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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-13886

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 19, 2012
- **Citation:** 77 FR 36728

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2010-0070; 4500030114]
RIN 1018-AX10
Endangered and Threatened Wildlife and Plants; Revised 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), designate revised critical habitat for the Pacific Coast distinct population segment (DPS) (Pacific Coast WSP) of the western snowy plover (
Charadrius nivosus nivosus,
formerly
C. alexandrinus nivosus
) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 24,527 acres (9,926 hectares) of critical habitat for the Pacific Coast WSP in Washington, Oregon, and California, fall within the boundaries of the critical habitat designation. This revised final designation constitutes an increase of approximately 12,377 ac (5,009 ha) from the 2005 designation of critical habitat for the Pacific Coast WSP. A taxonomic name change has occurred and been accepted for the snowy plover. Throughout the remainder of this document, we will use the currently recognized name for the subspecies,
Charadrius nivosus nivosus,
to which the listed entity (Pacific Coast WSP) belongs for references to the Pacific Coast WSP.

DATES:

This rule becomes effective on July 19, 2012.

ADDRESSES:

This final rule, final economic analysis, and maps of critical habitat will be available on the Internet at
http://www.regulations.gov
at Docket No. FWS-R8-ES-2010-0070, and at
http://www.fws.gov/arcata/.
Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411.

FOR FURTHER INFORMATION CONTACT:

Nancy Finley, Field Supervisor, or Jim Watkins, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
This is a final rule to revise the designation of critical habitat for the threatened Pacific Coast population of the western snowy plover under the Act. Under the Act, any species that is determined to be endangered or threatened requires designated critical habitat. We must issue a rule to designate critical habitat. In total, approximately 24,527 acres (9,926 hectares) of critical habitat for the Pacific Coast WSP in Washington, Oregon, and California, fall within the boundaries of the critical habitat designation.

We designated critical habitat for this species in 1999 and again in 2005. As part of a settlement agreement, we agreed to reconsider the designations. A proposed revised critical habitat was published in the
Federal Register
on March 22, 2011 (76 FR 16046). This constitutes our final revised designation for the Pacific Coast WSP.

We are making the following changes to the critical habitat designation. See Table 2 for details.

State
Current critical habitat designation
Revised designation
Factors affecting revised designation

Washington
2,526 acres (1,023 hectares) of Federal, State, and Private lands
Four units in Washington, totaling 6,077 acres (2,460 hectares)
We are excluding 425 acres (172 hectares) of Tribal lands from designation based on partnerships.

Oregon
2,147 acres (869 hectares) of Federal, State, and Private lands
9 units in Oregon, totaling 2,112 acres (856 hectares)
We are excluding 3,106 acres (1,257 hectares) of lands from designation based on partnerships with landowners.

California
7,477 acres (3,030 hectares) of Federal, State, and Private lands
47 units in California, totaling 16,337 acres (6,612 hectares)
We are excluding 266 acres (108 hectares) of lands from designation based on partnerships with landowners.

The basis for our action.
Under the Endangered Species Act, any endangered or threatened species must have a designated critical habitat. We are required to base the designation on the best available scientific data after taking into consideration economic and other impacts. The Secretary can exclude an area from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless the exclusion will result in the extinction of the species.

We prepared an economic analysis.
To ensure that we consider the economic impacts, we prepared a new economic analysis of the proposed revised designation. On January 17, 2012, we made available our revised draft economic analysis (77 FR 2243). We received public comments on the draft economic analysis and revised it based on input from the public. The economic analysis did not identify any areas with disproportionate costs associated with the designation, and no areas were excluded from the final designation based on economic reasons.

We incorporated peer review.
We sought comments and information from independent specialists to ensure that our critical habitat designation was based on scientifically sound data, assumptions, and analyses. We had invited these peer reviewers to comment on our specific assumptions and conclusions in the proposed revision of the critical habitat designation. Information we received from peer review is incorporated in this final revised designation.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of revised critical habitat for the Pacific Coast WSP under the Act (16 U.S.C. 1531
et seq.
). For more information on the taxonomy, biology, and ecology of the Pacific Coast WSP, refer to the final listing rule published in the
Federal Register
on March 5, 1993 (58 FR 12864); the 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607, April 21, 2006); and the revised proposed critical habitat rule

published in the
Federal Register
on March 22, 2011 (76 FR 16046). Additional information on this species can also be found in the Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (
Charadrius alexandrinus nivosus
) finalized on August 13, 2007, which is available from the Arcata Fish and Wildlife Office (see
ADDRESSES
section) (Service 2007). Information on the associated draft economic analysis for the revised proposed critical habitat was published in the
Federal Register
on January 17, 2012 (77 FR 2243). The nomenclature for the listed entity has changed to the “Pacific Coast population of the western snowy plover (
Charadrius nivosus nivosus
),” but this change does not alter the description or distribution of the species.

Change in Taxonomic Nomenclature

In our January 17, 2012,
Federal Register
publication (77 FR 2243), which made available the draft economic analysis on the March 22, 2011, revised proposed critical habitat for the Pacific Coast WSP, we proposed a taxonomic and nomenclatural change for the Pacific Coast WSP from
Charadrius alexandrinus nivosus
to
C. nivosus nivosus
and for that change to be published in the Code of Federal Regulations (CFR). Based on information presented in that notice (see the notice's section entitled
Taxonomic and Nomenclatural Changes Affecting Charadrius alexandrinus nivosus
) and acceptance of the change by the scientific community, we are amending the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to identify the listed entity as the western snowy plover (Pacific Coast population DPS) (
Charadrius nivosus nivosus
), to update the “Historic Range” column to clarify that the historical range of the Pacific Coast population DPS is California, Oregon, Washington, and Mexico, and to update the “Vertebrate population where endangered or threatened” column to indicate that the DPS is threatened in California, Oregon, Washington, and Mexico (within 50 miles of Pacific coast).

New Information on Species' Description, Life History, Ecology, Habitat, and Range

We did not receive any new information pertaining to the description, ecology, or habitat of the Pacific Coast WSP following the 2011 revised proposed critical habitat rule (76 FR 16046; March 22, 2011).

Climate Change

Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
e.g.,
temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (
e.g.,
habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

Sea level rise and hydrological changes associated with climate change are having and will continue to have significant effects on Pacific Coast WSP and its habitat over the next several decades. Sea level rise is a result of two phenomena: Thermal expansion (increased sea water temperatures) and global ice melt (Cayan
et al.
2006, p. 5). Between 1897 and 2006, the observed sea level rise has been approximately 0.08 inches (in) (2 millimeters (mm)) per year, or a total of 8 in (20 centimeters (cm)) over that period (Heberger
et al.
2009, p. 6). Older estimates projected that sea level rise along the California coast would follow a similar rate and reach 0.7-2 feet (ft) (0.2-0.6 meters (m)) by 2100 (IPCC 2007). Recent observations and models (including the models we used to evaluate Pacific Coast WSP habitat) indicate that those projections were conservative and ignored some critical factors, such as melting of the Greenland and Antarctica ice sheets (Heberger
et al.
2009, p. 6). Heberger
et al.
(2009, p. 8) have updated the sea level rise projections for California to 3.3-4.6 ft (1.0-1.4 m) by 2100, while Vermeer and Rahmstorf (2009, p. 21530) calculate the sea level rise globally at 2.4-6.2 ft (0.57-1.9 m); in both cases, recent estimates were more than twice earlier projections. Combined with California's normal dramatic tidal fluctuations and coincidental storms, the severity of the latter increasing with more frequent El Niño Southern Oscillations due to increasing surface water temperature (Cayan
et al.
2006, p. 17), the effects of sea level rise are expected to reach farther inland than previously anticipated (Cayan
et al.
2006, pp. 48-49; Cayan
et al.
2009, p. 40). Similar effects are expected to occur along the Oregon and Washington coastlines (Galbraith
et al.
2002, pp. 173-183; Huppert
et al.
2009, pp. 285-309; Ruggiero
et al.
2010, 211-262).

For the Pacific Coast WSP and other shorebird habitat, Galbraith
et al.
(2002, pp. 173-183) in a study of sites in Washington (Willapa Bay) and California (Humboldt Bay and San Francisco Bay) projected losses of intertidal habitat could range between 20 and 70 percent of the existing habitat. In addition, sea-level rise may result in coastal areas to lose their ability to continue to support the current number of shorebirds. Areas with steep topography (Northern California to Washington State) or seawalls (Southern California) with limited beach habitat are expected to have the most severe losses (Galbraith
et al.
2002, pp. 173-183). Additionally sea-level rise would cause: (1) Inundation of low-lying areas by high tides; (2) flooding of coastal areas during major storm events, especially near river mouths; (3) acceleration of erosion of coastal bluffs; and (4) a shift in beach profiles, move the position of the mean high water line landward (Huppert
et al.
2009, p. 285).

In our development of this critical habitat designation, we evaluated numerous climate change models of varying scope and scale. Due to the wide range of the Pacific Coast WSP (Washington to Mexico) we selected models which reflected conditions across the range for the Pacific Coast WSP and those developed or accepted by the Department of the Interior as a basis for determining the extent of the effects of climate change on coastal habitat used by the Pacific Coast WSP.

Previous Federal Actions

The Pacific Coast WSP was listed as a threatened species on March 5, 1993 (58 FR 12864). Critical habitat was designated in 1999 (64 FR 68508; December 7, 1999). That rule was remanded and partially vacated by the U. S. District Court for the District of Oregon on July 2, 2003, in order to 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). We published a revised rule designating critical habitat on September 29, 2005 (70 FR 56970).

A 5-year status review of the population under section 4(c)(2) of the Act was completed June 8, 2006, based on the analysis conducted for the section 4(b)(3)(B) status review for a 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607; April 21, 2006). Because the Pacific Coast WSP was listed prior to our 1996 policy published in the
Federal Register
on February 7, 1996 (61 FR 4721) regarding recognition of distinct population segments, in our 12-month finding, we reviewed and confirmed our determination that the Pacific Coast WSP constituted a valid distinct population segment.

On October 2, 2008, the Center for Biological Diversity challenged our 2005 critical habitat designation (70 FR 56970; September 29, 2005) (
Center for Biological Diversity
v.
Kempthorne, et al.,
No. C-08-4594 PJH (N.D. California)). This litigation was resolved through settlement, in which the Service agreed to conduct a rulemaking to consider potential revisions to the designated critical habitat for the Pacific Coast WSP. On May 11, 2009, the U. S. District Court for the Northern District of California adopted the terms of the settlement agreement and issued an order requiring the Service to submit a final revised critical habitat designation to the
Federal Register
by June 5, 2012. This rule complies with that court order.

Summary of Comments and Recommendations

We requested written comments from the public on the 2011 proposed rule to revise critical habitat for the Pacific Coast WSP during two comment periods. The first comment period requesting comments in association with the publication of the proposed revised rule (76 FR 16046) opened on March 22, 2011, and closed May 23, 2011. Upon the availability of the draft economic analysis (DEA) associated with the revised proposed critical habitat, a second comment period covering both the revised proposed rule and the DEA opened on January 17, 2012 (77 FR 2243) and closed on February 16, 2012. During both public comment periods, we contacted appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposal to revise critical habitat for this species and the associated DEA. During the comment periods, we requested that all interested parties submit comments or information related to the proposed revisions to critical habitat, including (but not limited to) the following: Unit boundaries; species occurrence information and distribution; land use designations that may affect critical habitat; potential economic effects of the revised proposed designation; benefits associated with critical habitat designation; areas proposed for designation and associated rationale for the non-inclusion or considered exclusion of these areas; and methods used to designate critical habitat.

