areas in Orange County that were not proposed for critical habitat but are used by wintering plovers and constitute high quality habitat. One area is Surfside Beach in northern Orange County and the other is Newport Beach between Balboa Pier and the entrance to Newport Bay.

Our Response:

Snowy Plovers were not discovered using these sites until the fall of 2004. We recognize that both locations support high quality habitat with large concentrations of snowy plovers, and have the potential to support breeding birds. However, the Service did not determine these areas to be essential to the conservation of the DPS and they were not designated as critical habitat. We are working with local jurisdictions and managers to reduce the threats to snowy plovers at these sites.

53.

Comment:

Two commenters stated that the Subunit CA 21D, Hermosa State Beach, is located in a heavily populated urban environment and should not be considered critical habitat. They also expressed concern over future restrictions on beach use.

Our Response:

Hermosa Beach annually supports a relatively large wintering flock of snowy plovers (69 FR 75627). This flock persists despite the heavy recreational use of the beach area. Nearly all beaches in southern California are subject to heavy recreational use. To restrict snowy plovers to beaches without heavy recreational use would limit the plovers to few if any beaches in southern California.

54.

Comment:

Some commenters questioned the value of designating critical habitat at the Lake Earl lagoon (CA 1), and state that the Service failed to show that nesting ever occurred at the unit's location.

Our Response:

Plovers were observed during the breeding season west of the Lake Earl lagoon during a breeding season window survey in 1991 (PRBO unpublished data). No plovers were observed during the subsequent survey in 1995 (an incomplete survey year, PRBO unpublished data). Page, et al., 1981, states that nesting plovers were found on the beach at Lake Talawa (

i.e.

western most portion of the Lake Earl lagoon system) during May, 1997. Yocom and Harris suspected breeding at the same location in 1975, but were unable to confirm it. Plovers currently overwinter within the designated CA 1 unit.

55.

Comment:

One commenter states that the Arcata Fish and Wildlife Office has failed to meet with the County of Del Norte and private citizens to comment on restricted recreational use, loss in land values, and effects on the “Federal project” of breaching lakes.

Our Response:

Staff from the Arcata Fish and Wildlife Office provided a presentation on the proposed critical habitat and answered questions at a Del Norte County Board of Supervisors (Board) meeting on March 8, 2005, at the Board's request. The Arcata office held an additional public meeting in the Board's chambers on June 9, 2005, to discuss issues with the public regarding critical habitat designation. At both meetings, staff stated that restrictions applied to recreation and other uses within suitable plover habitat are dependant on the managing entity's actions, and are usually implemented in an effort to avoid take of a listed species rather than as a result of critical habitat designation. Staff also stated that they are not qualified to make economic determinations regarding land values, and further stated that is why the Service contracts out the economic analysis for designation. With regards to the “Federal Project” of breaching the Lake Earl lagoon system, Service staff referenced the recently completed biological/conference opinion (January 05, 2005) for the 10-year Permit to breach the Lake Earl sandbar. No mitigation, protective measures, or restrictions on the proposed action, or any activity, were imposed as a result of the proposal to designate critical habitat at the breach site (Section 7 consultation 8-14-05-2577). If not for the Federal action (

i.e.

mechanical breaching), the lagoon would breach on its own at a higher water level.

56.

Comment:

One commenter stated that the Service's assertion that human activity is the primary threat to plovers is erroneous as animal predators are more responsible for plover kills. The commenter opines that the Service should focus its efforts on predator controls over global land use and development restrictions. Another commenter states that human activity lowers the adverse effects of predators, and increases the plover's success.

Our Response:

We agree with the commenter that predators are likely responsible for more direct kills and injuries; however, humans have contributed to the impacts of predators. Nest and chick predators have been introduced into areas where they are not native, and impact the reproductive success and survival of plovers (

e.g.

red fox). When humans and their pet flush nesting plovers on sandy beaches, the plovers leave tracks in the sand as they move off and on to the nest. Corvids use the plover tracks to locate nests, increasing the opportunities for successful nest predation. Human development and trash in and adjacent to suitable plover habitat has increased the incidence of some plover predators (ravens and crows). Additionally, human activities, such as development and beach raking, have rendered some beach sections totally unusable to breeding plovers, reducing the number of areas suitable for nesting. The areas with the highest predation rates usually do have some predator management associated with them. Nest exclosures, predator-proof trash receptacles, aversions conditioning, and both lethal and non-lethal control of predators has been successful in reducing the impacts of predators on plover reproduction and survival. We believe that these actions implemented to reduce the impact of predators on plover nesting, and other management measures designed to reduce the potential impacts of humans (e.g. use of symbolic fencing, public education, and enforcement of regulations), are responsible for the increases in plover breeding success documented at many locations.

Comments Related to Military Lands

57.

Comment:

A commenter stated Vandenberg Air Force Base should not be excluded unless there is a final integrated natural resources management plan.

Our Response:

All lands essential to the conservation of the western snowy plover at Vandenberg have been excluded under section 4(b)(2) of the Act from the final designation of critical habitat because of alternative protective measures provided by the Air Force and because of the national security issues the Air Force stated in their February 7, 2005, comment letter (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion).

58.

Comment:

The Air Force submitted several comments relating to the exclusion of Vandenberg Air Force Base (Vandenberg) from critical habitat. They state that: (1) The Air Force has worked with the Service to revise the INRMP (which is expected to be completed in 2005), and that the INRMP contains special management activities that adequately address the conservation of suitable habitat important to long-term protection and recovery of the western snowy plover; (2) the western snowy plover and its habitat are already being protected at Vandenberg by the Air Force's Beach Management Plan; (3) all the proposed critical habitat areas on Vandenberg are occupied throughout the year and subject to consultation pursuant to section 7 of the Act; (4) the INRMP and Beach Management Plan together provide a greater level of protection for the western snowy plover and its habitat than a designation of critical habitat would provide; and (5) that the designation of critical habitat at Vandenberg would interfere with its mission execution and military training critical to national security.

Our Response:

All lands essential to the conservation of the western snowy plover at Vandenberg have been excluded under section 4(b)(2) of the Act from the final designation of critical habitat because of alternative protective measures provided by the Air Force and because of the national security issues the Air Force discussed in their February 7, 2005, comment letter (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion).

59.

Comment:

The Navy commented that Naval Base Ventura County has a finalized INRMP that contains management actions that benefit the western snowy plover and its habitat. Naval Base Ventura County also has a biological opinion from the Service (issued on June 6, 2001) for all routine operations, a major part of which covers the western snowy plover. The INRMP incorporates all management actions being carried out by Naval Base Ventura County in response to the biological opinion.

Our Response:

We have reviewed Naval Base Ventura County's INRMP and biological opinion. The Secretary determined, in writing, that Naval Base Ventura County's INRMP provides a benefit to the western snowy plover and therefore, consistent with Public Law 108-136 (Nov. 2003): Nat. Defense Authorization Act for FY04 and Section 4(a)(3) of the Act, the Department of Defense's Naval Base Ventura County is exempt from critical habitat based on the adequacy of their legally operative INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion).

60.

Comment:

The U.S. Navy requested that their facilities around San Diego Bay that were included in the proposed critical habitat, including NAS North Island, NAB Coronado, Naval Radio Receiving Facility, and NOLF Imperial Beach, be excluded from the final critical habitat as they are covered by an INRMP that provides a benefit to the species.

Our Response:

The Secretary has determined the San Diego Bay Navy INRMP provides a benefit for the western snowy plover; accordingly, the Navy's San Diego Bay facilities are exempt from critical habitat designation pursuant to section 4(a)(3) of the Act, based on the adequacy of their legally operative INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion).

61.

Comment:

Marine Corps Base, Camp Pendleton commented that snowy plover habitat on the base receives substantial benefit from management actions directed through their Integrated Natural Resource Management Plan (INRMP). Therefore, all lands on Camp Pendleton should be excluded from the Final Rule, per Section 4(a)(3) of the Act, as amended by the 2004 Defense Authorization Act.

Our Response:

Camp Pendleton actively manages snowy plover nesting and wintering habitat and this management has contributed to an increasing snowy plover population on the base over the past several years. The INRMP reinforces management actions stipulated under previous Section 7 consultations with the Service. The Secretary has determined the San Diego Bay Navy INRMP provides a benefit for the western snowy plover; accordingly, the Navy's San Diego Bay facilities are exempt from critical habitat designation pursuant to section 4(a)(3) of the Act, based on the adequacy of their legally operative INRMP (see the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act section below for a detailed discussion). However, we note that not all lands within Camp Pendleton are

covered by the INRMP subject to Marine Corps management. Unit CA 24 is located at the far north end of the base on land leased to the California Department of Parks and Recreation, and is therefore actively managed by State Parks and not by the Base. The San Onofre State Beach within unit CA 24 is a recreational beach utilized by thousands of people throughout the year. Despite this heavy use, the beach is annually used by a substantial wintering flock of snowy plovers (69 FR 75628). As described in the proposed rule, this flock and the habitat that it utilizes are subject to disturbance due to the heavy recreational use of the area, which also likely precludes the use of the beach for breeding. With special management, the habitat in the proposed unit has a high potential to be managed and restored to a point where it is used by plovers for both breeding and wintering. Accordingly, we consider this beach to meet the definition of critical habitat and it is included in this designation.

