Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in Texas

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0055; 92210-1117-0000-FY09-B4]

RIN 1018-AV46

Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (

Charadrius melodus

) in Texas

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 wintering population of the piping plover (

Charadrius melodus

) in 18 specific units in Texas under the Endangered Species Act of 1973, as amended (Act). In total, approximately 139,029 acres (56,263 hectares) fall within the boundaries of the revised critical habitat designation. The revised critical habitat is located in Cameron, Willacy, Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and Brazoria Counties, Texas. Other previously designated critical habitat for the wintering piping plover in Texas or elsewhere in the United States remains unaffected.

DATES:

This final rule becomes effective on June 18, 2009.

ADDRESSES:

This final rule, the associated final economic analysis, and the final environmental assessment are available on the Internet at

http://www.regulations.gov

or

www.fws.gov/southwest/es/Library/

. Comments and materials we received, as well as supporting documentation we 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, Corpus Christi Ecological Services Field Office, 6300 Ocean Drive, TAMU-CC, Unit 5837, Corpus Christi, TX 78412-5837.

FOR FURTHER INFORMATION CONTACT:

Allan Strand, Field Supervisor, U.S Fish and Wildlife Service, Corpus Christi Ecological Services Office (see

ADDRESSES

); telephone 361-994-9005; facsimile 361-994-8262. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the development and designation of revised critical habitat for the wintering population of the piping plover in Texas in this final rule. For more information on the biology and ecology of the wintering population of the piping plover, refer to the final listing rule we published in the

Federal Register

on December 11, 1985 (50 FR 50726). For information on piping plover wintering critical habitat, refer to the final rule designating critical habitat for the wintering populations of the piping plover we published in the

Federal Register

on July 10, 2001 (66 FR 36038), and the proposed rule to designate revised critical habitat for the wintering population of the piping plover in Texas we published in the

Federal Register

on May 20, 2008 (73 FR 29294). We made available the associated draft economic analysis and draft environmental assessment for the proposed rule to designate revised critical habitat via publication in the

Federal Register

on, December 9, 2008 (73 FR 74675).

Previous Federal Actions

We listed the piping plover as endangered in the Great Lakes watershed and threatened elsewhere within its range on December 11, 1985 (50 FR 50726). All piping plovers on migratory routes outside of the Great Lakes watershed or on their wintering grounds are listed as threatened under the Act due to the difficulty of knowing where they bred or were hatched.

On July 10, 2001, we designated 142 areas along the coasts of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas as critical habitat for the wintering population of the piping plover (66 FR 36038). This designation included approximately 1,798 miles (mi) (2,892 kilometers (km)) of mapped shoreline and approximately 165,211 acres (ac) (66,881 hectares (ha)) of mapped areas along the Gulf and Atlantic coasts and along margins of interior bays, inlets, and lagoons.

In February 2003, Dare and Hyde Counties, North Carolina, and the Cape Hatteras Access Preservation Alliance challenged the designation of four critical habitat units on the Cape Hatteras National Seashore, North Carolina. A November 1, 2004, court opinion vacated and remanded these units for reconsideration (

Cape Hatteras Access Preservation Alliance

v.

U.S. Department of the Interior

(344 F. Supp. 2d108 (D.D.C. 2004)). On June 12, 2006, we published a proposed rule in the

Federal Register

(71 FR 33703) to amend the Service's critical habitat designation in North Carolina. We revised that proposal on May 15, 2008 (73 FR 28084), and published a final designation on October 21, 2008 (73 FR 62816).

The Texas General Land Office (GLO) filed suit on March 20, 2006, challenging our designation of 19 units of critical habitat along the Texas coast (Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 22, 23, 27, 28, 31, 32, and 33). In a July 26, 2006, stipulated settlement agreement and court order, the court vacated and remanded the designation for reconsideration (

Texas General Land Office

v.

U.S. Department of the Interior,

et al

., No. 06-CV-00032 (S.D. Tex.). This rule addresses only the court-vacated and remanded units (the 19 units referenced above). It also addresses minor edits to the regulatory language found in 50 CFR 17.95(b). All other areas remain as designated in the July 10, 2001, final critical habitat rule (66 FR 36038), including Texas Units 1, 2, 5, 6, 11, 12, 13, 20, 21, 24, 25, 26, 29, 30, 34, 35, 36, and 37.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed revised designation of critical habitat for the piping plover during two comment periods. The first comment period, associated with the publication of the proposed rule (73 FR 29294), opened on May 20, 2008, and closed on July 21, 2008. We also requested comments on the associated draft economic analysis and draft environmental assessment during a second comment period, which opened December 9, 2008, and closed on January 8, 2009 (73 FR 74675). We did not receive any requests for a public hearing. We coordinated with the Texas General Land Office and also maintained project by project contact with other Federal, State, and local agencies and interested parties working in the South Texas coastal area as they needed assistance in determining presence of piping plover habitat and critical habitat. Additionally Federal, State, and local agencies; scientific organizations; and other interested parties could respond to the proposed rule and draft economic analysis during the comment periods.

During the first comment period, we received five sets of comments addressing the proposed critical habitat designation. During the second comment period, we received a single set of comments, from the GLO, on the draft economic analysis and environmental assessment. Comments were grouped into general issues relating to the proposed critical habitat designation for the wintering piping plover, and are addressed in the

following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received a response from one of the five peer reviewers. The peer reviewer generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments:

(1)

Comment

: Designating critical habitat may not radically change the protection for the plover as it already has protection from take under section 7 of the Act. Also, designating critical habitat may not change the economic impacts from piping plover habitat protection since occupied habitat is still protected, also by section 7, regardless of critical habitat designation.

Our Response:

We have noted these comments and addressed them in the economic analysis and environmental assessment for this rule. The economic impact (cost) in the areas we are designating as critical habitat is substantially lower than costs resulting from listing the species. However, the economic analysis anticipates that some impacts of the designation will be incurred, particularly from avoidance of stockpiling materials on sandflats and avoidance of discharging freshwater on tidal flats. The impacts of critical habitat designation are further discussed in the

Economic Analysis

section under

Exclusions

, below.

(2)

Comment:

The peer reviewer generally approved of the methods used to map critical habitat, but expressed concerns at the use of mean lower low water (MLLW) as the lower boundary for critical habitat, because during extreme low tides plovers feed in the exposed flats. He recommended adding a buffer to the MLLW boundary to capture the areas exposed during extreme low tides when piping plovers are present.

Our Response:

The extreme low tides expose areas classified by our National Wetland Inventory (NWI) as subtidal with rooted vascular vegetation, usually seagrass. We are aware the plovers feed on organisms found on and around seagrass on the rare occasions when the seagrass is exposed during extreme low tides. Wintering piping plovers are active during daylight hours and spend the majority of that time foraging (Johnson and Baldassarre 1988, pp. 216-217). However, seagrass beds are usually submerged and unavailable to the plovers for foraging, so we do not consider them to be features essential to the conservation of the species (primary constituent elements).

A critical habitat designation does not signal that habitat outside the designated area is unimportant. Since we are aware that, when exposed, these areas provide food to the wintering plovers, we will focus on individual section 7 consultation jeopardy analyses to consider impacts to the species in these areas.