During the first comment period, we received 149 comment letters directly addressing the proposed revision of critical habitat, as follows: 1 from a peer reviewer, 5 from Federal agencies, 1 from a Native American Tribe, and 142 from public organizations or individuals. During the second comment period, we received nine additional comments addressing the revised proposed critical habitat designation and the DEA. Of these latter comments, none were from Federal agencies, one was from a State agency, and the remaining eight were from public organizations or individuals. We did not receive any additional comments from Native American Tribes during the second public comment period. We reviewed all comments received for substantive issues and new information regarding the revised designation of critical habitat for the Pacific Coast WSP. All substantive comments are addressed in the following summary and any changes have been incorporated into this revised final rule as appropriate.

The open period for requesting public hearings on the revised proposed rule ran from March 22, 2011, through May 6, 2011 (76 FR 16046). The second open period for requesting public hearings associated with the January 17, 2012 (77 FR 2243),
Federal Register
publication ran from January 17, 2012, through February 16, 2012. We did not receive any requests for a public hearing during the two open periods.

Peer Review

In accordance with our Policy for Peer Review in Endangered Species Act Activities, published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which it occurs, and conservation biology principles. One peer reviewer responded and generally supported the revised proposed designation, and provided additional information, clarifications, and suggestions that we have incorporated, as appropriate, to improve this revised final critical habitat rule. Other potential reviewers that were contacted could not respond due to prior commitments and timing of the requested review relative to the Pacific Coast WSP field season. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review Comments

(1)
Comment:
The peer reviewer affirmed that the background information, essentially the biology of the Pacific Coast WSP, was well represented. Additional information was provided for the distribution of Pacific Coast WSP in Oregon. The reviewer suggested including sites in northern Oregon not covered under the State's habitat conservation plan (HCP), and that the sites should be considered collectively, as plovers move between them.

Our Response:
We appreciate the assessment of the revised proposed rule by the peer reviewer. We have identified all the areas we consider to have the physical or biological features essential to the conservation of the species or other areas we have determined to be essential for the conservation of the species as based on our criteria for designating critical habitat. Not all occupied sites were proposed as critical habitat. Some areas meeting the definition of critical habitat have been excluded from this revised final critical habitat designation under section 4(b)(2) of the Act (see Exclusions section for a detailed discussion). Those sites that we consider to have spatial significance to one another were grouped as subunits of a larger unit. The northern Oregon sites referenced by the reviewer were not included because of their relatively limited use by Pacific Coast WSP at this time and they were determined not to be essential.

The HCP with the Oregon Parks and Recreation Department (OPRD) is a landscape-level conservation planning effort. It was developed with the assistance of a multi-partner steering committee that reviewed the recovery plan and objectives, historical plover use, and existing habitat conditions, and selected the most appropriate locations for reestablishment of plover nesting habitat. In addition, the HCP went through extensive public review at both the State and Federal levels, and incorporated appropriate input from those processes.

(2)
Comment:
The peer reviewer agreed with the conservation benefit of

designating additional habitat for the Pacific Coast WSP. Specifically, the reviewer acknowledged that additional habitat is needed for connectivity between sites, and noted that the revised proposed rule leaves a 75-mile (mi) (121-kilometer (km)) gap between units on the north and south coasts of Oregon.

Our Response:
We appreciate the peer reviewer's critical review. Connectivity is not the only criterion used to select sites. We refer readers to our Criteria Used To Identify Critical Habitat section in the revised proposed rule (76 FR 16046; March 22, 2011). Selected sites must have regional importance, either for breeding or wintering Pacific Coast WSPs.

There are few additional suitable locations between Oregon's north and south coasts to designate as critical habitat. Sites were considered, but not proposed, due to habitat and development conditions that would adversely impact plovers were they to use the sites. Seventy-five miles is a relatively small gap in the range given that current gap between occupied habitat in Oregon and Washington is greater than 150 miles (241 km).

(3)
Comment:
The peer reviewer acknowledged the importance of addressing sea-level rise, but noted uncertainty regarding our ability to predict how Pacific Coast WSP will respond. In addition, the reviewer noted that we cannot adequately predict the response of Pacific Coast WSP prey sources to a rapidly changing beach environment that is compromised by years of beach stabilization and invasive, nonnative plants.

Our Response:
We agree that the response of Pacific Coast WSPs and their prey is difficult to predict (refer to
Climate Change
section above). Our models for sea-level rise are general in nature as they must represent the entire range of the Pacific Coast WSP in the United States. Consequently, site- and regionally-specific models are relevant when assessing specific effects on species and locations, but for the purposes of this evaluation, landscape-scale models were used to assist us in establishing unit boundaries.

There is inherent uncertainty associated with the parameters in the model; however, assumptions were selected that were generally conservative to best protect the species. Our assessment of sea-level rise in the revised proposed rule only addresses habitat, and does not attempt to address prey response, plover use, and site-specific shoreline armoring, as these are conditions or parameters that cannot be adequately represented across the range of the species.

Federal Agency Comments

Bureau of Land Management

(4)
Comment:
The Bureau of Land Management (BLM) in Arcata, California, noted that, as proposed, Unit 5 (Subunits A, B, and C) has expanded to the west, encompassing the intertidal zone. Yet the eastern boundary remains the same as in prior critical habitat designations. BLM commented that they understand the rationale for the westward expansion based on year-to-year changes to the beach environment and improved mapping, because of expected inundation resulting from sea-level rise. BLM noted that critical habitat would be better served with an expansion to the east.

Our Response:
Unit 5 primarily depicts mapping changes with improved information from the 2005 designation. We did not extend the unit to the east, as there is a dune crest that would separate such an eastern expansion from the ocean beach. Such a barrier would likely discourage Pacific Coast WSP use of the area, combined with the paved road that reaches the length of Humboldt Bay's South Spit. Similarly, there is a dirt road to the east side of the dune crest in subunit CA 5B that may also discourage Pacific Coast WSP use of any eastern expansion area there.

Department of the Army (U.S. Army Corps of Engineers)

(5)
Comment:
The U.S. Army Corps of Engineers (USACE) challenged the need for critical habitat designation of the intertidal zone, stating that Pacific Coast WSPs generally forage on wrack deposited at the maximum high water mark, and roost well above this line and are not found along the water's edge.

Our Response:
We agree that most foraging by Pacific Coast WSP on southern California beaches is associated with wrack; however, Pacific Coast WSP will use the intertidal areas. Use of intertidal areas may be greater where there is no offshore kelp beds to form well-developed wrack, such as in northern California, Oregon, and Washington. However, Pacific Coast WSPs have been documented foraging within the beach intertidal zone, and gathering food from both above and below the sand surface (Page
et al.
2009;
http://bna.birds.cornell.edu/bna/species/154/articles/foodhabits
).

In areas that do not have well-developed wrack, the intertidal zone may play a greater importance in plover foraging. Consequently, the intertidal zone is essential to Pacific Coast WSP's conservation, thereby meeting the standard for designation as critical habitat when there is an association with other features and primary constituent elements.

(6)
Comment:
The USACE commented that our approach to sea-level rise should be modified. The highest, high water boundary is recommended as a starting reference point. In addition, the USACE stated that the eastern boundary should not be established in areas that do not currently contain suitable habitat as a means to address sea-level rise.

Our Response:
The purpose of this revised critical habitat designation is to conserve the Pacific Coast WSP. Establishing a western boundary is difficult, but the “water's edge” is a boundary that is easily determined on the ground. We agree with the USACE that the water's edge is difficult to map, and will change with seasonal and daily tides, storm events, beach configuration, etc. Our maps and the inclusion of the intertidal zone are an attempt to address the water's edge issue and include the full range of habitat available to the Pacific Coast WSP.

We expanded critical habitat to the east from past designations to help ensure there will be adequate potential for habitat in the future as sea-level rise occurs. Not all habitat to the east is currently suitable, however, and we include in this critical habitat designation only those areas that we consider likely to be suitable with restoration. Not addressing the eastern expansion and only considering currently available habitat would limit the conservation value of a critical habitat designation as “coastal squeeze” occurs with a rise in sea level. Using elevations on the beach and adjusting them as sea-level rise occurs, as suggested by the USACE, makes it difficult for land and project managers to determine critical habitat boundaries.

(7)
Comment:
The USACE questioned the validity of the Pacific Coast WSP listing as threatened. Specifically, the agency provided an example of a snowy plover banded in Utah appearing at a coastal Orange County, California, site.

Our Response:
First, we note that the Service action at issue here does not concern whether or not the Pacific Coast WSP should be listed under the Act, but whether the Service should revise critical habitat for the species. Separate from this action, the Service is currently reviewing the listing status of the Pacific Coast WSP (see 76 FR 30377; May 25, 2011). For further discussion of listing issues, we direct the USACE to our 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607; April

21, 2006), where detailed information on the Pacific Coast WSP distinct population segment listing is available.

The report cited by the USACE documents a Utah-banded snowy plover at an Orange County beach during the nonbreeding season (project-related observation period was from September 27, 2009, to October 29, 2009) (Ryan and Hamilton 2009, unpublished report). Our understanding is that the snowy plover banding in Utah was done during the end of the breeding season, on July 22, 2009 (F. Bidstrup, pers. comm. 2012). Few, if any, snowy plovers are present in Utah during the nonbreeding season (Paton 1995, p. 277). Interior-nesting snowy plovers are migratory, and are well documented overwintering along the Pacific Coast (71 FR 20607; April 21, 2006). Generally, interior-nesting snowy plovers begin to appear along the Pacific Coast in mid- to late-July. In the 12-month finding, we cite instances of coastal-breeding snowy plovers nesting at interior sites, but acknowledge that this type of occurrence is rare based on banding records (71 FR 20607; April 21, 2006). This interchange in breeders accounts for the fact that there is little genetic difference between interior and coastal- breeding snowy plovers (71 FR 20607; April 21, 2006). Regardless, because the Pacific Coast WSP is generally a non-migratory population, and because it is ecologically separated from interior-nesting snowy plovers, it meets criteria for listing under our distinct population segment policy (71 FR 20607, April 21, 2006; 61 FR 4721, February 7, 1996) and the Act.

(8)
Comment:
The USACE stated that some of the areas proposed for designation as critical habitat do not meet the definition of critical habitat. Either the units are heavily used by recreational users, or are adjacent to disturbed areas. The commenter provided site-specific information where they believe designation is inappropriate due to beach nourishment projects at some units.