62.

Comment:

Camp Pendleton also commented that the proposed critical habitat potentially impacts their military mission due to constraints on lands that have value for military training and operations. They particularly objected to the designation of critical habitat on Green Beach, an amphibious landing and training beach.

Our Response:

We have refined our mapping for Unit CA 24 to more accurately define the essential snowy plover habitat between San Onofre Creek and San Mateo Creek. The majority of snowy plover use in this area currently is located in a less visited portion of the beach closer to the mid-point between the two creek mouths. The result of this refined mapping is a reduction in the length of the proposed unit at both ends, removing critical habitat from Green Beach as well as beach areas to the north of San Mateo Creek mouth.

Comments Related to HCPs, NCCP Program, and Section 7

63.

Comment:

Several commenters stated that the Pacific Coast WSP already had adequate protections under Section 7 of the Act, and therefore did not need to provide additional protection afforded by designating critical habitat.

Our Response:

A critical habitat designation means that Federal agencies are required to consult with the Service on the impacts of actions they undertake, fund, or permit on designated critical habitat. While in many cases, these requirements may not provide substantial additional protection for most species, they do direct the Service to consider specifically whether a proposed action will affect the functionality of essential habitat to serve its intended conservation role for a species rather than to focus exclusively on whether the action is likely to jeopardize the species' continued existence. We agree, however, that even absent a critical habitat designation, Federal agencies are still required to consult on the impacts of their activities on listed species and their habitat.

Comments Related to Economic Impacts and Analysis; Other Relevant Impacts

64.

Comment:

Several commenters stated that the DEA inappropriately ignores benefits although it is possible to quantify the economic benefits associated with species protection. One commenter offers, for example, that contingent valuation studies have demonstrated existence value of non-human species. Another commenter states that the DEA should consider “non-use” welfare benefits, such as existence, option, stewardship, and bequest values, associated with protecting plover habitat.

Our Response:

In the context of a critical habitat designation, the primary purpose of the rulemaking (

i.e.

, the direct benefit) is to designate areas in need of special management that contain the features that are essential to the conservation of listed species.

The designation of critical habitat may result in two distinct categories of benefits to society: (1) Use; and (2) non-use benefits. Use benefits are simply the social benefits that accrue from the physical use of a resource. Visiting critical habitat to see endangered species in their natural habitat would be a primary example. Non-use benefits, in contrast, represent welfare gains from “just knowing” that a particular listed species' natural habitat is being specially managed for the survival and recovery of that species. Both use and non-use benefits may occur unaccompanied by any market transactions.

A primary reason for conducting this analysis is to provide information regarding the economic impacts associated with a proposed critical habitat designation. Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Economic impacts can be both positive and negative and by definition, are observable through market transactions.

Where data are available, this analysis attempts to recognize and measure the net economic impact of the proposed designation. For example, if the fencing of a species' habitat to restrict motor vehicles results in an increase in the number of individuals visiting the site for wildlife viewing, then the analysis would recognize the potential for a positive economic impact and attempt to quantify the effect (

e.g.

, impacts that would be associated with an increase in tourism spending by wildlife viewers). In this particular instance, however, the economic analysis did not identify any credible estimates or measures of positive economic impacts that could offset some of the negative economic impacts analyzed earlier in this analysis.

Under Executive Order 12866, OMB directs Federal agencies to provide an assessment of both the social costs and benefits of proposed regulatory actions. OMB's Circular A-4 distinguishes two types of economic benefits: Direct benefits and ancillary benefits. Ancillary benefits are defined as favorable impacts of a rulemaking that are typically unrelated, or secondary, to the statutory purpose of the rulemaking. In the context of critical habitat, the primary purpose of the rulemaking (

i.e.

, the direct benefit) is the potential to enhance conservation of the species. The published economics literature has documented that social welfare benefits can result from the conservation and recovery of endangered and threatened species. In its guidance for implementing Executive Order 12866, OMB acknowledges that it may not be feasible to monetize, or even quantify, the benefits of environmental regulations due to either an absence of defensible, relevant studies or a lack of resources on the implementing agency's part to conduct new research. Rather than rely on economic measures, the Service believes that the direct benefits of the proposed rule are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking.

We have accordingly considered, in evaluating the benefits of excluding versus including specific area, the biological benefits that may occur to a species from designation (see below, Exclusions Under section 4(b)(2) of the Act), but these biological benefits are not addressed in the economic analysis.

64a.

Comment:

Many commenters state that the DEA fails to distinguish costs specific to critical habitat designation from the costs of ESA listing and other co-extensive costs. One

comment states that critical habitat will not increase management as plover management is already in place.

Our Response:

In conducting economic analyses, we are guided by the 10th Circuit Court of Appeal's ruling in the New Mexico Cattle Growers Association case (248 F.3d at 1285), which directed us to consider all impacts, “regardless of whether those impacts are attributable co-extensively to other causes.” As explained in the analysis, due to possible overlapping regulatory schemes and other reasons, there are also some elements of the analysis that may overstate some costs.

65.

Comment:

Another comment stated that the DEA should not include past costs as these costs are sunk costs that can not be recouped.

Our Response:

As part of our economic analysis, we have estimated the past costs associated with the listing of the species prior to designating critical habitat. However, we have only used the prospective estimated costs for excluding certain units from this final critical habitat designation pursuant to section 4(b)(2) of the Act (see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act below).

66.

Comment:

Several commenters state that the DEA should address “other relevant impacts” in addition to the economic impacts.

Our Response:

The Service believes the words “other relevant impacts” refer to policy issues, such as, for example fostering conservation partnerships and relations with tribal governments. These policy considerations are inappropriate for review in an economic analysis. If the Service considers excluding areas for these reasons, it conducts a separate analysis under section 4(b)(2) of the Act to balance the benefits of excluding these areas with the benefits of including them.

67.

Comment:

One commenter states that the DEA should examine the costs of not designating critical habitat and the impacts of the plover being delisted. For example, it should consider impacts of legal challenges, relisting, and the need to fund management efforts for a species further from recovery than when originally listed.

Our Response:

As part of our economic analysis, we estimate the costs associated with those economic activities believed to most likely threaten the plover and its habitat within the boundaries of the proposed designation. Due to cost and time constraints, it is not possible for us to estimate costs associated with different listing procedures.

68.

Comment:

One commenter states that, in the DEA, the area that will experience the greatest future economic impacts from plover conservation efforts is Unit CA-12C, including the area of Sand City. The cost in this area is disproportionate to the benefit of inclusion and the area should be excluded from the final designation. The comment further states that excluding Sand City from critical habitat will contribute to a more positive climate for voluntary habitat conservation efforts, which provide greater conservation benefits than critical habitat. This comment also asserts that it can not be argued that exclusion of the land area within Sand City would lead to the extinction of the plover or appreciably reduce its recovery.

Our Response:

As part of this final rule, we have excluded Unit CA-12C from this final critical habitat designation pursuant to section 4(b)(2) of the Act. For further information see section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act below.

69.

Comment:

One comment states that Morro Bay should be excluded from CHD as the DEA identifies it as one of the high cost areas while no plovers fledged there in 2004 and only one in 2003. The costs are therefore greater than the benefits for the community. The comment further states that the critical habitat designation is not working as there were more plovers on the beach in Morro Bay before the restrictions went into place.

Our Response:

We have excluded the Morro Bay unit from this final critical habitat designation pursuant to section 4(b)(2) of the Act (see section titled below Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).

70.

Comment:

One comment noted that the Service did not provide the minimum required 60-day comment period and that comments are due only days before the court-ordered final designation deadline of September 20, 2005.

Our Response:

The Service provided a 60-day comment period on the proposed critical habitat designation. The need to meet the court ordered deadline of September 20, 2005 made it impossible for us to open the comment period on the economic analysis for 60 days as well.

71.

Comment:

A comment on the proposed designation requests that the Service correct the mapping errors in its December 17, 2004, proposed rule to protect Sand City and landowners should the proposed critical habitat boundaries become relevant.

Our Response:

Our maps are used only as a general guide to assist landowners to determine the location of the boundaries of a proposed or final critical habitat designation. The legal coordinates presented at the end of this final rule represent the actual boundaries of this final critical habitat designation. As part of this rule making process, we have made every effort to ensure that our maps are as accurate as possible. The final rule, economic analysis, and supporting Geographic Information System (GIS) maps will also be available via the Internet at

http://www.fws.gov/pacific/sacramento/default.htm.

72.

Comment:

One commenter requests that the Service clarify the exclusion of the Metropolitan's property at Ormond Beach by delineating it on the map in the final rule as this was not clear in the maps contained in the proposed rule.

Our Response:

Our maps only depict those areas we have proposed or designated as critical habitat. We include some features on those maps so that the public can determine where the general boundaries of the proposed and final designation occur. Unfortunately, we can not have all features identified on these maps. In the case of areas excluded from the proposed and final designation, these areas would not be identified as critical habitat. Please be aware that the use of these maps is only intended to serve as a general guide for the public to determine the boundaries of critical habitat, and to determine the actual boundaries of this designation, a person should use the legal coordinates located at the end of this final rule.