(3)

Comment:

The peer reviewer questioned the use of 2005 National Agriculture Imagery Program (NAIP) imagery and asked us to specify the Geographic Positioning System (GPS) unit used.

Our Response:

The 2005 NAIP aerial photography was the most recent imagery available to us that covered all of the area we were considering for this revised designation of critical habitat. When using aerial photography in a Geographic Information System (GIS), the 2-dimensional photographs are applied to a 3-dimensional system that accounts for the curvature of the Earth. When that is done, each aerial photograph becomes distorted, with some parts of the photograph distorted more than others. We have no information on how GPS was used to generate the NAIP photographs. However, we used a Trimble GeoXT GPS unit with TerraSync version 3.01 software to measure the level of distortion in order to be certain that we are not including built structures in the units we are designating. See the

Criteria Used To Identify Critical Habitat

section, under

Critical Habitat

, below for additional discussion on our use of GPS.

(4)

Comment:

The peer reviewer commented on the dynamic nature of the coast and occurrence of hurricanes that might make it imprudent to designate critical habitat boundaries so precisely. Also, there was concern with the use of NWI dataset, which is about 15 years old. However, the reviewer believed these concerns might be ameliorated if occupied habitat is adequately protected under existing Endangered Species Act regulations.

Conversely, the GLO expressed interest in us establishing boundaries more precisely, commenting that more precise boundaries should limit the need for buffers. Also, they expressed concern that corrections of the gulf-side MLLW data using Unit TX-3 might have led to a false 184-foot (ft) (56-meter (m)) average that was too generalized and that this overgeneralization was then applied to all lower unit boundaries. Also, the GLO questions what was used to define boundaries, if the vegetation line was not used to delineate the landward limit.

Our Response:

In

Cape Hatteras Access Preservation Alliance

v.

U.S. Dept. of the Interior

, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court found that PCEs must be present in any occupied habitat, in order for us to designate that habitat. We are designating only occupied habitat for the piping plover wintering population in Texas. We have not included additional unoccupied coastal areas in the designation at this time because we cannot predict when and where a dynamic coastline shift may occur, and whether this will result in new or different areas that will develop the PCEs, or if these areas may support plovers.

In our proposed designation, we created the lines which make up the polygons delineating areas containing the essential features by using an unadjusted high level of precision for calculating the Universal Transverse Mercator coordinates (UTMs). In preparing this final designation, we realized that this was an artificial level of precision, because the aerial photographs we used in generating boundaries have some distortions (see our response to Comment 3 above), and because of other GIS-processing reasons (see

Methods

section under

Critical Habitat

). In other words, the data used did not actually have the degree of detail to provide accurate and consistent information to that level of precision. It was our desire to eliminate an unintentionally confusing and potentially inaccurate degree of precision in our calculations. To better reflect the degree of reasonable precision available from the existing data and techniques, we decided to smooth the lines defining the critical habitat polygons using a known and well-published algorithm with a 10-meter tolerance. We therefore recalculated the UTM coordinates using the resulting smoothed polygons. Using the smoothed polygons allowed us to determine the most accurate and reasonably precise delineation of the polygons, using the best available science.

We have effected this change in this final designation, and in so doing we have also responded to the comments of both the peer reviewer and the GLO by

using the most appropriate scale and reasonable level of precision, by smoothing the edges of the polygons of critical habitat slightly to avoid implying a false level of precision. We believe this provides the most accurate boundaries we can, using the best scientific information available. In the

Methods

section (under

Critical Habitat

), we describe our use of a polygon smoothing algorithm; it added and deleted slivers of area in all of the units and subunits. This resulted in a slight addition of area overall, although some units lost a small amount of area while others gained a small amount.

We chose to use the NWI maps and data in bayside areas because it allowed us to identify the types of habitat used by the plover and map those habitat types. We used this methodology only for bayside areas because those areas did not change appreciably over time. The

Criteria Used To Identify Critical Habitat

section below explains how we adjusted for areas where changes did occur.

In order to determine the MLLW, we used digitized data from the National Oceanic and Atmospheric Administration (NOAA) of the gulf coast in the area of Unit TX-3. It is important to include wetted beach areas exposed at low tides in our designation because they are heavily used by wintering plovers for foraging. We considered using Light Detection and Ranging imagery to map the MLLW; however, recent imagery that maps coastal areas that are under water was not available for much of the portion of the Texas coast where we are designating critical habitat. Therefore, the NOAA digitized data was the best scientific information available for use in determining the MLLW.

Using the NOAA digitized MLLW presented problems because, for most of the coastline we were mapping, erosion and accretion from storm events had shifted the beach and MLLW from what was digitized by NOAA. The exception was with the MLLW for Unit TX-3. The NOAA-defined MLLW for that unit runs approximately parallel to the shoreline, following the contours of the gulf floor. The metadata provided for the NOAA-defined MLLW did not provide the year when the MLLW was defined. However, based on the alignment of the MLLW approximately parallel to the shoreline in Unit TX-3, the MLLW may have been defined more recently for that area of the coast than for the other areas where we are designating critical habitat. We chose to measure the distance from the shoreline to the NOAA-defined MLLW every 328 ft (100 m) for over 30 miles (48 kilometers) in Unit TX-3 because that provided the most accurate way to estimate the MLLW available. We then calculated the average of the shoreline to MLLW distance, which was 184 ft (56 m), and applied that calculation to the other units.

We agree with the GLO that using a single number to estimate the MLLW is generalizing the MLLW. However, the average was calculated from 90 measurements from the shoreline to the NOAA-defined MLLW in TX-3, and we were unable to identify a better alternative. We used NOAA tidal station and bathymetric (ocean water depth) data to confirm that the 184-ft (56-m) distance from shore provided a reasonable estimate of the MLLW. See the

Criteria Used To Identify Critical Habitat

section below for additional discussion. We continue to believe that this method utilizes the best scientific information available to us in making this critical habitat designation.

The vegetation line in the NAIP photographs was used to delineate the landward limit in all but a few cases. We have added an explanation to the

Criteria Used To Identify Critical Habitat

section (under

Critical Habitat

) below of how we mapped the landward limit when the vegetation line was not used.

(5)

Comment:

The peer reviewer asked what distance was used to determine whether a unit was valuable to piping plovers due to the particular unit's proximity to other wintering piping plover occurrences.

Our Response:

In this revised designation of critical habitat, we did not include areas that were in the original designation that were too small or too fragmented (i.e., separated from a larger area) to be of utility. In determining whether to include such areas in our revised designation, we also considered whether an area was occupied by the plover at least 2 years between 1997 and 2007, to compare more recent census data to the areas originally occupied at time of listing. We have modified our

Methods

section (under

Critical Habitat

) to reflect our use of these criteria. We did not use plover dispersal capability as a criterion for including the small or separated areas in the revised designation, and we did not use a specific size or distance to define them.

(6)

Comment:

The peer reviewer notes that piping plovers are highly mobile and may use different sites, depending on daily and seasonal tide conditions, and surveys need to be done more frequently to be really knowledgeable of site usage. The reviewer cautions against excluding Unit TX-17 due to lack of plover sightings there since 1997, and recommends we include all sites that have been occupied over the decades, so that we do not exclude a site because of potentially inadequate surveys.