Our Response:
We have determined based on our criteria for designating critical habitat that all the areas designated in this rule are essential either to or for the conservation of the Pacific Coast WSP and meet the definition of critical habitat. However, within each critical habitat unit there may be some areas that do not contain the physical or biological features and therefore would not be considered critical habitat. Due to mapping constraints (
e.g.,
the scale of the unsuitable areas are too small to be reflected on our maps), we did not remove these areas from this final revised designation. The analysis of effects of dredging and beach nourishment on Pacific Coast WSPs and their habitat is part of the section 7 consultation process under the Act. Effects to designated critical habitat and non-designated areas that are affected by the Federal action will be assessed under that process, as well as other effects to Pacific Coast WSPs.

Disturbance by recreational users and other sources will also be evaluated through the section 7 process where there is a Federal nexus. For areas lacking a Federal nexus, the Service will work with beach and land managers to implement recovery actions that will avoid or offset adverse effects of disturbance. We consider disturbance to be relative, as Pacific Coast WSPs respond differently to disturbance between sites.

(9)
Comment:
The USACE commented that the maps were easier to follow in the 2005 designation than those in the 2011 revised proposed rule because the 2005 maps provided more detail relative to land marks, such as roads.

Our Response:
We appreciate this comment, and have made changes to the maps in this final rule. Specifically, the maps in this revised final rule have more location detail, such as roads, than we provided in the 2011 revised proposed rule. In remote areas where roads are scarce, we added watercourses. We acknowledge that watercourses are dynamic, and they can change with time, but they do provide some ability to locate unit boundaries on the ground.

Department of the Navy

(10)
Comment:
The Department of the Navy (Navy) commented that portions of two of their installations, Naval Support Area Monterey and Navy at Naval Base Ventura County, Port Hueneme, were included in the revised proposed rule, and requested they be exempted from critical habitat because both installations have an integrated natural resources management plan (INRMP).

Our Response:
An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. A Service-approved INRMP is required to exempt a facility from critical habitat designation (refer to section of this rule concerning military exemptions under section 4(a)(3)). In 2001, the Navy completed the INRMP for Naval Support Area Monterey, which includes approximately 8 ac (3 ha) in Unit CA 22, Monterey to Moss Landing. Although the 2001 INRMP was approved by the Service, we determined that it did not address management actions for western snowy plovers and therefore does not meet the requirements for exemption from critical habitat. On March 30, 2012, we received an addendum to the 2001 INRMP; this addendum detailed additional conservation measures the Navy will implement for the Pacific Coast WSP at Naval Support Area Monterey. We have reviewed the addendum and have concluded that the conservation measures identified in the addendum would provide a benefit to the Pacific Coast WSP and its habitat. We approved and signed this addendum on May 24, 2012. As a result we have exempted the approximately 8 ac (3 ha) from Unit CA 22 from the designation under section 4(a)(3) of the Act (see Exemptions section).

The Navy also identified that approximately 0.08 ac (0.03 ha) at Naval Base Ventura County, Port Hueneme, was included in the revised proposed rule. These lands were inadvertently included as part of Unit CA 39 in the revised proposed designation due to a mapping error. The identified 0.08 ac (0.03 ha) of Navy lands within Unit CA 39, Ormond Beach, have been removed in this revised final designation because they are unsuitable habitat and not essential to the conservation of the species.

National Park Service

(11)
Comment:
The National Park Service noted that critical habitat units for the Pacific Coast WSP were proposed within several units of the National Park system, including: Channel Islands National Park; Golden Gate National Recreation Area; Point Reyes National Seashore; Redwood National and State Parks; and Lewis and Clark National Historic Park. The National Park Service supports the proposed revised designation, and provided general information regarding its management for Pacific Coast WSP at its facilities.

Our Response:
We appreciate the National Park Service's comments. No response necessary.

U.S. Forest Service

(12)
Comment:
The U.S. Forest Service (USFS), Siuslaw National Forest, Oregon, provided information regarding use and boundary descriptions for Units OR 7, OR 8, and OR 9.

Our Response:
Lands covered under the OPRD HCP are excluded in this revised final rule. We note the USFS's comments; however, all units have changed with the exception of OR 8A, as a result of the exclusions. Federal lands remain unaffected by the OPRD

HCP exclusions, and remain in this final designation.

State Agency Comments

(13)
Comment:
The OPRD requested that all lands under its HCP be “exempted” (meaning “excluded”) under section 4(b)(2) of the Act, because the OPRD HCP provides adequate management protections, making designation of critical habitat on those lands covered by the HCP redundant.

Our Response:
Comment noted. In developing this final revised designation, we have considered OPRD's comments regarding exclusion of the HCP areas, and have conducted the analysis required under section 4(b)(2) of the Act to consider such exclusions (refer to the Exclusions section). As a result of our analysis, we have concluded that the benefits of excluding the lands covered under the OPRD HCP outweigh the benefits of including those areas as critical habitat and as a result the Secretary has used his discretion to exclude these areas under section 4(b)(2) of the Act.

(14)
Comment:
The California Department of Parks and Recreation (CDPR) provided site information throughout California and pointed out errors in the unit descriptions. CDPR believes some sites proposed for designation are inappropriate, due to disturbance, proximity to campgrounds, recreational off-road vehicle use, and presence of lifeguard facilities.

Regarding Oceano Dunes State Vehicular Recreation Area (SVRA), CDPR acknowledged that the critical habitat designation would have little effect on day-to-day operations of Oceano Dunes SVRA and would not affect management activities for the Pacific Coast WSP. However, CDPR also stated that a critical habitat designation would increase administrative costs and implied that a critical habitat designation would require restoration of degraded habitat in Oceano Dunes SVRA.

CDPR stated that designation of the “riding area” of Oceano Dunes SVRA as critical habitat would be inappropriate because the riding area is degraded, used for recreation, and unoccupied by the western snowy plover. CDPR requested that the riding and camping areas be excluded from the critical habitat designation under section 4(b)(2) of the Act, because those areas (1) do not contain the physical or biological features essential for the western snowy plover, and (2) are covered by a management plan that provides conservation value greater than what would be provided by a critical habitat designation.

Our Response:
The general comments from CDPR on the unit description errors were noted and incorporated into this revised final rule.

We agree with CDPR that a critical habitat designation should have little, if any, effect on day-to-day operations at Oceano Dunes SVRA and should not affect management activities for the Pacific Coast WSP unless a future project in Oceano Dunes SVRA would be authorized, funded, permitted, or carried out by a Federal agency.

We agree that portions of Oceano Dunes SVRA are degraded by recreation activities; however, habitat degradation does not preclude us from designating an area as critical habitat if the area contains physical or biological features essential to the conservation of the species and otherwise meets the definition of critical habitat. Also, annual surveys by CDPR and other groups have documented the species (in relatively large numbers) using Oceano Dunes SVRA in both breeding and wintering seasons. The use of areas for recreational activities does not preclude the use of the area by the Pacific Coast WSP. For example, the Silver Strand State Beach area identified as critical habitat (Unit CA 55B), as well as other high recreational use areas, plays an important role in Pacific Coast WSP conservation. We have determined that these areas are essential because they provide adequate space for high-tide roosting and foraging opportunities, especially during low human-use periods and during the winter. These areas may provide an even greater conservation value as habitat conditions shift and adaptive management strategies are implemented.

The DEA accompanying the proposed critical habitat rule determined that Oceano Dunes SVRA would incur some increase in administrative cost as a result of being included in critical habitat. These costs would be associated with coordination with a Federal agency during consultation under section 7 of the Act, additional analysis under California Environmental Quality Act (CEQA), or critical habitat analysis in the Oceano Dunes SVRA HCP. However, the DEA did not identify any disproportionate costs to the Oceano Dunes SVRA likely to result from a critical habitat designation.

The recovery plan for the Pacific Coast WSP (Service 2007) states that, because of the dynamic nature of western snowy plover habitat, the physical or biological features and specific primary constituent elements (PCEs) for the species may be seasonally variable or lacking. Accordingly, one or more PCEs may be absent during certain seasons. That said, a critical habitat unit is not required to contain all PCEs to qualify for designation. The implementing regulations for section 4 of the Act (50 CFR 424.12(d)) state that when several habitats, each satisfying the requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat. Portions of that inclusive area may not contain any or all PCEs. The Oceano Dunes SVRA is located within unit CA-31, and contains at least one PCE (open landscapes) year round, and may seasonally contain two other PCEs (frequency of inundation and organic debris). We have determined that Oceano Dunes SVRA plays an important role in conservation of the western snowy plover. That role may increase due to climate-related changes, including sea-level rise. We maintain that Oceano Dunes SVRA is essential to the conservation of the Pacific Coast WSP.

Lastly, we recognize that the CDPR intensively manages habitat for the Pacific Coast WSP at Oceano Dunes SVRA. We also recognize the difficult balance between the Oceano Dunes SVRA use-mandate and conservation of sensitive species. However, justification of exclusion from critical habitat is not solely based on conservation measures provided by a management plan but on how the benefits of exclusion from critical habitat compare to the benefits of inclusion. We recognize that the CDPR at Oceano Dunes SVRA have been implementing measures to conserve the Pacific Coast WSP and conditions have improved somewhat for the Pacific Coast WSP in critical habitat unit CA-31. We value our current partnership with the CDPR in conserving sensitive species and their habitats; however, after considering the relevant impacts being incurred by the Pacific Coast WSP, we did not conclude that the benefits of excluding Oceano Dunes SVRA lands in unit CA-31 outweigh the benefits of including those lands as critical habitat. In addition, as mentioned in the CDPR comment letter, the CDPR is experiencing severe funding limitations. Consequently, the CDPR may not be able to guarantee that the Oceano Dunes SVRA management plan will be implemented in the future. For these reasons, the Secretary is declining to exercise his discretion to exclude Oceano Dunes SVRA lands from unit CA-31.

Public Comments

The majority of the public comments we received were form letters regarding Oceano Dunes SVRA. The 104 form letters did not provide substantial

information, and were analogous to a “vote” not to designate critical habitat at Oceano Dunes SVRA. For information on our determination on critical habitat for the Oceano Dunes SVRA, please see
Comment
14 above.

(15)
Comment:
Several commenters proposed models other than the ones we used relative to sea-level rise. We also received comments challenging the likelihood of sea-level rise. Some commenters stated that sea-level rise could not be attributed to human-caused actions and that we should not be managing for an impact (
i.e.,
sea-level rise) that might not occur. Others commenters stated that there is no “global warming” occurring, and that the Service is not considering the best science available.

Our Response:
The Service considers climate change the single greatest conservation challenge of the 21st century, and as a result we have developed a draft strategic plan to address climate change (Service 2009, pp. 1-32). We acknowledge climate change is a complex issue, and there may be some uncertainty over all the causes and precise manifestations of climate change (see
Climate Change
section above). Given these uncertainties, one objective of this revised final rule is to identify and protect those habitats that we determine will provide resiliency for Pacific Coast WSP in the face of the effects of climate change on habitat. We will undoubtedly have to adapt management approaches as we learn more. We agree that Pacific Coast WPS management actions should stem the impacts of climate change where opportunities to do so exist.

We evaluated the models proposed by the commenters, and in some instances, we acknowledge that these models have more detail, often resulting from site-specific information. However, that site specificity could not be incorporated into a model that would assess the species' habitat rangewide because there is insufficient corresponding data from all sites across the entire range of the Pacific Coast WSP (
i.e.,
from Washington to the Mexican border in California). Other models proposed by commenters used different parameters than the models we employed, and thus, could not be used consistently. The models we selected reflected conditions across the range for the Pacific Coast WSP. Because we anticipated that use of models would be controversial, we chose to use those developed or accepted by the Department of the Interior.