73.

Comment:

One commenter suggests that it might be instructive to do a study on how many people choose not to go to a beach because it is being used by vehicles.

Our Response:

In essence of costs and time, we have conducted our economic analysis to identify those economic activities believed to most likely threaten the plover and its habitat and, where possible, quantify the economic impact to avoid, mitigate, or compensate for such threats within the boundaries of the critical habitat designation. We found no evidence that beach use would increase if vehicle use was not permitted.

74.

Comment:

One comment states that the Arcata Fish and Wildlife Office has failed to meet with the County of Del Norte and private citizens to comment on restricted recreational use, loss in land values, and effects on the “Federal project” of breaching lakes.

Our Response:

Staff from the Arcata Fish and Wildlife Office provided a presentation on the proposed critical habitat and answered questions at a Del Norte County Board of Supervisors (Board) meeting on March 8, 2005, at the Board's request. The Arcata office held an additional public meeting in the Board's chambers on June 9, 2005, to discuss issues with the public regarding critical habitat designation. At both meetings, staff stated that restrictions applied to recreation and other uses within suitable plover habitat are dependant on the managing entity's actions, and are usually implemented in an effort to avoid take of a listed species rather than as a result of critical habitat designation. Staff also stated that they are not qualified to make economic determinations regarding land values, and further stated that is why the Service contracts out the economic analysis for designation. With regards to the “Federal Project” of breaching the Lake Earl lagoon system, Service staff referenced the recently completed biological/conference opinion (January 5, 2005) for the 10-year Permit to breach the Lake Earl sandbar. No mitigation, protective measures, or restrictions on the proposed action, or any activity, were imposed as a result of the proposal to designate critical habitat at the breach site (Section 7 consultation 8-14-05-2577). If not for the Federal action (i.e. mechanical breaching), the lagoon would breach on its own at a higher water level.

75.

Comment:

One commenter states that the maps within the proposed rule are misleading as they do not make it clear that the majority of the designation is private property. The commenter states that 87 percent of the proposed designation is private property. The commenter also highlights that the map delineating Unit CA-1 is incorrect.

Our Response:

As part of our proposed and final designation of critical habitat, we have done our best to present maps of those areas we have determined to be critical habitat. We have provided legal coordinates so that a landowner can determine where the proposed or final critical habitat designations exist, maps to serve as a general reference or guide of where those boundaries occur, and have provided a table indicating the quantity of the proposed and final designation that is in private ownership, or is owned by the State, Federal, or local governments. In total, approximately 3191 ac (1,296 ha) of this final designation is privately owned land. The final rule, economic analysis, and supporting Geographic Information System (GIS) maps will also be available via the Internet at

http://www.fws.gov/pacific/sacramento/default.htm.

76.

Comment:

One comment states that the DEA frequently uses the term “opportunity costs,” but fails to mention the potential for “substitution effects.”

Our Response:

Section 4.3 and 4.4 (specifically, paragraphs 147, 152-153, 159, 171, 189, and 205, and Exhibit 4-32) of the DEA address substitution effects. In addition, the analysis acknowledges the availability of substitute sites could lower the per-trip loss. Accordingly, the DEA assumes beaches where less than ten percent of the linear extent of the beach is fenced have sufficient substitute possibilities for beach-goers such that quantification of small changes in consumer surplus is not feasible.

77.

Comment:

According to one commenter, an economic impact analysis should include the following elements: (1) Direct, indirect, and induced economic activities (output, employment and employee compensation); (2) changes in property values; (3) property takings; (4) recreational impacts; (5) business activity and potential economic growth; (6) commercial values; (7) County and State tax bases; (8) public works project impacts; (9) disproportionate economic burdens on society sections; (10) impacts to custom and culture; (11) impacts to other endangered species; (12) environmental impacts to other types of wildlife; and (13) any other relevant impacts.

Our Response:

The DEA does not address property takings, impacts to custom and culture, impacts to other endangered species, and environmental impacts to other types of wildlife as these elements are outside of the scope of the analysis as described in Section 1. The remainder of these elements were explicitly considered and described in the DEA, and quantified where possible.

78.

Comment:

Multiple comments state the resources employed to administer plover protection (

i.e.

, labor, fencing, monitoring, etc.) injects spending into the local economy and this should be considered in the DEA. For example, one comment states that while the DEA only includes the economic costs associated with plover research and management activities, it should be noted that these activities also bring money into Humboldt County in the form of research grants and contracts that pay graduate students, consultants, and other researchers that live in the area. The comment highlights a recent Humboldt State University (HSU) Study that indicates that each HSU student not living at home contributes approximately $10,000 per year to the local economy, not including state fees. Three to four graduate students at HSU have studied the plover over the past five years. Another comment states the economic benefits and income from designation, habitat protection, monitoring, and management of snowy plover and other species utilizing the habitat, and recreational and educational opportunities should be included in the DEA.

Our Response:

The DEA acknowledges that certain communities may experience increased economic activity as a result of plover management efforts. The expenditure of management resources to protect the plover, however, represents an opportunity cost as these resources are no longer available for other uses. The fact that management expenditures generate local employment and associated spending for consultants, students and researchers represents a distributional effect rather than a compensating surplus gain.

79.

Comment:

One commenter stated that while the forecast period of the DEA is only 20 years, the Service has a duty to imagine that our ancestors will be present for hundreds or thousands of years and the birds should be here along with them.

Our Response:

Section 1.3 of the DEA discusses the analytic time frame. To be credible, the economic analysis must estimate economic impacts based on activities that are reasonably foreseeable. A 20 year time horizon is used, because many land managers do not have specific plans for projects beyond 20 years, and forecasting beyond this time increases the subjectivity of estimating potential economic impacts (i.e., any results would run the risk of being speculative). In addition, forecasts used in the analysis of future economic activity are based on current socioeconomic trends and the current level of technology, both of which are likely to change over the long term.

80.

Comment:

Multiple comments expressed concern that while the DEA acknowledges that no data exist on whether or to what extent plover habitats might affect the use of beaches, it still applies the assumption that fewer visitors will visit a beach during breeding season. For example, several commenters highlight that no evidence exists that recreation has declined at particular sites (e.g., Coal Oil Point Reserve) where critical habitat has been designated since 1999. Further, California Department of Parks and Recreation states that they have not found that plover fencing significantly reduces visitation or diminishes

recreational experiences, except for at the Oceano Dunes State Vehicular Recreation. The comment states that data indicate that from 1995 to 2004, visitation at many state beaches showed an upward trend in visitor attendance. For example, Salinas River State Beach is one of the most productive and heavily fenced parks units in CA-12C, with 99 nests reported in 2004 over the 3.5 miles of beach habitat. Attendance figures for this park unit have steadily increased since 1997 despite critical habitat designation in 1999 and an increase in number of fenced plover nesting areas.

Our Response:

Section 4.3 of the DEA details the methodology applied to determine what, if any, impacts may occur due to plover fencing on beaches. While attendance at State beaches may have increased, it is not necessarily the case the plover fencing did not impact visitation. Data are not available, for example, to estimate whether visitation would have increased at an even greater rate in the absence of plover protections. Ideally, visitation rates at individual beaches would be compared before and after plover conservation efforts were undertaken. Such data were not available for use in the DEA. Therefore, absent empirical evidence of the change in visitation levels, the assumption that fewer recreators visit plover beaches than would have absent fencing is an appropriate means to bound the potential impact of conservation efforts. This approach was peer reviewed and determined to be reasonable.

81.

Comment:

Many comments disagree with that the assumption in the DEA that all the foregone acres of beach set aside for plover breeding could be used for recreation. In particular, commenters state that the assumption that recreation is completely eliminated from entire stretches of beach where symbolic fences or exclosures are erected overestimates impacts. They state that most access restrictions occur on the foredune, away from the wave slope (or wet sand) where most recreation (e.g., walking, riding, driving) occurs. In addition, for a number of the beaches, the fenced areas are not amenable to recreation for much of the plover breeding season. One commenter asserts that this is not considered in the DEA, which assumes year round usage of all acreage designated.

Our Response:

Paragraphs 148-149 of the DEA present the anecdotal evidence provided in the literature and by interest groups and beach managers that beach visitors may or may not be affected by plover conservation efforts depending on, for example, their primary purpose of visitation and location of fencing. In fact, some visitors may consider their beach visit enhanced due to the possibility of plover viewing, while others may consider it degraded due to restricted access at particular stretches of beach. Because of the uncertainty surrounding the potential reactions of beach visitors to plover-related access restrictions, the DEA employs two alternative methods to estimate the potential magnitude as discussed in Section 4.3. The first method, scenario 1, used in the DEA assumes that as a result of plover restrictions, recreators take fewer trips to the beach. The availability of substitutes is considered. For beaches at which less than 10 percent of the beach length restricts recreation, this analysis assumes that recreators may visit substitute sites of the beach resulting in negligible welfare losses. The second method used in the DEA, scenario 2, assumes that rather than losing beach trips, recreators visit their first choice sites but have a diminished experience as a result of plover restrictions. This second approach may overstate losses at beaches that are sparsely visited and therefore are not likely to experience significant congestion as a result of fencing. This scenario, however, does not account for the losses to recreators who choose to visit a less-preferred beach or who make fewer trips.