Our Response:

We deleted TX-17 as a critical habitat unit, because it has been reduced in size from 14 ac (6 ha) to less than 3 ac (1 ha) since the original designation. The best available science does not support the conclusion that this unit is still used by plovers, due to its small size and the lack of plovers documented there since 1997.

(7)

Comment:

What criteria explicitly define current occupancy?

Our Response:

We define current occupancy as one or more wintering plovers being documented to be present in a unit two or more years from 1997 to 2007. We relied on international piping plover wintering survey data, peer-reviewed articles with survey data, Masters thesis results, Christmas Bird Count data, survey data obtained from Federal project reports, and data from local biologists. If there was a question as to whether a piping plover was reported from an area two or more times between 1997 and 2007, Ecological Services field office biologists made a site visit during the wintering season at the appropriate tidal range to confirm presence.

Further, all revised critical habitat units in Texas are within areas that we have determined were occupied at the time of listing, and that contain the PCEs in the appropriate spatial arrangement needed to support life history functions essential for the conservation of the species where it winters. All units which we designate as critical habitat have occurrence data that indicate a consistent use. That is, occupancy has been documented over two or more wintering seasons, which is the same criterion used in the original 2001 designation.

Comments from States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the Texas GLO regarding the proposal to revise critical habitat designation for the wintering piping plover are addressed below.

(1)

Comment:

The GLO questioned whether we provided sufficient justification for designating the additional areas of vacated critical habitat (in addition to the areas that were not vacated), to show that habitat is essential to the conservation of the piping plover.

Our Response:

We believe the proposed rule justifies designating the vacated critical habitat areas, because they contain features essential to the conservation of the plovers. These areas are used by wintering plovers that are endangered on their breeding grounds in the Great Lakes region and are, thus, in danger of extinction. These endangered individuals spend up to 10 months of the year on the wintering grounds, thus emphasizing the importance of sufficient and suitable wintering habitat (Drake

et al

. 2001, p. 260). Because piping plovers spend most of the annual cycle on nonbreeding areas, they would be negatively affected by loss of those sites, emphasizing the importance of conserving nonbreeding areas for this species. While on their wintering grounds in Texas, plovers are dependent on a mosaic of habitat patches, and move among these patches (Drake

et al

. 2001, pp. 262-264). The areas we are designating were occupied by the species at least twice in the last 10 years, and they contain the primary constituent elements for wintering plovers as required by our regulations at 50 CFR 424.12. Thus, we have determined that these areas have features which are essential to the conservation of the species.

(2)

Comment:

The GLO believes oil and gas exploration, including seismic survey, and production would be limited due to restrictions imposed by the Service due to critical habitat. They cited an example of a 2006 letter where the Service recommended that seismic crews stay out of critical habitat and a buffer of 1,000 feet around it.

Our Response:

The Service has not made such recommendations to stay out of critical habitat when performing seismic work since 2006. On August 27, 2008, the Corpus Christi Ecological Services Office issued a memorandum that provides current guidance for conducting section 7 consultations for the wintering piping plover population in Texas. The guidance recommends ways to avoid or minimize adverse effects to the birds and their habitat, but it does not recommend avoidance of critical habitat areas. We anticipate that activities (including oil and gas exploration) could occur in critical habitat areas without conflicting with endangered species prohibitions. The Service's section 7 handbook states: “In evaluating project effects on critical habitat, the Service must be satisfied that the constituent elements of the critical habitat likely will not be altered or destroyed by proposed activities to the extent that the survival and recovery of affected species would be appreciably reduced. Modification or destruction of designated critical habitat that does not reach this threshold is not prohibited by section 7.” The constituent elements for wintering piping plover critical habitat are listed in the

Primary Constituent Elements (PCEs)

section under

Critical Habitat

below.

(3)

Comment:

The GLO questioned what authority the Service might have to control future impacts in critical habitats in areas not covered by Federal permits/section 7.

Our Response:

To the extent that a particular activity affecting designated critical habitat does not involve a federal action, the Service has no direct regulatory authority with respect to such activities. The Service, is however, responsible for enforcing the prohibitions on unauthorized taking of a listed species under section 9 of the Act. Take is defined in the Act as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [a listed species], or attempt to engage in any such conduct.” Where there is no federal action to which section 7 would apply, the Service can authorize take under section 10 of the Act. Section 10 provides authority to permit the take of listed species by non-Federal entities such as private landowners, cities, or counties. This is done through a permitting process where project effects must be mitigated, including effects to habitat.

(4)

Comment:

The GLO commented that the Service did not list the physical and biological features determined essential to the conservation of the piping plover.

Our Response:

In our proposed rule we referenced the text of the July 10, 2001, rule (66 FR 36038), which specifies the physical and biological features essential to the conservation of the species. We consider these physical and biological features essential to the conservation of the species where it winters to be the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement for the conservation of the species, and which may require special management considerations or protection. The PCEs are listed below in the section

Primary Constituent Elements

. In this rule, we are designating as critical habitat areas which contain one or more of these eight features for this revised designation. We did not designate any areas in this rule containing salterns, which are bare sand flats in the center of mangrove ecosystems, because they do not occur in Texas, although they occur in other States where the plover winters.

(5)

Comment:

The GLO inquired as to what information the Service has that elevates normal recreational use to being a threat in 2008 when it was not considered a threat in 2001.

Our Response:

We have observed more development on the South Texas coast and increased beach usage by pedestrians and motorists over the intervening 7 years. Increased beach use has produced conditions, such as increased numbers of joggers, cyclists, and unleashed dogs near the water's edge, that lead to additional disturbance to foraging and roosting piping plovers.

(6)

Comment:

The GLO observed that the Texas Open Beaches Act controls access to the beaches, requiring local governments to address access in Dune Protection and Beach Access Plans. There are concerns that in areas where there is critical habitat for the plover, the Service could impose beach driving closures or driving limitations during the plover wintering season, which would yield an economic loss for local governments.

Our Response:

The Service has not recommended the closure of beaches in Texas due to the presence of wintering plovers, whether the beaches are in critical habitat areas or not. We may make recommendations to minimize driving in cases where driving has the potential to destroy or adversely modify critical habitat. For instance, when some oil and gas activities are planned that require the use of heavy trucks, we have recommended that the trucks form a convoy to limit tire rutting on beaches and to smooth over extensive ruts. We have not limited recreational driving in wintering plover critical habitat areas in the past, and we do not anticipate doing so in the future.

(7)

Comment:

The GLO asked how beach nourishment and cleaning might be detrimental to critical habitat in the long term.

Our Response:

Critical habitat can be adversely modified by movement of sand that changes beach elevation and causes vegetation to encroach. Critical habitat could also be affected for one or more seasons by beach-cleaning vehicles making ruts, or beach nourishment activities that bury the shoreline benthic zone under extra sand so plover prey items are not as accessible. Cleaning activities that remove sargassum and natural debris such as driftwood also remove part of the prey base and objects behind which plovers take shelter when resting.