We intentionally did not address the cause(s) for sea-level rise in our revised proposed rule (76 FR 16046; March 22, 2011), as it is subject to debate in many forums outside this critical habitat designation process. However, there are ample data to support that sea-level rise is occurring, and it will continue into the future. The models we used provide perspective on the extent and time at which we can expect sea-level rise to occur (refer to
Climate Change
section above).

(16)
Comment:
Two commenters questioned the need to list the Pacific Coast WSP as threatened.

Our Response:
As noted above in response to Comment 7, this finding does not address whether the Pacific Coast WSP should be listed, but rather concerns whether revisions should be made to critical habitat for the Pacific Coast WSP. See 71 FR 20607 (April 21, 2006) for information on the listing of the Pacific Coast WSP.

(17)
Comment:
Three commenters believe that we underestimate the impacts of predation, and overstate the effects of human-caused disturbance.

Our Response:
Predation is a leading cause of Pacific Coast WSP adult, chick, and egg mortality; however, the significance of predation varies by site. With the influx of common ravens to Santa Barbara, San Luis Obispo, Monterey, and Santa Cruz Counties to coastal habitat since the late 1990s, predation pressure has increased in some areas. Predator management, both nonlethal and lethal, has been effective at many sites. Predator management is generally considered a recovery action, outside the process for designating critical habitat (Page
et al.
2008, pp. 1-11).

Regarding human disturbance and effects to Pacific Coast WSP, there is a relationship between human beach use and predation. Disturbance associated with human beach use can result in Pacific Coast WSPs flushing from their nest. When this occurs, the birds leave tracks in the sand, and those foot tracks can lead predators to the nest and result in egg loss. Also, unmanaged or poorly managed trash associated with a variety of uses, including recreational use, can also attract potential predators to beach habitats. Gulls, ravens, and crows are known Pacific Coast WSP predators and are good examples of species that are attracted to areas with improper trash management practices. Outreach and education focusing on these human-associated concerns will assist in reducing predator interaction with the Pacific Coast WSP.

Pacific Coast WSPs can withstand some disturbance. Their tolerance to disturbance will vary by site (see our response to Comment 18 below), and may vary by the individual experience of a single bird. Disturbance can come from both predators and human-caused sources.

(18)
Comment:
Comments regarding the primary constituent elements (PCEs) were wide-ranging. Some commenters stated that the “minimal disturbance” element limited the Service's selection of potential units, while other commenters asserted that several units should not be designated due to too much disturbance. One commenter suggested that “minimal disturbance” is better considered under Special Management Considerations.

Our Response:
We generally consider that there are three generalized threats, or limiting factors, to conservation and recovery of the Pacific Coast WSP. Specifically, we consider limiting factors to conservation to be: (1) Predation; (2) habitat loss and degradation; and (3) disturbance. These three factors may vary in importance by site, and their sequence here should not indicate a priority or level of importance.

For the Pacific Coast WSP, there are natural and human-caused disturbances that affect the species and its habitat. Pacific Coast WSPs respond differently to disturbance depending on the type of disturbance, its frequency, and the timing of the disturbance. By way of example, breeding Pacific Coast WSPs appear to be more sensitive to disturbance than wintering plovers. Pacific Coast WSPs are more likely to flush from, or abandon, a nest during the early incubation stages. They are less likely to abandon a nest as eggs approach hatching, presumably because a significant time has been spent incubating and defending the nest. Human presence at isolated beaches on Vandenberg Air Force Base, for example, can result in Pacific Coast WSPs flushing at a greater distance than plovers at Oceano Dunes SVRA, where they are subject to greater disturbance and have the ability to “habituate.” Vandenberg and Oceano Dunes SVRA are only approximately 30 mi (48 km) apart. Consequently, disturbance is “relative” to site conditions. Minimal disturbance is a PCE because it is a component of a unit's suitability and should be considered in Pacific Coast WSP conservation, and therefore, in critical habitat designation. The amount, timing, and extent of disturbance may be best addressed as a special management consideration. We considered sites with a range of disturbance, and each site designated is regionally important.

(19)
Comment:
One commenter stated that the Service is constraining critical habitat protection by using criteria not

consistent with the Act. Specifically, use of criteria other than the PCEs limits the Service's ability to designate habitat.

Our Response:
Stating our selection criteria and methods is necessary for public disclosure (refer to
Methods Used to Designate Critical Habitat
and
Physical and Biological Features
sections). The selection criteria relate to how we determine where the PCEs, or elements of physical and biological features that are essential to the conservation of the Pacific coast WSP, are on the landscape. Therefore, our selection criteria define how we determined “essential areas” for designation of critical habitat.

(20)
Comment:
One commenter suggested that we include habitat buffers in our designation.

Our Response:
The Act does not provide for us to designate buffer habitat. We are directed by section 4 of the Act to designate only those specific areas determined to be either essential to or for the conservation of the species. The areas identified as critical habitat within units that are not occupied, and may be unsuitable at the present, still meet the definition of critical habitat as they will play a role in Pacific Coast WSP conservation as sea-level rise occurs. These areas are not considered buffers.

(21)
Comment:
One commenter raised issues with the increase in unit size on their lands from the 2005 designation. Other landowners that are within proposed critical habitat units, but have property at some distance from the water's edge, questioned the need to designate their properties as critical habitat for the Pacific Coast WSP.

Our Response:
In many instances, the units are wider in this rule than designated in 2005, because we anticipate sea-level rise and want to ensure there remains adequate critical habitat following inundation. It is difficult to determine where the effects of sea-level rise will be the most significant, because we expect beach morphology or habitat characteristics to change. Inland expansion of unit boundaries (generally eastward) beyond those in the 2005 designation are expected to offset potential adverse effects of sea-level rise.

Our maps and unit descriptions indicate a westward increase in unit boundaries for this rule in many cases. The inclusion of the intertidal zone is a function of better mapping and the updated National Agriculture Imagery (NAIP) used for this rule, as well as our desire to use the “water's edge” as a boundary. The intertidal zone plays an important role in providing the physical and biological features of most of the designated units. As a consequence, the intertidal zone is included in our designation where appropriate. Having the water's edge as the westward, or ocean-side boundary, gives a clear demarcation of the unit boundary when actually visiting the site.

Other expansions of unit boundaries beyond those in the 2005 designation occurred as a result of using new information that better identifies the physical or biological features essential to Pacific Coast WSP. Thus, the new unit boundaries were drawn using the best scientific information available to the Service.

(22)
Comment:
Two commenters believe the Service violated both the Act and Administrative Procedure Act by failing to adequately detail the difference in the revised proposed rule over the 2005 designation.

Our Response:
In the revised proposed rule, we outlined our methods and explained differences between the prior September 2005 final rule and the March 2011 revised proposed rule in the Summary of Changes From Previously Designated Critical Habitat section (76 FR 16054; March 22, 2011). We changed the methods used to designate critical habitat because of the need to address sea-level rise and provide conservation of the species and its habitat based on the 2007 Recovery Plan for the species. These changes resulted in the proposed revision to designated critical habitat and the proposed designation of additional areas as critical habitat, and in some cases, a proposed expansion in the size of areas designated in 2005.

We also reviewed the areas excluded from the 2005 final critical habitat designation based upon section 4(b)(2) of the Act. Our March 22, 2011, revised proposal of critical habitat did not include any proposed exclusions, but we did request public comment as to whether any specific areas being proposed as revised critical habitat should be excluded under section 4(b)(2) of the Act. Based on comments received on the 2011 revised proposed rule and our analysis conducted pursuant to the Act, in this revised final designation we have excluded several areas (see
Application of Section 4(b)(2) of the Act
and Exclusions sections below). Because of these exclusions and other modifications to various units, as described elsewhere in this rule, the areas included in this final revised critical habitat designation differ from those proposed in March 2011. The methodology and process used to calculate acreage was discussed in the proposed revised rule (and herein), and there has been no deviation from that process.

(23)
Comment:
Two commenters believed the Service violated the Administrative Procedure Act and the Act by failing to provide adequate notice of the extent of critical habitat. Specifically, commenters believe the maps provided in the revised proposed rule were inadequate.

Our Response:
The critical habitat maps are coarse, compared to detailed land ownership. However, the Geographical Information System (GIS) layers for the unit polygons were posted on the Arcata Fish and Wildlife Office Web site, and were available for downloading during the public comment periods. The availability of the GIS data complies with both the Administrative Procedure Act and the Act. We notified landowners, informing them that critical habitat was being proposed for designation on lands in coastal areas from Washington to southern California. Because of the scale of the revised proposed designation, some individual landowners may have been missed, but we made a good faith effort to reach all those that could be identified at the time of the proposal. We also were available upon request to go over maps as needed and were directly contacted by several landowners that sought clarification of ownership during the open public comment periods.

(24)
Comment:
Two commenters stated that the Service failed to adequately explain why retaining all previously designated critical habitat is essential.

Our Response:
By court settlement, the Service agreed to conduct a rulemaking to consider potential revisions to the 2005 critical habitat designation. Our
Methods
and
Criteria Used To Identify Critical Habitat
sections in the 2011 revised proposed rule explain how we selected areas essential to and for the conservation of the species. The methods applied in 2011 were similar to those used in the 2004 proposed rule and 2005 final rule. Each unit in this designation contains a description explaining how it meets the Act's definition and our criteria for designation as critical habitat.

Our revised final designation varies from the 2005 rule. There are exclusions and exemptions in this revised final rule that were not in the previous rule (refer to our sections on Summary of Changes from the Revised Proposed Rule).

(25)
Comment:
Two commenters suggested that the Service violated the Act by proposing units that were not occupied at the time of listing.

Our Response:
Critical habitat is defined under section 3 of the Act as (1) the specific areas within the

geographical area occupied by a species, at the time it was listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species, and (b) which may require special management considerations or protection; and (2) the specific areas outside the geographical area occupied by a species at the time it was listed, upon a determination that such areas are essential for the conservation of the species. Some units are designated based on this second prong; these units, such as WA 1, were not occupied at the time of listing but have been determined to be essential for the conservation of the species.

In addition, some units included in this designation may not be occupied year-round. However, they are essential for conservation because they constitute important wintering sites where breeding does not occur, or important breeding sites. Unit CA 9 is an example of a unit designated for its importance as wintering site.

Unit OR 12 is designated because, although it is unoccupied, it serves an essential role in conservation by connecting other units and thus facilitating Pacific Coast WSP movement from site to site depending on habitat availability, allowing additional foraging or wintering opportunities. This site is expected to play an important role as sea-level rise inundates other sites. The site is identified in the 2007 Recovery Plan as a recovery site.

(26)
Comment:
One commenter stated that the Service violated the Information (Data) Quality Act because the revised proposed rule is not clear regarding the science used to develop the rule.