82.

Comment:

Multiple commenters assert that the methodology used to estimate lost recreational opportunities in the DEA is flawed. One commenter noted that the assumption that all beach users get less enjoyment from short stretches of beach, specifically that pedestrians and equestrians lose $1.42 in daily net economic value for every one mile reduction in beach length, means that everyone gets less pleasure from visiting shorter beaches, such as College Cove, than longer beaches, such as Mad River.

Our Response:

The DEA assumes that visitors hold the same value for each one mile stretch of beach at all beaches across the designation. Accordingly, if a stretch of beach is restricted, the value to the visitor of that stretch is lost. The DEA does not make inter-beach comparisons of value. That is, the lost value of a restricted area on a particular beach reduces the value of that same beach absent plover fencing. The total values of various beaches (for example, shorter to longer beaches) can not be compared using only the value per mile per person per day. Other variables factor into estimating the value the public places on a beach, for example, the availability of parking.

83.

Comment:

One commenter states that the claim in section 4.5.1 of the DEA that 70 percent of total annual beach attendance occurs during plover nesting season is incorrect. The commenter offers that a more likely estimate is 20 to 25 percent as nesting season occurs five to six weeks before school is over for the summer and that peak beach attendance is in July and August. Another commenter stated that reliance on vehicle-counters and vehicle counts in parking lots can overstate visitors.

Our Response:

As described in the proposed rule, the DEA considers plover nesting season to be from early March to late September. Paragraph 158 describes that the estimate of 70 percent visitation during the nesting season is based on monthly visitation rates for beaches managed by California Department of Parks and Recreation with greater than ten plovers. In each instance, the DEA employs the most comprehensive data available in estimating number of visitors to the beach, in some cases visitor logs are kept by the beach managers, in other cases vehicle counts are considered the best indicator of visitation rates.

84.

Comment:

A comment highlights that the DEA states “Where data are not available for a beach area considered in the analysis, the closest similar site was identified and its attendance rate is used to calculate expected visitation.” The comment notes that this assumption is very problematic in California, where beach visitation varies significantly from beach to beach and it is inappropriate to assume that beaches near one another would have similar visitation.

Our Response:

In the absence of specific visitation data for particular beaches, the analysis applies the visitation rates from the nearest beach with similar characteristics. The DEA acknowledges the limitations of this transfer and notes that better data are not currently available to improve upon these visitation estimates. The Service also notes that this type of data limitation only occurred in four subunits, only one of which experiences fencing.

85.

Comment:

One commenter offers that estimates of plover exclosure diameters of five to eight meters as assumed in the DEA far exceeds the actual size of the exclosures.

Our Response:

As described in paragraph 165 of the DEA, the five to eight foot diameter design for exclosures assumed in the DEA is equal to that prescribed in the California Department of Parks and Recreation's Plover Systemwide Management Guidelines.

86.

Comment:

Other commenters question the DEA's assumption that the

value of a diminished beach trip is directly proportional to length of beach closed. The commenters note that the Lew and Larson study (Lew, Daniel K. and Douglas M. Larson, 2005, Valuing Recreation and Amenities at San Diego County Beaches, Coastal Management, 33:71-86) from which this information was obtained also offers the following information cited in the DEA “the coefficient on the length variables indicate utility increases with the length of the beach at a decreasing rate. In fact, the Lew and Larson paper provides the coefficients, which show that while beach length is positive, beach length squared is negative, making apparent that there is a non-linear and diminishing effect of additional beach length. Thus, the last few linear yards or miles of beach have less effect on visitation and value than the first linear years or miles of beach.” The commenters therefore state that the DEA should incorporate this information or estimate elasticity of demand for recreation at the beaches to account for this affect.

Our Response:

Paragraph 196 of the DEA describes the method applied to estimate value per mile of beach. The DEA applies the mean beach length from the peer-reviewed California-based study (Lew and Larson, 2005) of 2.06 miles, and divides it by the implicit price estimated from the study's utility function. This results in a value of $1.42 per beach mile per visitor on average. While Lew and Larson do use a functional form (quadratic) that allows them to estimate a non-constant marginal impact of beach length, strictly applying this functional form to individual beaches creates complications. For example, the Lew and Larson results imply that for all beaches longer than 8.4 miles, additional length will decrease the value of a visit. Equivalently, the results imply that partial closures may lead to benefits for visitors at such beaches. In order to apply the results of this study to our sample of beaches, the DEA derives and applies a single average value from the Lew and Larson study. Further, plover fencing may occur anywhere along the beach (e.g., at the beginning, end, at multiple locations, or at access points) and therefore result in fragmented beach access; that is, access restrictions for plover conservation are not necessarily continuous. The DEA does not assume that there is a negative value to incremental reductions in beach length for sites longer than 8.4 miles but instead assumes visitors value incremental length on longer beaches as much as on shorter (below 8.4 miles) beaches. This method of applying the Lew and Larson study to estimate decreased value of beaches due to plover restrictions was determined by peer reviewers to be reasonable with the data available.

87.

Comment:

Several comments state that the assumption that visitors are distributed evenly along the entire length of the beach is false. Specifically, the California Department of Parks and Recreation comments that beach users at most non-motorized beaches areas tend to spend the majority of their time within a quarter of a mile from the access points or along the wet sand near the waters edge.

Our Response:

Exhibit 4-32 the DEA acknowledges that, to the extent visitors congregate around access points, this analysis overstates the lost recreation value associated with plover conservation efforts. However, quantified estimates of the distribution of visitors away from access points are not available for California. In addition, the estimation of the specific visitor densities in the vicinity of the plover fencing or exclosures is complicated by the fact that the location plover fencing may change over time depending on the location of nest sites.

88.

Comment:

One comment on the DEA states that the $30 per person per day value of lost recreation applied in the DEA is drawn from a study of beach use in the San Diego area and may not apply to rural areas such as Humboldt County. Similarly, another comment states the use of Southern California value estimates for other regions that are vastly different in populace and land uses overstates recreation impacts in the other regions.

Our Response:

Ideally, specific per person per day values for lost recreation would be applied for each individual beach in the analysis. During the development of the DEA, however, these data were not determined to be available for each beach in California, Oregon, and Washington. Available studies that estimate value of beaches for recreation are based on beaches in Santa Monica and Orange Counties, California and the east coast (e.g. Florida and New Jersey). Values reported in these other studies of beach recreation, range from approximately $12 to $62. The DEA estimate of $30 per person per day for a beach trip falls well within this range. Based on location, date, and study characteristics, the Lew and Larson (2005) value of general beach recreation on San Diego beaches was determined to be the most appropriate for the DEA. Peer reviewers of the DEA agreed that this value was reasonable considering available information.

89.

Comment:

Multiple comments on the DEA assert that the value of the birding, botonizing, and general nature-related enjoyment should be included. The comments provide numerous specific examples of essential habitat units where birders travel specifically to see plovers and where plover management results in a more aesthetically pleasing area. The Service's 2001 National Survey of Fishing, Hunting, and Wildlife Associated Recreation estimates 1.3 million individuals visited the California ocean side to engage in shorebird viewing accounting for over 22 million non-residential (i.e., away from home) bird observation days in California. This study highlights that in 2001, expenditures in California by all wildlife viewers amounted to an estimated $2.1 billion, and that shorebird viewing constitutes an important component of all wildlife viewing in California. Finally, a comment states that the preservation of open space for the plover draws local, regional, and international visitors that contribute to the local economy.

Our Response:

The DEA acknowledges the potential for benefits to the birding community of plover conservation efforts and notes that, to the extent that birding, botanizing, and general nature-related enjoyment are increased by the plover conservation efforts, the DEA overstates the economic impact of these conservation efforts. Evidence exists that some percentage of visitors engage in birding activities. The Oregon Shores Recreational Use Study estimates that 0.2 percent of visitors to all beaches across the State identified birding as the primary reason for their trip. Data are not available, however, to estimate the number of visitors that may engage specifically in plover-viewing. Further, the National Survey described above evidences the importance of wildlife-viewing in the entire State, not that specifically related to plover habitat. The Survey also does not offer sufficient information to determine how many viewers visit the plover beaches, and further, how their decision to visit is related to the plover conservation efforts quantifies in the DEA.

90.

Comment:

One comment highlights the availability of literature valuing wildlife-viewing in California (Cooper and Loomis, 1991, “The Economics and Management of Water and Drainage,” Agriculture, Dinar and Zilberman, eds.). These data could be used to value the benefits that seeing additional plovers might provide to beach visitors.

Our Response:

The study cited in the comment offers a metric to correlate bird populations with increased value for a birding trip. While the DEA acknowledges the potential for improved conditions for bird-watching, as mentioned above, data are lacking in the numbers of visitors to the plover beaches that participate in bird-viewing. In addition, data on the number of birds typically seen on a single trip at each site absent plover conservation activities, and the increase in plovers seen as a result of conservation activities, is unavailable. It is therefore not clear how these value estimates in the cited study may be applied to this analysis.