(8)

Comment:

The GLO suggested that, if the Service does designate the proposed critical habitat, it would be wise to develop a general permit type of approach to potential piping plover

consultations. It would help to develop guidelines to allow legal activities to occur consistently and efficiently.

Our Response:

We agree, and we will pursue developing a list of best management practices for the critical habitat and programmatic consultations for Clean Water Act permits often required for work in piping plover habitat.

(9)

Comment:

The GLO expressed concern that minimizing beach driving, if it results in denied access, would conflict with the Texas Open Beaches Act (OBA). Also specifying the size and location of driving lanes could conflict with the OBA.

Our Response:

As we explain in our response to GLO comment 2, our August 27, 2008, guidance does not recommend avoidance of critical habitat areas. In critical habitat areas, in instances where there is a federally permitted or funded activity that would involve creating driving lanes, we may suggest reducing the size of driving lanes to minimize effects to the plover, and would recommend that they not be in the intertidal zone where piping plovers feed.

(10)

Comment:

The GLO commented that there were not enough details to determine if the proposed restrictions would increase the cost of local government maintenance or conflict with the OBA. Also, local governments' costs for training staff on plover protection and preparation of annual reports are not eligible for reimbursement under the State Beach Cleaning and Maintenance Assistance Program.

Our Response:

As noted above, there are no restrictions due to critical habitat alone, but rather recommendations in cases where Federal funding or permitting exists. Municipalities have no requirements to train staff, monitor piping plovers, or prepare annual monitoring reports based on the designation of piping plover critical habitat.

(11)

Comment:

The GLO commented that there may be areas of conflict between the OBA or private use and designated critical habitat such as: Preventing fill in sand flats, preventing planting of vegetation in sand flats, and placing fences to exclude beach access.

Our Response:

Designation of critical habitat does not prohibit or require any of these activities. If activities in critical habitat areas are federally funded or permitted, such as some filling or planting activities, they would require consultation under section 7, in order for the federal funding or permit to be issued. Our August 27, 2008, guidance on section 7 consultations on critical habitat recommends not filling in sandflats, but designation of critical habitat will likely affect such filling only if a federal action agency determines that the filling would result in a federal action destroying or adversely modifying critical habitat.

Fencing is addressed in our economic analysis only with respect to minimizing the effects of residential development adjacent to designated critical habitat. Fencing would not prevent access to the beach, but only exclude access to it from the area under development.

(12)

Comment:

The GLO commented that further details are needed on how the Service plans to define “harassment” under the Endangered Species Act, as it applies to recreational beach activities like vehicle driving, pedestrian usage, and pet restrictions.

Our Response:

The Act prohibits “harassment” of listed species. The Service's regulations define “harassment” as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. For example, harassment in the form of disturbance from the increased use of vehicles, pedestrians, or pets may include noise and increased activity that may flush a bird from the habitat it uses to feed. The bird's inability to feed may lead to poor body condition. Additionally, flushing a bird from an area where it is sheltering may cause that bird to become more susceptible to predation. If any of the activities of concern (vehicular use, pedestrian use, or the presence of dogs on the beach) cause significant disruptions of normal behavior patterns, then such actions could meet the definition of harassment.

(13)

Comment:

The GLO noted that some possible areas for exclusion may be the Willacy County portion of Unit TX-3A, the Kleberg County portion of TX-3D, Unit TX-16, TX-22, TX-32, TX-10(A), and also the critical habitat in the Mollie Beattie Coastal Habitat Community in Unit TX-06.

Our Response:

We have reviewed the areas identified above in the GLO's comment. We considered excluding areas based on specific protection plans being in place for the piping plover and its wintering habitat. We appreciate that the Coastal Barrier Resources Act (CBRA) and the OBA offer protection to the Willacy County portion of TX-3A by discouraging future development. The GLO-managed land in the Kleberg County portion of TX-3D is also CBRA protected and GLO protected and managed, with deed restrictions to prevent additional development. Also, we understand that the nonprofit organization, The Nature Conservancy, is to buy this property from GLO and transfer it to the Padre Island National Seashore. Shamrock Island, Unit TX-10(A), is owned by The Nature Conservancy. Units TX-16, TX-22, and TX-32 also all have CBRA protection and limited access because of their remote locations without roads or connections to the mainland. These authorities may provide some habitat protection, but none of these plans specifically target piping plover protection for those areas. The Mollie Beattie Coastal Habitat Community is in Unit TX-06 and was not vacated and, therefore, was not reconsidered for designation in this rule. We gratefully acknowledge the efforts of the GLO, Texas Parks and Wildlife Department, Coastal Bend Bays and Estuary Program, Coastal Conservation Association, Texas A&M University—Corpus Christi Center for Coastal Studies, and the Saltwater—Fisheries Enhancement Association for efforts in conservation of piping plover and other coastal resources at the 1100-ac Mollie Beattie preserve.

Public Comments

In addition to the comments from the Texas General Land Office, we received substantive comments from one individual and from two organizations, the Center for Biological Diversity and the Gulf Coast Bird Observatory. Comments are grouped into general issues relating to the proposed critical habitat designation for the wintering piping plover and are addressed below.

(1)

Comment:

The Center for Biological Diversity supports designation of critical habitat for the piping plover in Texas and elsewhere and believes the current proposal should be expanded to include additional currently unoccupied habitat so that plovers and their habitats can move and adapt to changing climate conditions and rising sea levels.

Our Response:

Climate conditions are discussed in the Environmental Assessment for the rule. Climate change may cause changes in the arrangement of suitable habitat patches. We also believe the Texas coast may experience high rates of sea-level rise as well as increases in the frequency and intensity of storms. However, the information currently available on the effects of climate change does not make sufficiently accurate estimates of the location and magnitude of the effects, so we are unable to determine what additional areas would be needed, nor

where they would be located. We believe the critical habitat designated includes the areas that meet the definition of occupied critical habitat, and based on the best scientific and commercial data available, we have determined that the addition of unoccupied areas in Texas is not essential for the conservation of the species. This is discussed further in the

Criteria Used To Identify Critical Habitat

section below. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas we may later (with the benefit of additional information) determine are necessary for the recovery of the species. For this reason, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not promote the recovery of the species.

(2)

Comment:

The Service does not account for the destructive nature of off-road vehicle (ORV) use in plover habitat, as these can significantly reduce the overall abundance and diversity of benthic food items for the birds. The commenter cites a study of the reduction in abundance and diversity of benthic species conducted in Australia, where the beach received an average of 727 vehicles per day.

Our Response:

We do not have evidence that South Texas beaches are receiving these levels of use, and data are not available regarding effects on benthic species for Texas beaches used by piping plovers. Our decision to designate critical habitat must be based on the best available data and the conclusions we can draw from it. We are aware of possible effects, and we review projects or situations on a case-by-case basis for data and indications of diminished or damaged food sources that might harm wintering plovers.

(3)

Comment:

The proposal to exclude National Wildlife Refuge lands is inappropriate.

Our Response:

We considered whether to propose to exclude National Wildlife Refuge lands under section 4(b)(2) of the Act and have determined that we will not exclude them. The Refuge lands are included in the critical habitat designation.