Our Response:
The revised proposed rule, and this final revision to critical habitat, are in fact clear in describing the science used to develop the rule. In our
Background
and Critical Habitat
—Methods Used to Designate Critical Habitat
sections, we discuss the types of information used to develop the designation, as well as the models, mapping techniques, and other materials used to develop the revised proposed rule. We selected models and data that could be consistently used throughout the Pacific Coast WSP's range, and avoided site-specific models and data that would be more difficult to obtain.

(27)
Comment:
One commenter stated that the public should be able to review input from peer reviewers.

Our Response:
Peer review is conducted concurrently with the public comment period. Peer reviewers are provided the same information as the public; however, because of their experience with the species or similar species, they are asked to provide a detailed review. Typically, their response is provided by the closing date of the public comment period; therefore, there is no opportunity for the public to comment on peer-review input. Peer-reviewer input has been summarized in this rule, but the full text is available upon request at the Arcata Fish and Wildlife Office (see
ADDRESSES
section).

(28)
Comment:
Some commenters provided Pacific Coast WSP use information for sites that were not proposed for designation. Specifically, sites in Oregon and the Monterey Bay region of California were referenced. Commenters felt that the Service did not fully consider all sites, stating that the omitted sites provide connectivity and thus value to critical habitat.

Our Response:
We proposed sites that have regional and rangewide importance. Many sites in northern California have comparatively little Pacific Coast WSP use relative to sites both to the north and to the south. However, we are designating those sites because of the large gap in breeding and wintering Pacific Coast WSPs from southern Sonoma County, California, to New River in Oregon. The fluctuation in the breeding population and the connectivity value of the sites within a large gap in the Pacific Coast WSP's range justifies their inclusion in designation.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species.

(29)
Comment:
A commenter in Washington expressed concern that beach nourishment at Shoalwater Bay by the USACE would impact designated critical habitat. Additional, detailed information was provided by another commenter during the second comment period for the same unit, related to the USACE's beach nourishment project.

Our Response:
These comments raise issues related to section 7 of the Act, which requires that Federal agencies ensure that their actions do not jeopardize species or adversely modify or destroy designated critical habitat. If the USACE engages in beach nourishment projects at Shoalwater Bay, such actions may require consultation with the Service to determine the project's effects on Pacific Coast WSP and on designated critical habitat (refer to Effects of Critical Habitat Designation—
Section 7 Consultation
).

(30)
Comment:
Private landowners from all three States raised concerns that designation of critical habitat on their property would prevent use of their land and adjacent land. Several believe the designation would increase regulation and curtail development and enjoyment. Some municipalities expressed similar concerns.

Our Response:
A critical habitat designation may result in limitations to land use only in association with land use or management practices that require a Federal permit, Federal funding, or discretionary action by a Federal agency (
i.e.,
a Federal nexus). If a project requires such Federal involvement, then the action and its effects to the Pacific Coast WSP and its designated critical habitat would be evaluated under section 7 of the Act (refer to Effects of Critical Habitat Designation—
Section 7 Consultation
). Actions that do not have a Federal nexus may continue, provided there is no take of Pacific Coast WSPs. If take of Pacific Coast WSPs is anticipated, an individual may seek an incidental take permit from the Service for the Pacific Coast WSP on the lands where the action is to occur. The designation of critical habitat does not affect a non-Federal action.

(31)
Comment:
Two commenters reported on the importance of certain sites in Sonoma County, California, specifically Salmon Creek Beach and Doran Spit.

Our Response:
We agree that the Salmon Creek Beach and Doran Spit sites are important to Pacific Coast WSP conservation. However, their overall importance relative to other sites within Recovery Unit 4 (refer to the Recovery Plan; Service 2007) is not as great. Breeding is variable at both Salmon Creek Beach and Doran Spit, as well as at more northern sites (
e.g.,
CA 8, Manchester Beach). Monitoring of the sites will continue, and the Service will work with beach managers to implement appropriate recovery actions that will further conservation of the Pacific Coast WSP at these sites.

(32)
Comment:
Four commenters questioned why critical habitat was not proposed for Ocean Beach, Pacifica State Beach, and Gazos Creek in San Francisco and San Mateo Counties. Commenters also expressed the importance of Laguna Creek State Beach and Seabright State Beach, noting their collective importance.

Our Response:
We agree that these sites are important to Pacific Coast WSP

conservation. However, the potential of these sites as breeding areas is lower than that of the sites we designated for breeding (see the
Criteria Used To Identify Critical Habitat
section below) (Service 2007, pp. B9-B12; Service 2011, p. 16053). Similarly the numbers of wintering birds supported by the suggested sites is lower than that of the sites we designated for wintering alone, and wintering needs are also met by many of the sites designated for breeding. The suggested areas also do not strongly advance the goals of increasing diverse habitat, maintaining connectivity, or utilizing restored areas for plover conservation. However, monitoring of the suggested sites will continue, and we will work with beach managers to implement appropriate recovery actions that will further conservation of the Pacific Coast WSP at these sites.

(33)
Comment:
One commenter “petitioned” for exclusions under section 4(b)(2) of the Act for both Oceano Dunes SVRA, and a 4-ac (2-ha) area near Sand City, California.

Our Response:
Although there is no 4(b)(2) petition process for exclusions of areas from designation of critical habitat, we have considered the comment in terms of whether Oceano Dunes SVRA and Sand City sites should be excluded from this designation. The commenter cited economic considerations in support of exclusion; these were addressed in the final economic analysis (FEA) for the revised proposed rule (refer to the Exclusions section below). The FEA did not identify any disproportionate costs associated with designation of critical habitat at either Oceano Dunes SVRA or the Sand City sites (refer to our response to Comment 14 above, and to “Exclusions based on Economic Impacts” below), and consequently, these sites were not considered for economic exclusions. Moreover, in order for lands to be excluded under section 4(b)(2) of the Act, the benefits of excluding the area must outweigh the benefits of including those lands as critical habitat. In this case, the benefits of excluding the “petitioned” lands do not outweigh the benefits of including those lands (for instance section 7 and 10 obligations under the Act; increased public awareness of Pacific Coast WSP habitat, and potential indirect oversite by State and local governments) in this final revised designation.

(34)
Comment:
Three commenters requested exclusions or partial exclusions to Units CA 38, CA 39, and CA 41 because they believe those areas do not contain the PCEs due to disturbance.

Our Response:
Refer to our response to Comment 8 above. Our response to Comment 17 also addresses disturbance.

Comments on the Draft Economic Analysis

Comments on Development

(35)
Comment:
Several commenters expressed concern that the designation of critical habitat within the Sand City coastal zone in Unit CA 22 will create regulatory uncertainty with associated costs for future development projects in the area. Additionally, the California Coastal Commission (CCC) may view the designation of critical habitat as “overriding” the previously approved Sand City local coastal plan (LCP), which allows for the development of two coastal resorts. If these projects do not move forward, jobs and tax revenue that would have been generated by the developments would be lost.

Our Response:
As stated in section 4.2.2 of the FEA, we acknowledge that incremental indirect impacts resulting from future litigation or increased scrutiny from State agencies may include denial of development permits for the Sterling-McDonald and Security National Guaranty (SNG) sites in Sand City, Unit CA 22. Due to uncertainty surrounding the likelihood and extent of such indirect impacts, we are unable to quantify any potential impacts. Specifically, such a calculation requires information about both the probability that current development plans will be affected and the magnitude of impacts, neither of which can be determined at this time, nor directly attributed to the critical habitat designation. The commenter provides estimates of total revenues anticipated to be generated by these projects; however, assuming total loss of these revenues implies that such an impact will occur with 100 percent certainty. It is possible, based on recent litigation concerning the site and limits to the CCC's authority to amend the previously approved local coastal program, development will move forward as planned and not be affected by the designation. Therefore, this analysis does not attempt to quantify these impacts, but notes that such impacts are possible and, if they occur, would be an incremental result of critical habitat designation.

(36)
Comment:
One commenter expressed concern that the SNG development site in Sand City, CA (Unit CA 22), is vulnerable to indirect incremental impacts of the designation. The commenter stated that if critical habitat were designated in this previously excluded area, the development project would be subject to further administrative burden related to review by the CCC. The commenter expressed concern that critical habitat may be used by the CCC or other agencies as a further reason to deny a coastal development permit or other approval, resulting in increased litigation and associated costs.

Our Response:
The DEA and FEA acknowledge the potential for increased indirect impacts to SNG due to the designation of critical habitat. The FEA notes that such indirect impacts are possible, and if they occur, may be an incremental result of critical habitat designation. However, as explained in section 4.2.2 of the FEA, we do not quantify these impacts due to considerable uncertainty surrounding the probability that the development permits will be denied or that the development will face legal action due to the designation of critical habitat. To this point, the commenter provides documentation suggesting that denial of a permit by CCC could be illegal in light of recent court decisions. An assumption that development will not proceed at the site as planned is thus highly speculative.

(37)
Comment:
One commenter requested clarification of the meaning of the phrase “land's option value for development,” as used in section 4.2.2, paragraph 148, and in Exhibits ES-4 and 4-4, of the DEA.

Our Response:
The FEA incorporates clarifying language in section 4.2.2. “Option value” refers to the fact that land values incorporate an expectation of residential or commercial development, in terms of likelihood and timing, and the associated returns to the landowner.

(38)
Comment:
In the context of the indirect impacts to SNG development, a commenter stated that it is not helpful or meaningful to characterize economic impacts as indirect because the term may suggest that indirect impacts are of lesser magnitude than direct impacts.

Our Response:
As described in section 2.4.2 of the FEA, the designation of critical habitat may, under certain circumstances, affect actions that do not have a Federal nexus and thus are not subject to the provisions of section 7 under the Act. Indirect incremental impacts are those unintended changes in behavior that may occur outside of the Act, through other Federal, State, or local actions, and that may be caused by the designation of critical habitat. The FEA does not intend to diminish the magnitude of such impacts by calling them indirect. The FEA may not quantify indirect impacts in some instances due to the considerable

uncertainty surrounding their likelihood and magnitude.

(39)
Comment:
One commenter requested that the Service utilize the estimate of economic impacts for Unit CA 22 contained in the 2005 economic analysis when making a decision to exclude units from critical habitat designation under section 4(b)(2) of the Act.

Our Response:
The 2005 economic analysis was developed under a co-extensive framework, which considered and quantified both baseline costs, as well as incremental impacts of the designation. As described in sections 2.1 and 2.2 (as well as in Exhibit 2-1), the 2011 DEA distinguishes the incremental costs of designation from baseline costs, whereas the 2005 economic analysis evaluated all Pacific Coast WSP (baseline and incremental) conservation costs collectively. That is, the impacts estimated in the 2005 Economic Analysis captured costs of Pacific Coast WSP conservation regardless of whether they resulted specifically from critical habitat designation or from other Federal, State, or local regulations. The 2011 DEA instead characterizes all potential future Pacific Coast WSP conservation as either baseline (expected to occur even without the designation of critical habitat) or incremental (expected to occur only if critical habitat is designated). The FEA qualitatively discusses baseline Pacific Coast WSP conservation and quantifies the incremental impacts.