91.

Comment:

Another comment states that the DEA uses the average value per trip of $30 from the Lew and Larson (2005) article. However, page 4-21, footnote 118 of the DEA notes that when substitute beach opportunities are taken into account, the losses from completely closing a single beach is between $0 and $1 per person trip; for example, for Silver Strand State Beach the loss per trip is $0.09. As stated in the footnote, the losses estimated recognizing the availability of substitutes can lower the recreational losses by an order of magnitude. The comment further expresses that the Lew and Larson research could be used somehow to estimate the lost value from closing several beaches as an upper bound on partial closures of beaches due to critical habitat.

Our Response:

As noted in the Lew and Larson study, the values referred to in the comment, $0 to $1, are per-trip economic values of closing individual beaches out of choice set of 31 beaches in San Diego County. The per-trip value is multiplied by all the individuals in the county who ever visit any beach, regardless of whether their first choice site is the beach that closes. This aggregate value represents the welfare loss of closing a single beach. Transferring this value to the DEA requires estimating the total number of people who visit any beaches (public and private) within California, Oregon, and Washington, and not simply the plover beaches addressed in the DEA. In other words, value losses would occur to all visitors for which a plover beach is within his or her choice set. Estimating the number of beach users cannot be accomplished simply by looking at beach visitation data, as single users may visit the beach multiple times. In addition, data are not available at the State level to group beaches into choice sets, and to understand the total number of visitors to each set. These issues present significant limitations to using these data to estimate impacts of plover restrictions. In addition, although the per trip value loss is less than the value used in the DEA, the number of beach users by which this value is multiplied is likely more than the number of visitors to plover beaches. Therefore, a method that applies the $0 to $1 values may not result in a significantly lower estimate of impact.

92.

Comment:

One party comments that the DEA assumption that the entire length of the critical habitat unit is closed where information on the amount of fencing is not available is not appropriate. The comment offers that the DEA should use instead estimate an average fencing length to total length of the critical habitat unit to make an informed estimate.

Our Response:

In the absence of information regarding length of fencing, the DEA assumes the entire length of critical habitat publicly owned or managed is fenced in four units. Estimating an average ratio of fenced to total beach is complicated by the extreme variation in this value across beaches. The ratio varies from 0.01 percent to 100 percent across the proposed designation. In the case that the fenced area is smaller than the proposed habitat in these four units, impacts to recreation are likely overestimated. It is not clear, however, that the methodology suggested by the commenter would yield more accurate results than that employed in the DEA.

93.

Comment:

A commenter states that the seventy mile portion of the coast between Gaviota and Guadalupe has only four coastal access points; those at Surf Beach and Ocean Beach provide the nearest coastal access for the 65,000 residents of Lompoc Valley. The comment further states that both beaches have been affected by the beach closures due to the designation of critical habitat for the plover. For Lompoc Valley residents, coastal access alternatives are almost an hour drive.

Our Response:

This comment provides anecdotal evidence supporting the assumption applied in the DEA that beach users may be impacted by plover conservation efforts and that limited substitutes may exist in particular areas.

94.

Comment:

A commenter states that the recreational impacts to CA-17A and CA-17B are underestimated in the DEA and that the total economic loss in beach use at these sites is $627,908 per season (2002$). The comment questions the DEA conclusion that five other stretches of the California coast experience greater economic losses despite the fact that they have other beach access alternatives. The commenter requests that the DEA consider both the number of users and the availability of alternative beach access locations.

Our Response:

The data used to calculate the number of visitors impacted at these sites were provided by Santa Barbara County and Surf Ocean Beach Commission. Because data are available for the period after plover restrictions were put in place, based on the length of beach previously available, the analysis assumes visitation may have been four times higher without plover fencing. As described in Section 4.3, the DEA employs two distinct scenarios to estimated the potential magnitude of loss associated with reduced recreational opportunities. Scenario 1 assumes that as a result of plover restrictions, recreators take fewer trips to the beach and assigns a value obtained from the published economics literature to those lost beach trips. Under this scenario the DEA estimates an annualized loss of $5.14 million for subunits CA-17A and CA-17B. Scenario 2 assumes that rather than losing beach trips, recreators still visit their first choice sites but have a diminished experience as a result of plover-related access restrictions. According to this scenario, an annualized loss of $120,000 is forecast in subunits CA-17A and CA-17B. The estimate provided by Santa Barbara County falls within the range of potential impacts as estimated in the DEA.

95.

Comment:

One commenter stated that the DEA should not estimate losses to recreation on beaches at which access is restricted for national security reasons, such as Vandenburg Air Force Base, or on beaches for which the purpose of public acquisition is for habitat preservation, such as Coal Oil Point Reserve and Nipomo Dune National Wildlife Refuge.

Our Response:

The DEA estimates losses to recreation at Vandenburg Air Force Base as stretches of beach that were previously open to the public were closed due to the presence of the plover and not for national security reasons (see Section 4). Similarly, stretches of beach that were open to the public at Coil Oil Point Reserve have been fenced for the plover. The economic analysis assumes that these access restrictions for the purpose of plover conservation may impact the visitors to these beaches and quantifies the impact. The DEA does not, however, estimate any impact to recreation at Nipomo Dune National Wildlife Refuge as access to this site restricts access to the public for reasons unrelated to the plover.

96.

Comment:

One comment expresses concern that the DEA applies an estimate of the value recreational vehicle use from a study based in Utah and North Carolina, while the plover habitat is within California, Oregon, and Washington.

Our Response:

Ideally, the DEA would employ a California-based study to determine the value of beach vehicle recreation. However, no such study was identified during the development of the DEA. The estimates used were contemplated by peer reviewers on the DEA and determined to be the most reasonable given currently available information.

97.

Comment:

One comment states that the DEA does not take into account the fact that Oceano Dunes State Vehicular Recreation Area (ODSVRA) is the only beach in California that legally permits the general public to drive on the beach and camp with recreational vehicles (RVs) directly on the beach. The comment further states that the DEA does not account for the value visitors place on restrictions to the unique beach camping opportunities at ODSVRA. Given the high visitation rate, as well as the location of camping restrictions, plover conservation has substantially reduced the value of the camping experience by creating a congested camping environment.

Our Response:

The DEA assumes that no substitute sites for this beach exist and accordingly estimates the value of restricted trips by assuming these visits are completely lost. Further, the DEA values pedestrian trips to this site at $30 per day and OHV trips to this site at $54 per day, consistent with the other sites in the analysis and relying on data provided by OSDVRA on the relative proportions of visitor types. The increment by which the opportunity for camping may increase the value that recreators hold for this site is unknown, and no additional information about this value was provided in public comment. If the value of a camping trip to this site is greater than $30 per day, the DEA may underestimate impacts to pedestrian users who camp at ODSVRA. Similarly, if the value of a camping trip at this unique site exceeds $54 per day, the DEA may understate impacts to OHV users who camp at ODSVRA.

98.

Comment:

One commenter states that visitors to ODSVRA tend not to be local residents and that applying the studies of expenditures of beach users for southern California, where many of the visitors are local, underestimates the impact to the regional economy. The comment further states that the DEA appears to underestimate attendance at ODSVRA. Page 4-45 of the DEA indicates beach attendance to be constant at 1,486,158 visitors (2002 data) through 2025. The DEA does not take into account increasing visitation. Also, the comment states that the DEA does not provide information on how the annual visits per mile (200,812) during the breeding season was calculated.

Our Response:

Based on a study published by the State of California's Department of Parks and Recreation in 1993 and provided in public comment, ODSVRA users spend more per trip than assumed in the DEA. In response to this comment, the regional impact modeling tool, IMPLAN, employed in the DEA was re-run to determine impacts as a result of recreation restrictions at ODSVRA for San Luis Obispo County, California assuming each lost trip results in a decrease in local expenditures of $97, as opposed to the $51 originally assumed in the DEA. This value is applied to a reduction in 209,164 trips in an average year from 2005 to 2025 resulting in an estimated impact of $30.1 million. This loss represents 0.25 percent of the annual baseline economy of San Luis Obispo County. This loss in trips is also estimated to impact 597 jobs in the County, or 0.45 percent of the annual baseline jobs.

To estimate visitation, the DEA used attendance data provided for ODSVRA by California State Parks for years 1997 to 2004. The values presented on page 4-45 represent average annual attendance during the nesting season. Attendance in 2004 was estimated to be 1,763,948. Further, as described in paragraph 159, the annual visitor estimates are assumed to increase two percent annually and are not assumed to be constant across future years.

To estimate the average annual number of visitors per mile at ODSVRA, the DEA assumes that 6.4 miles of beach are available for recreation in Unit CA-16. The average annual visitation to the entire area is estimated to be 1.8 million and the DEA assumes that 70 percent of annual visitation occurs during the plover breeding season. The estimate of visitors per mile during the breeding season is calculated by dividing the annual number of visitors by the length of beach and multiplying it by the percent of annual visitation occurring during the breeding season.