(4)

Comment:

The Service needs to explain the difference in the size of the units designated in 2009 versus the same units described back in 2001.

Our Response:

The units changed in size with removal of areas that do not contain PCE's, based on National Wetlands Inventory data, and they also changed in size due to shifts in coastal habitat patches since the 2001 mapping. This is explained in greater detail below in the

Criteria Used To Identify Critical Habitat

section.

(5)

Comment:

The Gulf Coast Bird Observatory is completing a 1-year study of the piping plover on the upper Texas coast that includes critical habitat Units TX-27, TX-28, TX-31, TX-32, and TX-33. The Gulf Coast Bird Observatory submitted piping plover sighting data and believes resizing some of these critical habitat units may affect the birds. Additionally, they are concerned that the Service may delete TX-29, TX-30, TX-34, TX-35, TX-36, TX-37 based on maps from

http://criticalhabitat.fws.gov

.

Our Response:

We appreciate the plover sighting survey data and information from on-site field investigations showing bird usage and human threats. Units TX-29, TX-30, TX-34, TX-35, TX-36, and TX-37 remain as critical habitat and were not vacated by the settlement agreement, so they are not a subject of this revised designation. We reviewed the map viewer version of the map for the plover at

http://criticalhabitat.fws.gov

, and found the currently designated units in Texas to be correct as they were mapped for the original 2001 designation. The 19 units that were vacated by the court do not show. Following this revised designation, the map at

http://criticalhabitat.fws.gov

will be updated to reflect this designation.

Comments Related to the Draft Economic Analysis (DEA)

(1)

Comment:

One commenter states that the DEA must analyze and calculate all of the benefits of designating critical habitat. Since critical habitat contributes to the survival and recovery of the species, the economic analysis needs to consider the benefits of these contributions.

Our Response:

The Service considers the designation of critical habitat to be of high benefit to the species by affording opportunities for conservation. In general, we may only exclude areas that meet the definition of critical habitat when the benefits of exclusion outweigh the benefits of designation, and the effect of the exclusion would not result in extinction of the species. The Secretary must consider economic and other relevant impacts as part of the final decision-making process under section 4(b)(2) of the Act. The Act also states that its purpose is to conserve threatened and endangered species and the ecosystems upon which they depend. The non-economic related benefits of designation are appropriately considered in the balancing portion of a 4(b)(2) exclusion analysis.

(2)

Comment:

One commenter states that previous economic analyses have overestimated the costs of the designation of critical habitat by ascribing coextensive costs to critical habitat. The commenter goes on to state that the Service must separate out all costs in the economic analysis that are attributable to listing alone, required by biological opinions, habitat conservation plans, state laws, or other regulatory measures, and that the costs associated with critical habitat must be considered alone.

Our Response:

This economic analysis considers the costs associated with critical habitat separate from those likely to occur under the baseline, to the extent possible. Specifically, the economic analysis employs “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections already accorded the piping plover; for example, under the Federal listing and other Federal, State, and local regulations. The “with critical habitat” scenario includes the incremental impacts associated specifically with the designation of critical habitat for the species (since all of the potential economic impacts associated with the designation of critical habitat are considered incremental). The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the piping plover. These impacts are summarized in the Executive Summary under “Summary of Incremental Impacts and Exhibit ES-4.”

(3)

Comment:

One public commenter states that higher exploration and development costs associated with oil and gas operations in coastal and marine environments, combined with time delays, regulatory uncertainty, and stigma associated with critical habitat could result in industry avoidance of critical habitat areas. Thus, critical habitat represents a functional condemnation of the State's mineral estate.

Our Response:

Section 3.6.3 of the FEA acknowledges that increased impact minimization costs for oil and gas activities could lead to some voluntary avoidance of critical habitat areas by industry due to perceived limitations. However, these are not real limitations except in the very unlikely event that there is a federal action that would adversely modify or destroy the critical habitat. So the likelihood of this potential avoidance behavior is not known. The economic impacts of avoiding critical habitat areas could vary from no impacts, if a known

resource can be tapped without directional drilling from outside the critical habitat, to appreciable impacts (i.e., $125,000 to $520,000 per year), if the resource can only be accessed from within critical habitat areas, or if data that would have been gathered during a seismic survey fails to locate a resource that otherwise would have been found. The FEA assumes that restrictions on proposed drilling activities within critical habitat areas will result in use of suboptimal drilling locations that require directional drilling to access the resource. The FEA assumes that seismic exploration activities would be modified to avoid impacts related to driving in habitat areas.

(4)

Comment:

One commenter states that the assumption made in the DEA that the geographic distribution of seismic survey and drilling effort in the past is indicative of future activities is invalid based upon current trends. First, there is a trend towards unconventional reservoirs, such as shales, which are currently the focus of much activity within the oil and gas sector in the mid-continental U.S. Second, mid-depth, deep-depth, and ultra-deep depth development have not been fully explored. With these deeper depths to be evaluated it is unrealistic to believe that there will be a “constant rate of well drilling over the next 20 years.” Third, seismic imaging of the transition zone (the shallow water area near shorelines) only began recently—prior to this development the transition zone was under explored. Just because an area was surveyed several times between 1989 and 2007 does not mean that with continued improvements in seismic imaging that it will not be resurveyed in the next 20 years.

Our Response:

Section 3 of the FEA highlights that “the primary source of uncertainty in this analysis is the potential number and location of future seismic survey efforts and drilling sites.” As the FEA and the commenter point out, and as confirmed by two academic experts in this field, specific projections of the future location and number of future seismic surveys and drilling sites are not available for critical habitat areas. As such, past data for this area, covering a 19-year span, was used to project future rates of drilling activity over the next 20 years. Although the drilling data suggests some increase in activity in the past three years of the study period, it is not clear that these years alone represent the likely future rate of drilling, particularly when taking into account the changing economic climate. As such, the analysis draws on data from a longer time period to capture what may be a more representative sample of data. Similarly, assumptions about the rate of seismic surveys draw from the past ten years of data (1998-2007). In both cases, however, a high level of uncertainty remains regarding the level of future surveying and drilling activity in critical habitat areas. In response to these public comments, Section 3.2 of the analysis has been revised to specifically acknowledge that contributing factors to the uncertainty surrounding the potential number and location of future seismic survey efforts and drilling sites within critical habitat areas include changes in the rate of oil and gas development activities, including exploration of new areas and depths.

(5)

Comment:

One commenter states that restrictions on and modifications of the shot point and receiver arrays for seismic surveys on or near the critical habitat designation will decrease fold and negatively impact the data acquired, even to the point that it is useless for evaluation of the subsurface. Further, gaps in an array caused by the exclusion of areas within the array reduce data quality not only within the excluded area but extend on each side for about the width of the excluded area, depending upon the depth being imaged. Therefore, the impacts to oil and gas exploration will affect areas many times larger than the critical habitat designation alone, and thereby will have an affect many times greater annually than the dollar amount estimated.