The identification and estimation of incremental impacts is consistent with direction provided by the Office of Management and Budget (OMB) to Federal agencies for the estimation of the costs and benefits of Federal regulations (see OMB, Circular A-4, 2003). It is also consistent with several recent court decisions, including
Cape Hatteras Access Preservation Alliance
v.
U.S. Department of the Interior,
344 F. Supp. 2d 108 (D.D.C.);
Center for Biological Diversity
v.
U.S. Bureau of Land Management,
422 F. Supp. 2d 1115 (N.D. Cal. 2006);
Home Builders Association of Northern California
v.
United States Fish and Wildlife Service,
616 F.3d 983 (9th Cir. 2010), cert. denied, 179 L. Ed 2d 301, 2011 U.S. Lexis 1392, 79 U.S.L.W. 3475 (2011); and
Arizona Cattle Growers
v.
Salazar,
606 F. 3d 1160 (9th Cir. 2010), cert. denied, 179 L. Ed. 2d 300, 2011 U.S. Lexis 1362, 79 U.S.L.W. 3475 (2011). These decisions found that estimation of incremental impacts stemming solely from the designation is proper.

(40)
Comment:
One commenter asserted that additional administrative burden and project modifications are necessary under the Act for a USACE beach nourishment project in subunit WA 3B due to the Pacific Coast WSP's recent colonization of subunit WA 3B.

Our Response:
The FEA includes the estimated administrative cost of section 7 consultation related to this beach nourishment project in subunit WA 3B. As described in section 4.2.5 of the FEA, due to the designation of critical habitat, this project's previous informal consultation will need to be reinitiated in 2012, to consider the adverse modification standard. This project is short-term and occurs in a critical habitat unit occupied by the Pacific Coast WSP, but could have permanent impacts on critical habitat. The analysis assumes that no project modifications would be necessary to avoid adverse modification of critical habitat in addition to what has already been proposed to reduce impacts to the Pacific Coast WSP. However, until the section 7 analysis is complete, it remains unknown if an adverse modification determination will be the resultant outcome.

(41)
Comment:
Although the revised critical habitat does not overlap any areas currently used for recreation in subunit CA 55B (Coronado Beach), a commenter expressed concern that the designation of critical habitat could impact future recreation activities in the subunit. These activities included lifeguarding activities, beach access, and construction of a bike path and pedestrian trail. The commenter also expressed concern that a popular dog beach north of the critical habitat designation in subunit CA 55B could be affected by critical habitat.

Our Response:
If there is a Federal nexus, the future construction of a bike path and pedestrian trail could result in section 7 consultation with the Service if the project may affect Pacific Coast WSPs or designated critical habitat. Costs associated with this consultation have been added to section 4.2.1 of the FEA; however, these costs would be incurred only if activities are subject to a Federal nexus. Because subunit CA 55B is considered occupied by the Pacific Coast WSP and these projects are considered long-term activities, the incremental impacts associated with these projects are limited to the administrative cost of addressing the adverse modification standard during consultation.

The lifeguard facilities and activities are not part of a Federal action, and therefore, would not involve an adverse modification analysis for critical habitat under section 7 of the Act. As the dog beach to the north of subunit CA 55B is not part of this designation as critical habitat, the FEA does not consider impacts to activities occurring at this beach.

Comments on Recreation

(42)
Comment:
A commenter stated that if the open riding and camping area of Oceano Dunes SVRA was to be restored to support the PCEs identified in the revised proposed critical habitat rule, there would be substantial adverse economic impacts. The commenter asserted that restoration of PCEs in this area would require eliminating camping and off-highway vehicle (OHV) riding opportunities in 563 ac (228 ha), or approximately one third of the area currently open to riding.

Our Response:
Activities at Oceano Dunes SVRA are not currently subject to a Federal nexus. Because critical habitat only applies to activities implemented by a Federal agency or that require Federal authorization or funding, we do not expect the operations of the park to change due to critical habitat designation. As noted in section 4.2.1 of the FEA and Exhibits ES-4 and 4-4, indirect impacts to Oceano Dunes SVRA are possible, but the analysis does not quantify the impacts due to considerable uncertainty surrounding the probability that the CCC will alter its current permit or Oceano Dunes SVRA will face legal action due to the designation of critical habitat. The FEA notes, however, that such impacts are possible, and if they were to occur, they would be considered incremental results of the designation.

(43)
Comment:
One commenter asserted that the revised proposed critical habitat rule fails to consider the economic impacts of this rule on operations and recreational opportunities in Oceano Dunes SVRA. The commenter expressed concerns that the revised critical habitat designation could result in significant delays to crucial visitor-service efforts or resource management efforts, including the placement of new restrooms, restoration of sensitive vegetation islands, and regular maintenance of perimeter fence to prevent trespass of vehicles into closed areas or adjacent private property. The commenter asserted that the additional time necessary to undertake section 7 consultation could jeopardize projects, jeopardize project funding, and result in significant loss of recreational opportunities in Oceano Dunes SVRA. Loss of recreational opportunities would, in turn, result in significant loss of income for local businesses and the local economy. Two commenters submitted an economic analysis prepared for the California

Department of Parks and Recreation, Off Highway Motor Vehicle Recreation Division, estimating the overall economic contribution of Oceano Dunes SVRA to be $171 million annually.

Our Response:
Our analysis notes in section 4.2.1 of the FEA and in Exhibits ES-4 and 4-4 that reducing or eliminating the area available for riding at Oceano Dunes SVRA would result in welfare losses and regional economic impacts. Beach users would incur social welfare losses due to forgone trips or a diminished beach experience (for example, due to crowding). In addition, regional economic impacts arise due to reductions in beach recreation-related expenditures caused by fewer recreation-related trips. The regional economic impacts that could result from reducing or eliminating the riding area would represent some portion of the $171 million annual economic impact of Oceano Dunes SVRA estimated by the commenter.

However, activities on Oceano Dunes SVRA are not currently subject to a Federal nexus. Therefore, the Service does not expect the operations of the park to change due to critical habitat designation, nor does it expect administrative impacts (or delays) associated with undertaking section 7 consultation. As we note in section 4.2.1 of the FEA and in Exhibits ES-4 and 4-4, indirect impacts to Oceano Dunes SVRA are possible, but the analysis does not quantify the impacts due to considerable uncertainty surrounding the probability that the CCC will alter its current permit or that Oceano Dunes SVRA will face legal action due to the designation of critical habitat. In addition, the area within Oceano Dunes SVRA within Unit CA 31 is occupied by both breeding and wintering Pacific Coast WSP, and as a result any project modifications that may take place would be a result of having to avoid take of the species and not because of the designation of critical habitat and would be considered baseline impacts of the designation.

(44)
Comment:
A commenter expressed concern that the designation of critical habitat could impact beach management activities, tourism, and, in turn, tax revenues in the City of Santa Barbara.

Our Response:
Section 4.2.2 of the FEA describes expected economic impacts related to dredging and beach nourishment projects in Unit CA 35, Santa Barbara Beaches. This section acknowledges the potential for administrative impacts to semi-annual beach management activities caused by the designation of critical habitat for the Pacific Coast WSP. Beach nourishment projects in this unit are not likely to incur incremental project modifications, as they are short-term and temporary in nature. As Unit CA 35 is occupied by the Pacific Coast WSP, any project modifications proposed in this unit would be due to the presence of the Pacific Coast WSP and are considered baseline impacts of the designation. Therefore, the designation of critical habitat is not expected to impact beach access, tourism, or tax revenues in the City of Santa Barbara.

(45)
Comment:
One commenter expressed concern that the designation of critical habitat on Los Angeles County beaches (CA 43, CA 44, CA 45A-D) could impact future recreational activities and daily maintenance operations, such as beach raking and sanitizing sandy beaches, collecting trash, cleaning restroom facilities, and maintaining volleyball courts.

Our Response:
Unless such recreational and maintenance activities are subject to a Federal nexus, as defined under the section titled Effects of Critical Habitat Designation, we do not expect these activities to be affected by designation of critical habitat on Los Angeles County beaches.

Comments on Habitat Management

(46)
Comment:
One commenter asserted that inclusion of proposed units OR 1, OR 2, OR 3, OR 5, and OR 11 generates additional stress on the Oregon Parks and Recreation Department (OPRD) when applying for Federal grants to execute habitat management projects for the plover by creating a Federal nexus where one did not previously exist. The commenter asserted that this Federal nexus needlessly belabors efforts to improve habitat for the plover and forces OPRD and the Service to expend additional staff time addressing items that have already been accounted for in the habitat conservation plan (HCP) process.

Our Response:
As stated in the footnote to Exhibit 3-2 of the FEA, and as delineated in Table 3 below, Units OR 1, OR 2, OR 3, OR 4, OR 5, OR 6, OR 12, and OR 13 are considered unoccupied and consultation with the Service would not occur absent critical habitat designation. Unit OR 11 is considered occupied by the Service and therefore, if a Federal nexus exists, consultation may be necessary to address project impacts to the species as well as critical habitat. In the unoccupied units, costs of addressing critical habitat effects during consultation and all administrative costs of consultation are considered incremental impacts of the designation, regardless of activity duration or the permanency of habitat impacts. Following this methodology, the FEA forecasts costs in Units OR 1 and OR 3 associated with future jetty repair as incremental impacts of the designation. For Units OR 2 and OR 5, we do not foresee projects in these areas, and no specific planned or ongoing projects were identified by the commenter. Therefore, the FEA does not quantify additional impacts related to future OPRD habitat management projects.

Note that most areas covered by OPRD's HCP have been excluded from the revised final critical habitat designation. Consequently, Federal grants obtained by the State and other entities to conduct habitat restoration or other actions in the excluded areas will not require a section 7 critical habitat analysis, unless those activities are to occur in areas not specifically excluded (
i.e.,
within designated critical habitat).

(47)
Comment:
One commenter stated that proposed units CA 55E and CA 55G are managed under the San Diego Bay INRMP, a joint INRMP between the U.S. Navy Southwest Division and the San Diego Unified Port District (Port of San Diego), prepared in the year 2000. The commenter requested that these lands be exempted from critical habitat, similar to the exemption of military lands in the proposed rule.

Our Response:
As described under the section titled Exemptions, the Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. As a result to a 2004 amendment to the Act, section 4(a)(3)(B)(i) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” The Department of Defense (DOD) lands we identified as essential for the conservation of the Pacific Coast WSP within San Diego Bay have been exempted under section 4(a)(3)(B) of the Act. There are two INRMPs covering Navy land in south San Diego County (2002 Naval Base Coronado INRMP and 2000 San Diego Bay INRMP). All exemptions of Navy lands, including those within San Diego Bay, were based

on the 2002 Naval Base Coronado INRMP (see Exemptions section). The Port of San Diego owns non-DOD lands that are managed using the 2000 San Diego Bay INRMP. Because we have a well-established partnership with the Port of San Diego for Pacific Coast WSP conservation, in this final rule we have excluded, under section 4(b)(2) of the Act, the critical habitat within the plan area that is managed by the Port of San Diego (Subunits CA 55E and CA 55G) (see Exclusions section).