99.

Comment:

One commenter states that the DEA relies on the Second Administrative Draft Habitat Conservation Plan for the California Department of Parks and Recreation San Luis Obispo Coast District and Oceano Dunes State Vehicular Recreation Area (ODSVRA) to describe plover conservation efforts on ODSVRA. This draft incorrectly states that exclosures occur only as far as pole seven on the beach when in fact they extend further to pole six.

Our Response:

The DEA relies on the Draft Habitat Conservation Plan to determine the extent of plover fencing at ODSVRA. To the extent that this plan underestimates the length of the restricted area, the DEA may underestimate impacts. The distance between poles six and seven is one half mile.

100.

Comment:

One commenter offers that the DEA should have based its estimate of recreational impacts in OR-9 on the recreation losses estimated as a result of the New Carissa tanker spill in the pre-assessment report. The use of the New Carissa value is valid, because the report estimates losses that recreationists were awarded in a court settlement.

Our Response:

The value per trip applied in the New Carissa impact study is $14.39 per person per trip compared to $30 assumed in the DEA. However, the DEA estimates a lesser number of visitors experiencing diminished recreation value. For example, the data applied in the DEA estimate 71 visitors to OR-9 in 1999 compared to 18,400 visitors considered in the New Carissa study. The visitor count data used in the New Carissa report are 1999 vehicle count data taken at the BLM boat ramp north of OR-9. Based on information provided by BLM personnel, this visitor data is not an accurate count of visitor use in the critical habitat area. The BLM anticipates that most of the visitors counted in the New Carissa study use the boat ramp and do not access the plover area. To get to the plover area, a visitor would need a four wheeled drive vehicle to access the beach via the South Dike Road. No vehicle count data is available for the South Dike Road. The DEA therefore considers the best available visitor use data for OR-9 to be the Oregon Shore Recreational Use Study that specifically surveyed the beach contained within OR-9.

101.

Comment:

One commenter states that overestimation of impacts is inherent in the following quote from the text box on page 4-5 of the DEA: “* * * assuming half of the beach is inaccessible as a result of plover conservation efforts approximately 9,200 trips would be lost annually * * *. However, it is unclear what proportion of the visitors using this parking lot are precluded from recreating in these areas proposed for designation as a result of plover conservation efforts.” The commenter states that it seems there should be no

loss in visitation at this BLM site associated with the plover critical habitat unit.

Our Response:

The text box on page 4-5 presents information provided by the County Commissioner of Coos Bay, Oregon in contrast to that provided in the DEA. This information is included for comparison but not quantified in the total economic impacts described in the DEA.

102.

Comment:

Two commenters disagree with the DEA's assumption that saltwater fishing trips involve beach vehicle use.

Our Response:

Information provided by managers and stakeholders during the development of the DEA indicated that vehicles are used to facilitate surf fishing and that surf fishing may therefore be reduced by restrictions on driving. Peer review of the DEA also determined this assumption was reasonable.

103.

Comment:

One comment provided on the DEA states that the regional economic impact model overstates lost regional spending resulting from restricted beach visitation. The commenters opine that spending would simply be redistributed toward substitute goods.

Our Response:

Section 4.6 of the DEA discusses this limitation of the regional economic impact model, IMPLAN. This model does not assume that spending would occur on substitute goods within the region. To the extent that visitors purchase substitute goods and services in the region, the DEA may overestimate regional economic impacts. The regional economic impacts as estimated, however, are considered to represent a reasonable upper bound of impacts to the local economic as a result of restricting recreational visitation.

104.

Comment:

One comment expressed concern about the sources of data used to estimate reductions in recreational use. The commenters were unable to verify data assumed to be provided by Humboldt County Public Works and BLM's Arcata Office.

Our Response:

Beach visitation data were not provided by Humboldt County Public Works or BLM's Arcata Office for the DEA. These data were provided by Humboldt County Parks Department. BLM's Arcata office provided information on OHV restrictions, but not visitor attendance.

105.

Comment:

Two comments were provided stating that the number of visitors impacted at Silver Strand State Beach is overstated in the DEA. The number of vehicles and campers counted in 2004 was 97,949.

Our Response:

Monthly attendance data for Silver Strand State Beach provided by California Department of Parks of Recreation from 2001 to 2005 are used in the DEA. According to these data 326,746 visitors were recorded in 2004. This source was determined to provide the best available data.

106.

Comment:

Two commenters noted that reductions in some types of recreation, such as off-highway vehicle (OHV), or equestrian use, may result in increases in beach trip value for other user groups.

Our Response:

Exhibit 4-32 of the DEA describes that, to the extent that plover-related vehicle restrictions increases the value of a beach trip for other recreational user groups, the analysis overstates economic impacts to recreational users. Data were not identified, however, that describe the relationship of beach vehicle use and value to the pedestrian or equestrian recreators.

107.

Comment:

One comment asserts that the regional economic impact analysis in the DEA does not take into account the impact to visitors with complex mechanical needs stemming from the use of Recreational Vehicles (RVs), OHVs, and dune buggies.

Our Response:

As discussed above, in response to comments on the DEA, the IMPLAN regional modeling tool was used to determine regional impacts of restrictions to vehicle use at ODSVRA for San Luis Obispo County, California. Following comment, this revised IMPLAN analysis assumes a greater decrease in local expenditures per trip than used in the DEA based on a study published by the State of California's Department of Parks and Recreation in 1993 on ODSVRA users. Impacts to vehicle recreation-related activities, such as gas and equipment were considered in this analysis, which estimated an of impact of $30.1 million to the regional economy.

108.

Comment:

One commenter expressed concern that while dog-walking has occurred on Sands Beach for decades, recently, the California Coastal Commission has banned dogs from the beach as a result of a land swap deal to protect a nearby bluff.

Our Response:

Footnote 128 of the DEA discusses the value that beach visitors may have for dog-walking on plover beaches. This comment provides anecdotal evidence that some visitors may experience diminished trip value in the case that this activity is restricted for the purposes of plover conservation. The incremental value that the opportunity for dog-walking may have on the value of a beach trip, however, is unclear.

109.

Comment:

One commenter states that the DEA does not report that approximately 15 acres of CA-18 are owned and managed by the City. Public uses on this 15 acres include fishing, trails, scuba diving, swimming, vista points, windsurfing, and wildlife viewing. Excluding the impact to these recreational uses underestimates the economic impact of plover conservation in this unit. The City of Goleta is in the process of implementing a long-term management plan, covering these 15 acres, that includes plover protection provisions.

Our Response:

This comment provides new information of recreation taking place on a City beach within the potential plover habitat in Unit CA-18. The DEA does not currently estimate impacts in this area. Additional information would be required on the number and type of visitors and on the potential plover management activities on this beach in order to estimate impacts. That visitors engage in dog walking evidences the positive value of this type of beach recreation, however this value has not explicitly been studied.

110.

Comment:

A commenter states the DEA does not recognize the impacts to recreational activities that occur within Unit CA-1, or the businesses that rely on those activities. The DEA does not recognize the historic use of the area by the general public for uses such as horseback riding, hiking, fishing, OHVs, birding, and camping. The use of the area is promoted as a public access point as part of the County Local Coastal Program, and the County maintains a parking facility at the west end of Kellog Road to serve the general public.

Our Response:

Based on this information, the DEA likely underestimates impacts to recreation in CA-1 of plover conservation. More information is needed on the extent of recreational activity and of plover conservation efforts in this area, however, before economic impacts may be estimated.

111.

Comment:

One comment states that the DEA did not consider recreational impacts to Kellogg Beach in Unit CA-1.

Our Response: This comment provided did not indicate that plover management would occur at Kellogg Beach that would impact recreation. Further, conversation with Del Norte County did not indicate that plover fencing occurs in this area. To the extent that plover management does occur at Kellogg Beach in the future, the DEA may underestimate impacts to CA-1.

112.

Comment:

One comment states that the DEA underestimates the number of recreational trips lost at Clam Beach, at 55 trips per year, and therefore

underestimates the regional impact of these lost trips.

Our Response: As described in Exhibit 4-30 of the DEA, an average annual loss of 1,109 trips is estimated for Unit CA-3A at Clam Beach. The commenter appears to have assumed that the 1,109 trips lost were estimated over 25 years, when in fact the estimate is annual.

113.

Comment:

According to one commenter, the DEA should include any economic impact on commercial beach fishing.

Our Response:

In developing the DEA, no information was identified concerning any commercial beach fishing operations within the proposed critical habitat designation. To the extent that commercial beach fishing operations does occur, impacts to these beach users are not incorporated. The extent to which commercial fishers were included in the visitor counts, impacts to these parties were included in the DEA. However, they were assigned a recreational fishing value, which may differ from values of trips to commercial fishers.

114.

Comment:

One comment asserts that the DEA underestimates the regional economic impact of plover conservation efforts. The commenter states that his/her Clam Beach horseback riding business was impacted, harassed, and eventually closed due to plover listing, plover advocates, and agency threats and that $20,000 per year is lost to the community by this business being closed.

Our Response:

The DEA considers the impact of plover conservation efforts on small recreation-related businesses in this region in Section 4.6.