Our Response:

As stated in section 3.3.4 of the FEA, the Service states that, in the future, it is more likely to recommend a series of project modifications for work within critical habitat than it is to recommend avoidance of the habitat areas altogether. The project modifications identified as likely to be recommended by the Service are summarized in Exhibit 3-7 of the FEA, and do not include avoiding surveying critical habitat areas. Therefore, the current estimates of likely impacts to surveying activities remain unchanged from the DEA.

(6)

Comment:

One commenter states that the DEA attempts to marginalize the Gulf Coast by stating that the “largest concentration of oil reserves in Texas are found in West Texas, while the largest deposits of natural gas are found in the northeastern part of the State. Neither of these concentrations lies near proposed critical habitat for the piping plovers”.

Our Response:

Section 3.3.2 of the FEA intends to provide context for understanding the importance of the Gulf Coast oil and gas development by providing information on production in other parts of Texas. The section FEA also states: “The Gulf Coast Region, where critical habitat for the plover is located, produces a significant amount of oil and gas, with 15,484 active oil and 20,218 active gas wells operating in the nine counties that contain critical habitat. Gulf Coast wells comprise 22 percent and 10 percent of Texas wells, respectively”.

(7)

Comment:

One commenter states that the Texas General Land Office has leased significant amounts of acreage in the past several years that have not experienced extensive oil and gas activity in the past 18 years. Exploration and development of these lands will likely require access to areas proposed for critical habitat designation. The commenter states that, in many cases, potential environmental impacts are lessened by locating drilling and production equipment onshore for wells that are directionally drilled to a location underlying state waters, eliminating the need for access channels.

Our Response:

The extent to which future drilling in critical habitat areas may occur in order to access resources located in offshore state waters is not known. As stated in earlier, specific projections of the future location and number of future drilling sites are not available for critical habitat areas. As such, the FEA uses past drilling data for this area to project future rates of well drilling in critical habitat areas. To the extent that directionally drilling from critical habitat areas to offsite areas did not occur in the past, but will occur in the future, this activity would be underrepresented in our data and projections, and could result in an underestimate of the number of expected drilling sites in critical habitat. A caveat has been added to the analysis to this effect.

(8)

Comment:

One commenter states that insufficient details were provided in the DEA to determine if the new proposed restrictions to beach maintenance activities (specifically, minimizing beach driving from August to March and specifications for the size and placement of driving lanes) will increase the cost of local government maintenance or conflict with the Texas Open Beaches Act.

Our Response:

The FEA does not contemplate modification of beach maintenance projects to minimize beach driving from August to March, as there is no indication that the Service would recommend this modification for these projects. While specifications for the size and placement of driving lanes have been recommended as part of an

ongoing consultation with the City of Corpus Christi on beach maintenance activities, the City has not identified costs associated with meeting this recommendation to date. As such, no additional costs associated with modifying the size and placement of driving lanes are quantified in the analysis. There has been no indication that these restrictions would lead to a denial of beach access that would conflict with the Texas Open Beaches Act.

(9)

Comment:

One commenter states that some threats to plover posed by development activities may represent conflicts with the Open Beaches Act or private use. These situations include: (1) preventing fill in sandflats that are not intertidal; the Beach/Dune regulations discourage, but do not prohibit fill in sand flats for the purpose of land development; (2) Preventing planting of vegetation in sandflats that are not intertidal; landowners who build in sandflats often construct new vegetated sand dunes to protect against storm surge; (3) Exclusion fencing that restricts beach access would potentially violate the Texas Open Beaches Act.

Our Response:

To date, the Service has recommended avoidance of dredge/fill activities during peak plover use, avoidance of planting vegetation in flats habitat, and use of exclusion fencing as project modifications for several planned development projects. However, none of these projects have been constructed, for various reasons unrelated to the plover. Chapter 4 of the economic analysis acknowledges that in the future such requirements could conflict with some planned private use, which would need to be modified to fit the plover needs. Costs associated with implementing the Service's recommendations are summarized in Section 4.1.1.

(10)

Comment:

The GLO expressed the concern that the economic impacts to oil and gas industries may be high, and that we should consider excluding areas on this basis.

Our Response:

Section 4(b)(2) of the Act states that the Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Wintering plovers in Texas include plovers that are federally endangered on their breeding grounds in the Great Lakes region, as well as plovers that are federally threatened on their breeding grounds in the northern Great Plains and along the Atlantic coast. Those in the Great Lakes region number only about 60 breeding pairs and, by being listed as endangered, are considered by the Service to be in danger of extinction. These endangered individuals spend up to 10 months of the year on the wintering grounds, thus emphasizing the importance of sufficient and suitable wintering habitat. Although they are listed as federally threatened on their wintering grounds, impacts to their wintering habitat can affect whether they return to the Great Lakes region to breed or their breeding success while there. Thus, destruction or adverse modification of wintering habitat essential to plovers that breed in the Great Lakes region may increase their risk of extinction, emphasizing the importance of conserving nonbreeding habitat and essential features for this species through designation of critical habitat. By designating critical habitat for wintering plovers in Texas, the areas designated will be provided some regulatory protections so the plovers are not forced to other areas that are not designated and may be suboptimal. In designating critical habitat, the Service must also consider the recovery needs of the species, such that the essential features and habitat that are identified, if managed, could provide for the conservation of the species.

Weighing the potential economic effects and other potential regulatory effects of designating critical habitat for the piping plover in Texas, against the unique needs of wintering grounds in Texas for those plovers whose breeding grounds are in the Great Lakes, we have determined not to exercise our discretion to exclude areas from the final designation.

Summary of Changes From Proposed Rule

In preparing the final critical habitat revised designation for the wintering population of the piping plover in Texas, we reviewed and considered public and peer reviewer comments on the May 8, 2008, proposed designation of critical habitat (73 FR 29294) and the December 9, 2008, draft economic analysis and environmental assessment (73 FR 74675). Our final designation includes 18 of the 19 vacated units, as put forward in the May 8, 2008, proposed revised designation of critical habitat for the wintering population of the piping plover in Texas (Units TX-3, TX-4, TX-7, TX-8, TX-9, TX-10, TX-14, TX-15, TX-16, TX-18, TX-19, TX-22, TX-23, TX-27, TX-28, TX-31, TX-32, and TX-33), totaling approximately 138,881 ac (56,206 ha). We are not designating critical habitat for court-vacated Unit TX-17, because it did not meet our occupancy criterion (plovers were not documented there over two wintering seasons between 1997 and 2007).

Also, in 50 CFR § 17.95(b), “Piping Plover

(Charadrius melodus)

Wintering Habitat,” we are revising the text at paragraph 1 differently than proposed. In the May 8, 2008 proposed designation, we referred to mud flats as “(between annual low tide and annual high tide)”, whereas in this final rule we describe the mud flats as “(between mean lower low water line and annual high tide)”, as explained earlier in this preamble.

Moreover, we are not revising the text of the current 50 CFR § 17.95(b), “Piping Plover

(Charadrius melodus)

Wintering Habitat,” paragraph 2 as proposed (which describes areas not included in the critical habitat). Instead, we are maintaining the current CFR text for that paragraph, which was set forth in the final rule of October 21, 2008 (73 FR 62839), pertaining to wintering habitat for piping plover in North Carolina. We are doing this because we believe that the text established in the North Carolina final rule is more representative of the critical habitat areas that are excluded for all the States in the wintering habitat for piping plover.