Summary of the 2005 Rule

On September 29, 2005 (70 FR 56970), we designated approximately 12,150 ac (4,922 ha) as critical habitat for the Pacific Coast WSP. We included 32 units within Washington, Oregon, and California. The unit breakdown by State is as follows: Washington, 3 units (2,526 ac (1,023 ha)); Oregon, 5 units (2,147 ac (869 ha)); and California, 24 units (7,477 ac (3,026 ha)). During our comparison of the 2005 final critical habitat designation and this revised final designation, we discovered that the acreage totals for some units or areas were in error. The totals for areas for the 2005 rule identified within this rule are the correct totals.

Summary of Changes From the Revised Proposed Rule

On March 22, 2011 (76 FR 16046), we proposed to designate 28,261 ac (11,436 ha) of critical habitat for the Pacific Coast WSP in 68 units. On January 17, 2012 (77 FR 2243), we reopened the comment period and made changes to our March 22, 2011, revised proposed rule. Specifically, we announced the availability of the draft economic analysis on our March 22, 2011, revised proposed critical habitat rule (76 FR 16046); identified the taxonomic and nomenclature change for the Pacific Coast WSP; proposed to exempt Vandenberg Air Force Base under provisions in section 4(a)(3) of the Act due to their newly approved INRMP; and proposed changes to Unit CA 46: Bolsa Chica State Beach and Bolsa Chica Reserve. The most significant changes between the March 22, 2011, and January 17, 2012, revised proposed rule and this revised final rule are outlined in Table 2 below and include:

(1) In the document announcing the availability of the DEA (77 FR 2243; January 17, 2012), we stated we were considering exempting the Department of Defense (DOD) lands at Vandenberg Air Force Base (AFB) within Units CA 32 and CA 33 from the designation of critical habitat based on the April 14, 2011, approved INRMP, which contains conservation measures that protect the Pacific Coast WSP. We have determined that the actions being implemented through the Vandenberg AFB INRMP provide a benefit to the Pacific Coast WSP, and therefore, we are exempting approximately 1,135 ac (459 ha) of DOD land in Units CA 32 and CA 33 under section 4(a)(3) of the Act. For a complete discussion of exemptions under section 4(a)(3) of the Act, see Exemptions section below.

(2) During the public comment period on the proposed rule, we received information from the Navy that approximately 8 ac (3 ha) of DOD lands were included in the revised proposed critical habitat within Unit CA 22 in Monterey County, California. The Navy submitted an amended INRMP for these lands. We have reviewed the amended INRMP and have determined that it provides conservation benefits for the Pacific Coast WSP and its habitat. We have exempted the 8 ac (3 ha) of DOD lands from the designation under section 4(a)(3) of the Act, see Exemptions section below.

(3) We finalized our exclusion analysis under section 4(b)(2) of the Act. Approximately 3,797 ac (1,537 ha) of habitat are excluded from the revised final critical habitat designation based on this analysis. This represents approximately 16 percent of the habitat that was proposed. See the Exclusions section, below, for more information. Approximately 425 ac (172 ha) of tribal lands are excluded from subunit WA 3B, including all land under the jurisdiction of the Shoalwater Bay Tribe. Another 3,309 ac (1,339 ha) of critical habitat is being excluded under the Oregon Parks and Recreation Department Habitat Conservation Plan, City of San Diego Subarea Plan (under the Multi-Species Conservation Plan) and the Carlsbad Habitat Management Plan (under the Multi-species Habitat Conservation Plan). An additional 63 ac (25 ha) of Port of San Diego managed lands within subunits CA 55E and CA 55G are being excluded based on a management plan for the Pacific Coast WSP and our partnership with the Port. We determined that excluding these lands would not result in extinction of the Pacific Coast WSP, and that the benefits of excluding these lands outweigh the benefits of including them. Consequently, the Secretary is exercising his discretion to exclude approximately 3,797 ac (1,537 ha) of land in Washington, Oregon, and California under section 4(b)(2) of the Act. For a complete discussion of exclusions under section 4(b)(2) of the Act, see Exclusions section below.

(4) Based on comments received by the USACE and the public, we revised Unit CA 46, Bolsa Chica State Beach (subunit CA 46A), and Bolsa Chica Reserve (subunits 46E and 46F). The Unit was revised to include approximately 471 ac (191 ha), a net decrease of approximately 34 ac (14 ha) from the proposal. As described in our January 17, 2012,
Federal Register
notice, the new areas identified better reflect lands essential to the Pacific Coast WSP (77 FR 2243).

(5) We received information from the Willapa National Wildlife Refuge (NWR) during development of this final rule regarding habitat suitability to the Pacific Coast WSP at the refuge, and the extent of Federal jurisdiction. As a result, we modified the unit boundaries for WA 4A, Leadbetter Spit. In the March 2011 proposed rule, WA 4A was identified as having 2,463 ac (997 ha) of habitat meeting criteria for designation as critical habitat (76 FR 16046). Federal jurisdiction goes to ordinary high tide line. The acreage estimate under the proposed rule was incorrect, and the revised unit is approximately 125 ac (50 ha) smaller. In addition, the proposed rule did not account for acreage that was unlabeled in the parcel data, similar to the situation described in point (6) below (see Table 1). Within Subunit WA 4A, approximately 1,713 ac (693 ha) are managed by Washington State and 987 ac (399 ha) are on Willapa National Wildlife Refuge (Federal).

Similarly, Shoalwater Bay Tribe Reservation lands included in Unit WA 3B, Shoalwater/Graveyard Spit, were miscalculated in the revised proposed rule (76 FR 16046). Tribal lands have been recalculated to be 425 ac (172 ha) in this revised final rule, all of which are excluded from designation under 4(b)(2) of the Act (see Exclusions section).

(6) During finalization of our critical habitat designation, we discovered inconsistencies in the calculation of some of the acreages for proposed units. The inconsistencies resulted from calculations based on parcel data (
i.e.
ownership data), which do not contain the intertidal zone and other lands managed by the California State Lands Commission (and the similar agency for Washington). Consequently, those acres were not included in the unit acreage totals in the proposed revised rule. Table 1 lists the affected units.

Maps in the proposed revised rule for the affected units in Table 1 accurately depict the intended unit boundaries, including the unlabeled lands managed by the California State Lands Commission and the State of Washington (76 FR 16046). In addition, our methods discussion in this final revision reflects our decision to use the

water's edge as the westward or ocean-side unit boundary (refer to our
Methods Used to Designate Critical Habitat
section, and our response to Comment 4 in the Summary of Comments and Recommendations section). This revised final designation includes the intertidal zone and other lands managed by state land commission agencies. Therefore, adequate notice has been provided regarding our intent to designate critical habitat for the Pacific Coast WSP to the water's edge.

(7) There were several discrepancies between text and tables in the 2005 final critical habitat rule for the Pacific Coast WSP (70 FR 56970). The information provided in this revised final rule is compared to the tables in the 2005 revised rule (see Table 2 below in this rule for comparison). Rounding error remains an issue, and may result in a difference in acreages between tables in this revised final designation and previous rules. However, these differences in acreages are small, and the data provided within this rule remain representative of our designation. Legal descriptions and GIS data layers are available at
http://www.fws.gov/arcata/es/birds/WSP/plover.html,
or upon request to the Arcata Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT
above).

Table 1—Units With Discrepancies From Parcel Data and Unit Boundary. The Difference in Acreage (Hectares) Is Reflected in Lands Under the Jurisdiction of the California State Lands Commission

Unit name

Proposed acres

ac (ha)

Total unit area
recalculated

ac (ha)

WA 4A Leadbetter Spit
2,463 (997)
2,700 (1,093)

CA 2 Gold Bluffs Beach
144 (58)
233 (94)

CA 3A Stone Lagoon
52 (21)
55 (22)

CA 3B Big Lagoon
212 (86)
268 (108)

CA 4A Clam Beach/Little River
194 (79)
337 (136)

CA 5A Humboldt Bay South Spit
419 (170)
572 (231)

CA 5B Eel River North Spit and Beach
259 (105)
464 (188)

CA 6 Eel River Gravel Bars
1,139 (461)
1,349 (546)

CA 7 MacKerricher Beach
1,176 (476)
1,218 (493)

CA 8 Manchester Beach
482 (195)
505 (204)

* Values in table may not sum due to rounding.

Table 2—Changes Between the September 29, 2005, Pacific Coast WSP Revised Critical Habitat Designation; the March 22, 2011, and the January 17, 2012, Revised Proposed Designation; and This Revised Final Designation
[Acreage values are approximate and may not total due to rounding]

Critical habitat unit in this revised final rule

2005 Designation of
revised critical habitat in AC/HA

AC
HA
2011 and 2012 Revised proposed revisions to the critical habitat designation in AC/HA
AC
HA

2012 Revised final critical habitat designation in
AC/HA

AC
HA

Washington:

WA 1 Copalis Spit

407
165
407
165

WA 2 Damon Point
908
368
673
272
673
272

WA 3A Midway Beach
786
318
697
282
697
282

WA 3B Shoalwater/Graveyard Spit

1121
454
696
282

WA 4A Leadbetter Spit
832
337
2463
997
2700
1093

WA 4B Gunpowder Sands Island

904
366
904
366

Washington Totals
2526
1022
6265
2535
6077
2459

Oregon:

OR 1 Columbia River Spit

169
68
Excluded under 4(b)(2).

OR 2 Necanicum River Spit

211
85
11
4

OR 3 Nehalem River Spit

299
121
Excluded under 4(b)(2).

OR 4 Bayocean Spit
207
84
367
149
201
82

OR 5 Netarts Spit

541
219
Excluded under 4(b)(2).

OR 6 Sand Lake South

200
81
5
2

OR 7 Sutton/Baker Beaches
260
105
372
151
276
112

OR 8A Siltcoos Breach
8
3
15
6
15
6

OR 8B Siltcoos River Spit
527
213
241
97
116
47

OR 8C Dunes Overlook/Tahkenitch Creek Spit

716
290
383
155

OR 8D North Umpqua River Spit

236
95
59
24

OR 9 Tenmile Creek Spit
235
95
244
99
223
90

OR 10 Coos Bay North Spit
278
113
308
125
273
111

OR 11 Bandon to New River
632
256
1016
411
541
219

OR 12 Elk River Spit

167
68
Excluded under 4(b)(2).

OR 13 Euchre Creek Spit

116
47
9
4

Oregon Totals
2147
869
5218
2112
2112
855

California:

CA 1 Lake Earl
57
24
74
30
74
30

CA 2 Gold Bluffs Beach

144
58
233
94

CA 3A Stone Lagoon

52
21
55
22

CA 3B Big Lagoon
280
113
212
86
268
108

CA 4A Clam Beach/Little River
155
63
194
79
337
136

CA 4B Mad River Beach
377
153
456
185
452
183

CA 5A Humboldt Bay South Spit
375
152
419
170
572
231

CA 5B Eel River North Spit and Beach
283
114
259
105
464
188

CA 5C Eel River South Spit and Beach
402
163
339
137
336
136

CA 6 Eel River Gravel Bars
1193
483
1139
461
1349
546

CA 7 MacKerricher Beach
1048
424
1176
476
1218
493

CA 8 Manchester Beach
341
138
482
195
505
204

CA 9 Dillon Beach

39
16
39
16

CA 10A Point Reyes
462
187
460
186
460
186

CA 10B Limantour
124
50
156
63
156
63

CA 11 Napa-Sonoma

618
250
618
250

CA 12 Hayward

1
0
1
0

CA 13A Eden Landing

237
96
237
96

CA 13B Eden Landing

171
69
171
69

CA 13C Eden Landing

609
246
609
246

CA 14 Ravenswood

89
36
89
36

CA 15 Warm Springs

168
68
168
68

CA 16 Half Moon Bay
37
15
36
15
36
15

CA 17 Waddell Creek Beach
9
4
25
10
25
10

CA 18 Scott Creek Beach
19
8
23
9
23
9

CA 19 Wilder Creek Beach
10
4
15
6
15
6

CA 20 Jetty Road to Aptos

399
161
399
161

CA 21 Elkhorn Slough Mudflats
281
114
281
114
281
114

CA 22 Monterey to Moss Landing

967
391
959
388

8 ac (3 ha) exempt under 4(a)(3).