115.

Comment:

Multiple commenters state that the DEA did not consider potential reductions in property value due to plover-related land use restrictions. For example, according to one comment, property owners within critical habitat will bear “stigma impacts,” including “changes to private property values associated with public attitudes about the limits and costs of implementing a project in critical habitat.” In contrast, other commenters assert that the DEA suggestion that restricting beach access can only have a negative effect on property values is incorrect and suggest that restricting beach access could have a positive offsetting impact on certain types of property value, particularly beach residents, if beach congestion is reduced. The DEA does not include potential benefits from restricted beach access, or cite relevant hedonic price literature quantifying the relationship between congestion externalities and housing prices.

Our Response:

Section 1.2.3 of the DEA describes the potential for stigma impacts. More specifically, Section 5.1 of the DEA discusses the potential for plover conservation efforts to affect property values. While property value research demonstrates that proximity and access to beaches may increase the value of a property, research was not identified that correlates the level of beach access to property value. Plover conservation efforts are not anticipated to completely preclude access to beaches, and no data are available to estimate potential percentage decrease in property value if beach access is restricted but not precluded. Section 4.3.2 of the DEA discusses the effect of beach congestion on value of a beach trip, but no literature was identified in the development of the DEA correlating beach congestions and housing price.

116.

Comment:

A comment provided states that while the DEA acknowledges the three development nodes on the Sand City Cost, the Monterey Bay Shores', MacDonald, and Sterling sites, it only considers impacts to the Monterey Bay Shores' site.

Our Response:

Section 5.3.3 of the DEA describes the impacts of implementing plover conservation efforts in the implementation of the Sand City development project. The DEA acknowledges the three sites that comprise this development project: The McDonald Site, Sterling Site, and Lone Star Site (also referred to as Monterey Bay Shores). The DEA, however, incorrectly refers to the three sites collectively as the “Monterey Shores development project.” The description of plover conservation efforts to minimize impacts is from the draft Habitat Conservation Plan (HCP) for the Monterey Bay Shores Project site specifically. The DEA assumes that similar conservation efforts may be required at all three sites. Importantly, however, the economic impacts as quantified in the DEA were obtained from personal communication with the attorney from Sand City and include impacts to the entire Sand City development project.

117.

Comment:

Two commenters assert that the DEA should not include economic impacts to Sand City associated with HCP development. Commenters offers that the California Coastal Commission's (CCC) denial of a development permit for this project was based on a number of reasons involving the project's failure to meet legal standards under California's Coastal Act and was not predicated solely on the presence of plovers on the property. Comment from the CCC asserts that they did not permit the project primarily due to a water availability issue, and not because of the plover.

Our Response:

Section 5.3.3 of the DEA acknowledges that initial project plans were not permitted for multiple reasons and that it is unclear to what extent the re-planning efforts were driven by the plover. The DEA further acknowledges that consideration of multiple factors influenced the currently proposed mitigation measures associated with the revised plan for development of Sand City, for example the purchase of private lots for open space and development. Particular conservation efforts described such as hiring of full-time plover monitors, however, are clearly related to the plover. The DEA isolates conservation efforts associated with the development that specifically benefit the plover and its habitat for inclusion in the estimate of impacts to Sand City. Of note, Unit 12C of the proposed critical habitat, which contains this proposed development site, is excluded from final critical habitat.

118.

Comment:

One commenter states that the DEA's assumption that there will be no development impacts on the Oxfoot Property (Unit CA-7) is unreasonable. The commenter asserts that the Dillon Beach site will likely be developed in some fashion during the next 20 years and that the lack of a current formal development application is not a basis for concluding that none will occur. This comment further states that when development is proposed, the permitting authority will impose land use and beach access restrictions related to plover critical habitat. Because beach access has a positive effect on property value, the commenter states that restricting beach access to future development will have a negative effect on property value.

Our Response:

Section 5.3.4 of the DEA acknowledges the development potential of Dillon Beach within Unit CA-7. Communication with the Marin County Planning commission indicated that development projects in the area in the past have not been influenced by the plover or habitat. During the development of the DEA, the commenter provided plans for the proposed Lawson Family Dillon Beach Resort, which were developed in 1995-1996 and included a memorandum on environmental constraints associated with the project which was reviewed by the County in preparing the Dillon Beach Community Plan. This memorandum highlighted impacts to special status species within the vicinity of the proposed project site. The plover

is not included in this list and the memorandum concludes that other wildlife species are not found at the site. It is therefore considered unlikely that plover conservation efforts would be a condition of permitting for this or similar development projects within the Dillon Beach area.

119.

Comment:

One commenter states that, “there will be future costs for administration of habitat conservation plans for the private lands within Area CA-1,” that are not captured in the DEA. For example, administrative costs of section 7 consultation associated with breaching of Lake Earl are not included.

Our Response:

As described in Section 5.3.4, Unit CA-1 is within Del Norte County, California and is 87 percent private lands. While attempts to develop the area have occurred, it has not been permitted for various reasons unrelated to the plover. Primarily the water table is very high in this area. Breaching of the adjacent lake would need to occur more often in order to make development possible, but the lake breaching presents an issue for the endangered tidewater goby. (Note that breaching of the lake could be beneficial to the plover.) No information was uncovered in the development of the DEA indicating future habitat conservation plans for the plover in this unit. Past consultation in 2003 on the lake breaching did not result in any conservation efforts for the plover. The consultation did, however, consider impacts of the project to the plover and administrative costs are therefore captured. In the case that consultation were to occur for the similar breaching efforts in the future, the DEA underestimates the administrative costs of considering the plover, although no plover-related conservation efforts are expected to result consistent with previous consultations on the same project.

120.

Comment:

According to one comment, the DEA does not include the economic loss of potential reduced campground development in Unit CA-3A, Clam Beach/Little River.

Our Response:

As detailed in Section 5.3.3 of the DEA, Humboldt County Public Works estimates that in the case that plover conservation efforts limit the planned expansion of the existing public campgrounds in Humboldt County, the County could lose up to $30,000 per year in unrealized revenue. This impact is included in the DEA.

121.

Comment:

According to a comment, the DEA underestimates management costs for ODSVRA. The DEA estimates that from 1993 to 2000, California Department of Parks and Recreation spent approximately $200,000 annually on plover management, almost all of which was spent at Oceano Dunes. Those costs increased to $750,000 per year from 2001 to 2004. Future management costs at ODSVRA are expected to exceed $750,000 per year going forward. No mention is made, however, of the recent settlement of litigation between California Department of Parks and Recreation and Sierra Club, in which State Parks committed to spending in excess of $500,000 in plover conservation and monitoring efforts.

Our Response:

Paragraph 100 of the DEA describes the expected expenditures for plover management by California Department of Parks and Recreation as a result of the litigation referenced in this comment. The future management costs of $750,000 per year referenced above, and incorporated in the DEA's impact estimate, includes the $500,000 for plover management resulting from the consent decree between California Department of Parks and Recreation and the Sierra Club.

122.

Comment:

One comment suggests the DEA underestimates management costs at California Department of Parks and Recreation sites by not using the average cost to protect a plover nest at ODSVRA of $5,700 per nest. The DEA instead uses an estimate of $750 per nest for other sites.

Our Response:

Paragraphs 99 and 100 of the DEA discuss California Department of Parks and Recreation per nest management costs. As highlighted elsewhere in this comment, ODSVRA is unique when compared to all other California Department of Parks and Recreation sites, in that it provides large-scale vehicular recreation and camping on the dunes. California Department of Parks and Recreation provided an estimate of future management costs of $300,000 annually for all sites other than ODSVRA and $750,000 annually for ODSVRA. These estimates were divided by the number of nests present to determine a per nest cost. The per nest cost is used in the DEA to estimate management expenditures at each unit as expenditures are not tracked by California Department of Parks and Recreation according to individual unit. It is therefore not appropriate to apply per nest management costs estimated for ODSVRA to other California Department of Parks and Recreation sites.

123.

Comment:

One commenter asserts that the DEA should consider cost savings resulting from converting from daily, weekly, or other raking, to less frequent raking schemes.

Our Response:

The mechanical beach cleaning restrictions estimated in Section 4.5.2 of the DEA occur entirely within Los Angeles County. The County indicated that the Los Angeles County Fire Department—Lifeguard Division requires that the tide line be raked daily to create an even surface for safe emergency vehicular response and for general safety patrol. In addition, if mechanized beach cleaning were reduced the county would have to hire additional staff to manually clean the required beaches. Therefore, no cost savings are anticipated associated with decreasing the frequency of beach raking in Los Angeles County.

124.

Comment:

One commenter states that cost estimates for management and monitoring appear to have been exaggerated in the DEA by including staff and contractor activities not specifically related to the presence or potential presence of plovers. For example, Silver Strand State Beach has limited beach raking, and Border Field State Park has no beach raking related to plover.

Our Response:

The DEA agrees with this comment and does not estimate any impacts of reduced beach raking for either of these sites.

125.

Comment:

One comment asserts that cost estimates for management and monitoring are overstated at Border Field State Park. Monitoring, management, and fencing at this park are focused on the California least tern and no areas are specifically closed due to the presence of plover.