Critical Habitat

Background

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

(i) 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) that may require special management considerations or protection; and

(ii) 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 the use of all methods and procedures that are necessary to bring any endangered species or threatened species to the point at which the measures provided

under the Act are no longer necessary. Such methods and procedures may 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, transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect 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 seeks or 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) of the Act would apply. However, even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain the physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management consideration or protection. Critical habitat designations identify, to the extent known and using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas on which are found those physical and biological features laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing 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 proposed 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, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas 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 required for recovery of the species.

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 could 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, 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.

Primary Constituent Elements (PCEs)

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we consider the physical and biological features essential to the conservation of the species where it winters to be the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement for 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) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.

Data concerning the wintering population of the piping plover found along the Texas Gulf Coast indicate that wintering piping plovers are found on islands along the Texas Gulf Coast as well as on certain areas of the mainland. These islands, known as barrier islands, form barriers to the direct action of the ocean tides on the Texas mainland. These barrier islands parallel much of the Texas coast, forming bays between the islands and the mainland. The ocean side of the barrier islands and the areas of the unprotected mainland are directly exposed to the wave action of the Gulf of Mexico, causing them to regularly erode and accrete. The coastal systems along the bays of the barrier islands and the mainland are less dynamic because they are not directly exposed to the wave action of the Gulf of Mexico.

We derive the specific PCEs required for the wintering population of the piping plover from the biological needs of the wintering population of the piping plover. Behavioral observations of piping plovers on the wintering grounds suggest that they spend the majority of their time foraging (Johnson and Baldassarre 1988, p. 217; Drake

1999, pp. 9-12). Primary prey for wintering plovers includes polychaete marine worms, various crustaceans, insects, and occasionally bivalve mollusks (Zonick and Ryan 1996, p. 26), which they peck from on top or just beneath the surface of moist or wet sand, mud, or fine shell. In some cases, this substrate may be covered by a mat of blue-green algae. When not foraging, plovers undertake various maintenance activities, including roosting, preening, bathing, aggressive encounters (with other piping plovers and other species), and moving among available habitat locations (Zonick and Ryan 1996, p. 27; Haig and Elliott-Smith 2004). The habitats used by wintering birds include beaches, mud flats (nearly flat areas made up of mud), sand flats (nearly flat areas made up of sand), algal flats (nearly flat areas with a layer of algae growing on a moist mud or sand substrate), and washover passes (areas where breaks in the sand dunes result in an inlet). Wintering plovers are dependent on a mosaic of habitat patches, and move among these patches, depending on local weather and tidal conditions (Drake

et al

. 2001, pp. 262-263).

These biological needs and the PCEs required for the wintering population of the piping plover were originally described in the Critical Habitat section of the original rule designating critical habitat for the wintering population of the piping plover (July 10, 2001, 66 FR 36038). In

Cape Hatteras Access Preservation Alliance

v.

U.S. Dept. of the Interior

, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court upheld the PCEs identified in our July 10, 2001, final rule designating critical habitat for the wintering population of the piping plover (66 FR 36038). Thus, we did not change PCEs previously identified, which remain based on the best available scientific information. They constitute the features that are essential for the conservation of wintering piping plovers along the coasts of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.

Under the Act and its implementing regulations, we are required to identify the known physical and biological features within the geographical area known to be occupied at the time of listing that are essential to the conservation of the piping plover and which may require special management considerations or protections. The physical and biological features are those PCEs laid out in a specific spatial arrangement to be essential to the conservation of the species. All areas designated as critical habitat for the wintering population of the piping plover are occupied, are within the species' historic geographic range, and contain sufficient PCEs to support at least one life history function.

Based on the needs and our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species in its wintering grounds, we have determined that wintering piping plover's PCEs are the habitat components that support foraging, roosting, and sheltering and the physical features necessary for maintaining the natural processes that support these habitat components. The primary constituent elements are:

(1) Intertidal sand beaches (including sand flats) or mud flats (between the MLLW and annual high tide) with no, or very sparse, emergent vegetation for feeding. In some cases, these flats may be covered or partially covered by a mat of blue-green algae.

(2) Unvegetated or sparsely vegetated sand, mud, or algal flats above annual high tide for roosting. Such sites may have debris or detritus and may have micro-topographic relief (less than 20 in (50 cm) above substrate surface) offering refuge from high winds and cold weather.

(3) Surf-cast algae for feeding.

(4) Sparsely vegetated backbeach, which is the beach area above mean high tide seaward of the dune line, or in cases where no dunes exist, seaward of a delineating feature such as a vegetation line, structure, or road. Backbeach is used by plovers for roosting and refuge during storms.

(5) Spits, especially sand, running into water used for foraging and roosting.

(6) Salterns, or bare sand flats in the center of mangrove ecosystems that are found above mean high water and are only irregularly flushed with sea water.

(7) Unvegetated washover areas with little or no topographic relief for feeding and roosting. Washover areas are formed and maintained by the action of hurricanes, storm surges, or other extreme wave actions.

(8) Natural conditions of sparse vegetation and little or no topographic relief mimicked in artificial habitat types (e.g., dredge spoil sites).

This final designation is designed for the conservation of the PCEs necessary to support the life history functions that were the basis for the proposal and the areas containing those PCEs in the appropriate spatial arrangement essential for the conservation of the species where it winters. Because not all life history functions require all the PCEs, not all critical habitat will contain all the PCEs.

Furthermore, because this revised critical habitat designation is only for the wintering piping plover population in Texas, we did not consider features that are essential to the conservation of the species where it breeds.

Methods

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available in determining areas occupied at the time of listing that contain the physical or biological features essential to the conservation of the wintering population of the piping plover, areas unoccupied at the time of listing that are essential to the conservation of the wintering population of the piping plover, or both. We only designate areas outside the geographical area occupied by a species when a designation limited to its present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)). We are not designating any areas outside the geographical area presently occupied by the species, because occupied areas are sufficient for the conservation of the species, as explained in

Criteria Used To Identify Critical Habitat,

below.

We have also reviewed available information that pertains to the habitat requirements of this species. These sources included, but were not limited to, data in reports submitted during section 7 consultations and by biologists holding section 10(a)(1)(A) recovery permits, research published in peer-reviewed articles and presented in academic theses and agency reports, and recovery plans. We conducted additional censuses to verify that there are still present occurrences at the original occurrences at time of listing (1985). To determine the most current distribution of wintering piping plovers in Texas, we evaluated these areas using wintering piping plover occurrence data from 1991, 1996, 2001, and 2006 international piping plover winter population censuses. We considered these data along with other occurrence data (including presence or absence survey data), research published in peer-reviewed articles and presented in academic theses and agency reports, and information received during the development of the July 10, 2001, designation of critical habitat for the wintering population of the piping plover (see final rule at 66 FR 36038).