CA 23 Point Sur Beach
61
25
72
29
72
29

CA 24 San Carpoforo Creek

24
10
24
10

CA 25 Arroyo Laguna Creek

28
11
28
11

CA 26 San Simeon State Beach
28
11
24
10
24
10

CA 27 Villa Creek Beach
17
7
20
8
20
8

CA 28 Toro Creek

34
14
34
14

CA 29 Atascadero Beach/Morro Strand State Beach

213
86
213
86

CA 30 Morro Bay Beach

1076
435
1076
435

CA 31 Pismo Beach/Nipomo Dunes

1652
669
1652
669

CA 32 Vandenberg North

711
288
Exempt under 4(a)(3).

CA 33 Vandenberg South

424
172
Exempt under 4(a)(3).

CA 34 Devereaux Beach
36
15
52
21
52
21

CA 35 Santa Barbara Beaches

65
26
65
26

CA 36 Santa Rosa Island Beaches

586
237
586
237

CA 37 San Buenaventura Beach

70
28
70
28

CA 38 Mandalay Beach to Santa Clara River
350
142
672
272
672
272

CA 39 Ormond Beach
175
71
320
130
320
130

CA 40, CA 41 Mugu Lagoon
87
35
Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 42 San Nicolas Island

Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 43 Zuma Beach
68
28
73
30
73
30

CA 44 Malibu Beach

13
5
13
5

CA 45A Santa Monica Beach
25
10
48
19
48
19

CA 45B Dockweiler North
43
17
34
14
34
14

CA 45C Dockweiler South
24
10
65
26
65
26

CA 45D Hermosa State Beach
10
4
27
11
27
11

CA 46A Bolsa Chica State Beach
4
2
93
38
93
38

CA 46B Bolsa Chica Reserve

2
1
2
1

CA 46C Bolsa Chica Reserve
591
239
222
90
222
90

CA 46D Bolsa Chica Reserve

2
1
2
1

CA 46E Bolsa Chica Reserve

247
100
247
100

CA 46F Bolsa Chica Reserve

2
1
2
1

CA 47 Santa Ana River Mouth
13
5
19
8
19
8

CA 48 Balboa Beach

25
10
25
10

CA 49 San Onofre Beach-Marine Corps Base Camp Pendleton
49
20
Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 50A-C Batiquitos Lagoon
65
26
66
27
Excluded under 4(b)(2).

CA 51A-C San Elijo Lagoon Ecological Reserve

15
6
15
6

CA 52A San Dieguito Lagoon

4
2
4
2

CA 52B San Dieguito Lagoon

3
1
Excluded under 4(b)(2).

CA 52C San Dieguito Lagoon

4
2
Excluded under 4(b)(2).

CA 53 Los Penasquitos Lagoon
24
10
32
13
Excluded under 4(b)(2).

CA 54A Fiesta Island

2
1
Excluded under 4(b)(2).

CA 54B Mariner's Point

7
3
Excluded under 4(b)(2).

CA 54C South Mission Beach

38
15
Excluded under 4(b)(2).

CA 54D San Diego River Channel

51
21
Excluded under 4(b)(2).

CA 55A  orth Island
44
18
Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 55B Coronado Beach

74
30
74
30

CA 55C Silver Strand Beach

Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 55D Delta Beach

Exempt under 4(a)(3)
Exempt under 4(a)(3).

CA 55E Sweetwater Marsh National Wildlife Refuge and D Street Fill
128
52
132
54
79
32

CA 55F Silver Strand State Beach

82
33
82
33

CA 55G Chula Vista Wildlife Reserve

10
4
Excluded under 4(b)(2).

CA 55H Naval Radio Receiving Facility

66
27
Exempt under 4(a)(3).

CA 55I San Diego National Wildlife Refuge South Bay Unit

5
2
5
2

CA 55J Tijuana Estuary and Border Field State Park
182
74
150
61
150
61

California Totals
7,477
3,026
16,896
6,838
16,337
6,612

Total *
12,150
4,917
28,379
11,485
24,527
9,926

* Values in table may not sum due to rounding.

In summary, this revised final critical habitat designation includes approximately 24,527 ac (9,926 ha) in 60 units, after excluding portions of Units/subunits WA 3B, OR 1-7, OR 8A-D, OR 9-13, CA 50A-C, CA 52B-C, CA 53, CA 54A-D, CA 55E, CA 55G, and CA 55I (approximately 3,797 ac (1,537 ha)) based on consideration of economic, national security, and other relevant impacts (see Exclusions). The areas identified in this revised final rule constitute revisions of areas excluded and designated as critical habitat for the Pacific Coast WSP on September 29, 2005 (70 FR 56970), and proposed revisions to that rule published on March 22, 2011 (76 FR 16046) and January 17, 2012 (77 FR 2243). This revised final critical habitat designation includes approximately 6,077 ac (2,460 ha) in 4 units within Washington, approximately 2,112 ac (856 ha) in 9 units within Oregon, and 16,337 ac (6,612 ha) in 47 units within California. Table 2 above outlines the differences between the 2005 final critical habitat rule (70 FR 56970; September 29, 2005), the 2011 and 2012 proposed revisions to the critical habitat designation (76 FR 16046, March 22, 2011; 77 FR 2243, January 17, 2012, respectively), and this revised final critical habitat designation for the Pacific Coast WSP. For more information on the differences between the 2005 critical habitat rule and the 2011 revised proposed critical habitat rule and 2012 amendment, please see the Summary of Changes From Previously Designated Critical Habitat section of the revised proposed critical habitat rule published in the
Federal Register
on March 22, 2011 (76 FR 16046), and the Changes to Proposed Revised Critical Habitat section of the document published in the
Federal Register
on January 17, 2012 (77 FR 2243).

Critical Habitat

Background

Critical habitat
is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) Essential to the conservation of the species and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation,
as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. In this final rule, we also designate areas within the Pacific Coast WSP's historical range that may not have been occupied at listing. We designate those areas because we have determined that those areas are essential for the conservation of the species. For both the occupied and unoccupied areas (at the time of listing), critical habitat designation identifies, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are the elements of physical or biological features that, when laid out in the appropriate quantity and spatial arrangement to provide for a species' life-history processes, are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act if actions occurring in these areas may affect the species. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Relationship of Critical Habitat to Recovery Planning

Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. Areas that support populations are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

In developing this revised final rule, we considered the conservation relationship between critical habitat and recovery planning. Although recovery plans formulate the recovery strategy for a species, they are not regulatory documents, and there are no specific protections, prohibitions, or requirements afforded a species based solely on a recovery plan. Furthermore, although critical habitat designation can contribute to the overall recovery strategy for a species, it does not, by itself, achieve recovery plan goals.

In Appendix C of the Recovery Plan (Service 2007), the Service recommends management actions that can be taken by land managers to benefit the conservation of the Pacific Coast WSP. Some actions should be implemented with other measures to maximize the recovery potential. Other recovery actions need to be instituted when conditions change; for example, when there is increased predation, or the type of predator changes. Monitoring and intensive management may be required at some sites.

We expect that there will be an increased need for management (
i.e.,
implementation of recovery actions) as “coastal squeeze” occurs with a rising shift in sea level. A land manager's response will likely vary by site, depending on the site needs at that time. Additional planning may be required to set priorities to the expected change in habitat condition.

Much information has been collected since the Pacific Coast WSP's listing as threatened in 1993. Those data that define life history parameters need to be regularly assessed to gain a better understanding of Pacific Coast WSP survivorship, response to predation and disturbance, and response to changing habitats. A revised population viability analysis (Service 2007, Appendix D) will assist biologists and land managers to understand population movements, and perhaps prioritize areas suitable for intensive management. Cost-effective management at a few, well-distributed sites may assist with long-term Pacific Coast WSP conservation, and allow for the sharing of resources.

Methods

As required by section 4(b)(2) of the Act, we used the best scientific data available in determining areas that contain the features essential to the conservation of the Pacific Coast WSP. Data sources included research published in peer-reviewed articles and previous Service documents on the species. Additionally, we utilized regional Geographic Information System (GIS) shape files for area calculations and mapping (also refer to Methods section in the 2011 revised proposed rule published at 76 FR 16046).

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the historical range and geographical area occupied by the

species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the specific physical or biological features essential for the Pacific Coast WSP from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the revised proposed rule to designate critical habitat published in the
Federal Register
on March 22, 2011 (76 FR 16046), and in the information presented below. Additional information can be found in the final listing rule published in the
Federal Register
on March 5, 1993 (58 FR 12864), and the Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (
Charadrius alexandrinus nivosus
) finalized on August 13, 2007 (Service 2007). We have determined that the Pacific Coast WSP requires the following physical or biological features.

Habitats That Are Representative of the Historical Geographical and Ecological Distribution of the Species

The historical range of the Pacific Coast WSP extends from Copalis Spit, Washington, south along the Pacific Coast of Oregon and California to Bahia Magdelena, Baja California, Mexico. The Pacific Coast WSP breeds primarily above the high tide line on coastal beaches, sand spits, dune-backed beaches, sparsely vegetated dunes, beaches at creek and river mouths, and salt pans at lagoons and estuaries. Less common nesting habitats include bluff-backed beaches, dredged material disposal sites, salt pond levees, dry salt ponds, and river bars. In winter, Pacific Coast WSPs are found on many of the beaches used for nesting as well as on beaches where they do not nest, including manmade salt ponds and on estuarine sand and mud flats. Despite the variation in the types of habitat where the Pacific Coast WSP is found, these habitats all share the same general characteristics of typically being flat, open areas with sandy or saline substrates, with usually sparse or absent vegetation or driftwood (Stenzel
et al.
1981, p. 18; Service 2007).

In addition to the varying habitat types identified above, individual habitat characteristics also vary across the Pacific Coast WSP's range. For example, beach habitats in the southern part of its range are generally characterized by large, flat, open spaces, whereas beach habitats within the northern part of the range (north of Tomales Bay, CA) are smaller, more widely distributed, and often associated with stream mouths, bays, or estuaries. These varying habitat types and availability contribute to the Pacific Coast WSP's ability to maintain its use of coastal areas for breeding and wintering across its range and are considered an essential physical or biological feature for the species.

Space for Individual and Population Growth and for Normal Behavior

Pacific Coast WSPs req

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-13886. Public record. Not legal advice.