Our Response:

Management costs estimated in Section 3 for this assume that California State Parks will spend $750 per nest for plover management, which includes construction of exclosures and symbolic fencing, dog prohibitions, and predator controls. These efforts have been undertaken at other California State Parks and are therefore assumed to be potentially relevant at other State Parks that support the plover in the future. As described in Section 4 of the DEA does not estimate any recreational losses in this unit.

126.

Comment:

According to one commenter, impacts calculated for Unit CA-12A, Jetty Road to Aptos are based on the future use of exclosures. While it is true exclosures have been used in the past, they may not necessarily be in the future. For example, in the 2005 breeding season no exclosures were used on this beach section.

Our Response:

The DEA assumes past management efforts may continue into the future in the case that the area is designated as critical habitat. To the extent that plover fencing or exclosures

are not constructed, the DEA likely overestimates the impacts of plover conservation efforts at this site. Unit 12A has been excluded from final critical habitat designation.

127.

Comment:

One commenter states that the DEA does not include any economic impacts of predator control.

Our Response:

Sections 3.1 and 3.2 of the DEA discuss and quantify management costs, including predator control.

128.

Comment:

A comment provided on the DEA requests that the range in gravel mining costs related to plover monitoring be explained.

Our Response:

Paragraph 335 of the DEA summarizes impacts to gravel mining. Gravel mining costs are expected to range from $5,000 to $50,000 for plover monitoring. The range is great as costs depend on whether and where the plovers are located in the area. Costs may increase, for example, if plovers are in the proposed extraction area.

129.

Comment:

One comment states that the DEA does not properly distinguish property ownership and cost associated with North Island North (CA-27A) and North Island South (CA-27B). North Island North is Naval Base Coronado. The Department of Defense (DOD) owns land in both units but are listed in Exhibit 3-4 as private. Further, North Island South costs are included as DOD costs but the property is primarily owned and managed by City of Coronado.

Our Response:

The Proposed Rule states that both subunits are located entirely on land owned by the Department of Defense. Exhibit 3-4 of the DEA however, incorrectly identifies the land manager as private. The DEA does not estimate costs other than military for these two subunits as described in Section 6.2.2. Therefore, this correction is purely descriptive and does not affect impact estimates.

130.

Comment:

One commenter states that the DEA should include costs attributable to section 7 consultations, law enforcement, or additional expenses to public works related to plover conservation efforts.

Our Response:

Section 3.3 of the DEA quantifies the administrative costs of section 7 consultation; Sections 3.1 and 3.2 quantify and discuss management costs, including law enforcement costs where appropriate. Further, impacts to public works project, such as the Humboldt County camp grounds, are considered in the DEA.

131.

Comment:

One commenter highlights that paragraph 18 of the DEA does not acknowledge that the HCP developed by the California State Parks for Oceano Dunes is only a draft and includes several state park units in the San Luis Obispo County in addition to Oceano Dunes State Vehicular Recreation Area.

Our Response:

Paragraph 100 acknowledges the draft HCP includes Estero Bluffs, Morro Strand State Beach, Montana Del Oro State Park, Pismo Dunes Natural Preserve, and Oceano Dunes State Vehicular Recreation Area.

Summary of Changes From the Proposed Rule

In developing the final critical habitat designation for the Pacific Coast WSP, we reviewed public comments received on the proposed designation of critical habitat published December 17, 2004 (69 FR 75608), and the draft economic analysis published on August 16, 2005 (70 FR 48094); conducted further evaluation of lands proposed as critical habitat; refined our mapping methodologies; and excluded additional habitat from the final designation. Table 1, included in the “Critical Habitat Designation” section, outlines changes in acreages for each subunit where changes occurred between the proposed rule published on December 17, 2004 (69 FR 75608) and this final rule. In addition to clarifications in the text pertainting to units or subunits, we made changes to our proposed designation as follows:

(1) We mapped critical habitat more precisely by eliminating habitat areas of marginal quality that we do not expect to be used by Pacific Coast WSP. In certain locations, we determined that habitat had been degraded by extensive stands of non-native vegetation where beach managers are unable to plan dune system restoration due to shortages in funding or staff. In some instances, habitat may have also been degraded by overuse by humans, such as at OHV parks. As a result, the following critical habitat units had adjustments to their boundaries. The rationale for each adjustment is provided under the unit description. The affected critical habitat units are: CA 1, CA 15B, CA 16, and CA 19B.

(2) Several military areas were exempted from critical habitat designation due to their legally operative INRMPs. In addition, three National Wildlife Refuges were found to not to meet the definition of critical habitat under section 3(5)(a) of the Act, and were removed from the designation. Finally, several areas were excluded from critical habitat under section 4(b)(2) of the Act. These areas were excluded either for national security reasons, operative habitat conservation plans, or because of the high economic costs of critical habitat designation. For a complete description of these areas, please see the section titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act.

(3) Although we attempted to remove as many areas of unsuitable habitat to Pacific Coast WSP as possible before publishing the proposed rule, we were not able to eliminate all of them. As a result, the final rule represents a more precise delineation of essential habitat containing one or more of the primary constituent elements. This correction resulted in a reduction in the total acreage published in the proposed rule. The affected critical habitat units are: CA 4D, and CA 19A, which contained areas in the proposed rule that were removed in the final designation. Some other designated units may also contain small portions which do not contain the primary constituent elements. Since it is not possible to remove each and every area that may be unsuitable Pacific Coast WSP habitat, even at the refined mapping scale used, the maps of the designation still may include areas that do not contain primary constituent elements. These areas lacking the primary constituent elements at time of the final rule's publication are not designated as critical habitat.

(4) Some mapping errors occurred in the proposed critical habitat rule for the Pacific Coast WSP, resulting in misnaming a proposed unit, an error in the depiction of unit boundaries, or in supplying the wrong UTMs (Universal Transverse Mercator) in a unit's legal description. The affected units corrected in this final rule are CA 4D, CA 12C, and CA 22. Refer to the specific unit description for corrections.

(5) The Unoccupied Areas Identified for Possible Inclusion presented in the proposed rule were determined not to be essential to the conservation of the species. Consequently, we are not designating those areas in Washington and Oregon that were not occupied at the time of listing in 1993. Those units are WA 1, OR 1A, OR 1B, OR 2, OR 4, OR 5A, OR 5B, OR 6, OR 8, OR 10B, OR 10C, OR 11, and OR 12.

(6) An error was made during development of the proposed rule concerning the occupancy of CA 11A at the time of listing. We mistakenly stated that CA 11A (Waddell Creek, Santa Cruz County, California) was unoccupied during 1993, resulting in us not formally proposing this subunit as critical habitat. We were referred to data in our possession at the time of listing indicating that breeding plovers were present at Waddell Creek in 1991, and again in 1995. No surveys were

conducted during the interim period. Consequently, we assume CA 11A was occupied at the time of listing, thereby fully meeting our designation criteria as critical habitat.

We present brief descriptions below of the changes that have been made to units from those proposed or considered under the proposed rule (69 FR 75608), and provide the rationale for their change. A more complete discussion of changes is provided in the unit descriptions for those units that are designated as critical habitat. The critical habitat features essential for the conservation of the Pacific Coast WSP are defined in the “Primary Constituent Elements” section below. All designated units are located within the range of the population, in the States of Washington, Oregon, and California. They are all considered currently occupied (with documented use by plovers since 2000), unless otherwise noted.

Washington

WA 4, Leadbetter Point/Gunpowder Sands, 832 ac (337 ha): The portion of the spit within the Willapa National Wildlife Refuge does not meet the definition of critical habitat in section 3(5)(a) of the Act, as it does not require special management. As a result, the unit size has decreased to its designated 832 acres (337 ha) from its proposed 1,069 acres (433 ha) with the exclusion of the Refuge.

Oregon

OR 8, (Subunits OR 8A and OR 8B): A number of changes to the Siltcoos River Spit (OR 8A) and Dunes Overlook/Tahkenitch Creek Spit (OR 8B) subunits were made in response to public comment. The changes reduced the total size of the unit from 563 to 535 acres and included: (1) Creating a new smaller unit (Siltcoos Breach) from the northern portion of OR 8A; (2) locating the northern boundary of OR 8A 0.6-miles north of the Siltcoos River; and (3) combining proposed subunits OR 8B with OR 8A. These modifications better reflect the current biological and management conditions at the site since they designate an important wintering area (the Siltcoos Breach), support the existing snowy plover management areas, and provide consistency with the

Draft Habitat Conservation Plan for the Western Snowy Plover

(Oregon Parks and Recreation Department 2004).

California

CA 1, Lake Earl, 57 ac (24 ha): The portion of the proposed unit extending north to Kellogg Road, has been dropped from the final critical habitat designation, reducing the size of the unit from 91 acres (37 ha) to the designated 57 acres (24 ha). The narrow portion of the proposed unit that extended along the Pacific Shores housing development was eliminated from the final rule because of information received regarding the dense stands of non-native European beachgrass along an already narrow beach, the slope of the beachfront, and intensive use by OHVs. These c

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