To map bayside areas containing physical and biological features determined to be essential to the conservation of the species (see Primary Constituent Elements for the Wintering

Population of the Piping Plover section below), we used data on known piping plover wintering locations, 1992 National Wetlands Inventory (NWI) data (except for Unit TX-22, which had 2001 data available) fitted to 2005 NAIP aerial photographs, and regional GIS coverages that defined shorelines. Based on their NWI classification, 10 wetland habitats for the bayside areas met our definition of PCEs (see

Primary Constituent Elements

section above). Their NWI codes and brief descriptions are provided below.

• M2USN - Marine sandy coastline (beach), regularly inundated by tides.

• M2USP - Marine sandy coastline (beach), irregularly inundated by tides.

• E2AB1N - Estuarine (bayside) algal mud or sand flats, regularly inundated by tides. Algal flats are nearly flat areas with a layer of algae growing on a moist mud or sand substrate; they are otherwise devoid of vegetation.

• E2AB1P - Estuarine (bayside) algal mud or sand flats, irregularly inundated by tides.

• E2AB3M - Estuarine (bayside) grass flats of mud or sand, irregularly inundated by tides. Grass flats are flat or nearly flat areas of mud or sand with seagrass.

• E2USM - Estuarine (bayside) sandy shore (beach/sandbar), rarely exposed due to tidal fluctuation.

• E2USN - Estuarine (bayside) sandy shore (beach/sandbar), regularly inundated by tides.

• E2USP - Estuarine (bayside) sandy shore (beach/sandbar), irregularly inundated by tides.

• L1UBKhs - Impounded, artificially flooded open water dredge spoil pit, greater than 20 ac (8 ha).

• L2USKhs - Impounded, artificially flooded sandy bottom dredge spoil pit, greater than 20 ac (8 ha).

We are aware that wintering piping plovers in Texas also use a NWI wetland habitat that is classified as subtidal with rooted vascular vegetation (submerged plants with roots in the sand or mud), which is usually five or more species of seagrass. Although that habitat is classified as subtidal and appears in the NAIP aerial photographs as such, when portions of it are occasionally exposed at very low tides, wintering plovers forage in them. However, seagrass beds are usually submerged and unavailable to the plovers for foraging, so we do not consider them to be features essential to the conservation of the species (primary constituent elements).

To map the gulfside areas, we used 2005 NAIP imagery as a base from which the vegetation and water lines were digitized at a scale of 1:5,000 (using ESRI ArcMap 9.2 software) to produce polygons of critical habitat. These polygons are our best and most accurate representation of vegetation lines, MLLW, and other boundaries. The MLLW was used as the lower limit of the intertidal habitat used by wintering piping plovers. For most of the coastline we were mapping, erosion and accretion from storm events had shifted the beach and, thus, the true MLLW from what was defined by NOAA. Therefore, the MLLW lines created by NOAA were often misaligned with the shoreline in the 2005 NAIP aerial photography, and did not run approximately parallel to the beach as the MLLW generally does. The exception was with the MLLW for Unit TX-3. The NOAA-defined MLLW for that unit runs approximately parallel to the beach, following the contours of the gulf floor. We used the NOAA-defined MLLW for Unit TX-3 to estimate the true MLLW for the other areas we are designating. In that unit, we measured the average distance from the well-aligned MLLW line to the shoreline in the 2005 NAIP aerial photographs. We took measurements every 328 ft (100 m) on the NAIP photography along Unit TX-3, and averaged them. The 184-ft (56-m) average distance was then used as the estimated MLLW line that was applied in all coastal (gulfside) areas. The only NOAA tidal station located along the gulfside of the coast in the area where critical habitat is being designated measured the MLLW at 4 ft (1.2 m) below the mean tide line at that site. Using NOAA bathymetric (ocean water depth) data, we confirmed that 184 ft (56 m) distance from shore provided a reasonable estimate of that MLLW. The landward limit of the gulfside critical habitat units was usually defined by densely vegetated dunes, which do not provide habitat for piping plovers. The vegetation line in the NAIP photographs was used to delineate the landward limit in all but a few cases. We excluded one building from the boundary by mapping around it. Where narrow beach access roads have been cut through the dunes, we mapped a line across the road to connect the gulfside edge of the vegetation on either side of the road. Access roads cut in the vegetated portion of dunes are not included within the critical habitat boundaries.

In our proposed designation, we created the lines delineating areas containing the essential features by using an unadjusted high level of precision for calculating the UTMs. In preparing this final designation, we realized that this was an artificial level of precision, because of several reasons, including but not limited to the following: the aerial photographs we used in generating boundaries characteristically have distortions; we used multiple sources of reference data with varying resolutions and precisions; and the heads-up digitizing utilized either directly or during development of source data may have introduced some error during our GIS processing. In other words, the data used did not actually have the degree of detail to accurately provide information to an unadjusted high level of precision. It was our desire to eliminate an unintentionally confusing and potentially inaccurate degree of precision in our calculations. To better reflect the degree of reasonable precision available from the existing data, we applied a smoothing algorithm to the lines defining the critical habitat polygons using a 10 meter tolerance. The type of polygon smoothing/simplification that we utilized during our GIS processing applied a published algorithm (Douglas and Peucker, 1973) with enhancements and is known within the ESRI ArcMap toolset as 'POINT_REMOVE'. The process removes extraneous bends and small intrusions and extrusions from a line without destroying its essential shape. It keeps the so-called critical points that depict the essential shape of a polygon and removes all other redundant details. We therefore recalculated the UTM coordinates using the resulting smoothed polygons. Leaving the calculations and coordinates at an unaltered high level of precision would, effectively, be inaccurate, and using the smoothed polygons allows us to determine the most accurate and reasonably precise delineation of the polygons, using the best available science.

All polygons generated in our mapping process were simplified using tools in ArcGIS 9.3 software as described above. The location of each remaining UTM coordinate point was then generated for

Federal Register

publication using XTools 5.2 software. The polygon smoothing function altered the edges of polygons; in so doing, it added and deleted slivers of area in all of the units and subunits. This resulted in a slight addition of area overall, although some units lost a small amount of area, while others gained a small amount of area. The smoothing resulted in a net gain of 148 ac. The use of the smoothing algorithm with a 10-meter tolerance resulted in a 99.6 per cent overlap of the original polygons, reduced extraneous and potentially erroneous, data points by 75 per cent, and resulted in a very slight size alteration (a 0.11 per cent increase) of

the originally proposed 138,881 acres. This also allowed a greater efficiency in the production of the description of designated areas, and results in one fourth the number of coordinate pairs required to describe the polygons. We believe this provides the most accurate and reasonably precise boundaries we can, using the best scientific information available.

When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures, because such lands lack PCEs for the piping plover. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands.

We measured the accuracy of the aerial photographs we used by gathering GPS readings at 29 locations and plotting them over the photographs to determine how close those photo points were to actual locations. The offset distance ranged from 10 to 43 ft (3 to 13 m). This information is in the GIS metadata to document the data's horizontal accuracy. This offset distance was sufficiently small that we were able to conclude we had excluded built structures. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification, unless the specific action would affect the physical and biological features essential for the conservation of the species in the adjacent critical habitat.

The NWI data allowed areas without PCEs to be excluded from critical habitat designation and PCEs to be delineated more precisely. Areas without PCEs appear as holes in the designated unit or subunit. The maps that are included in this rule are at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate those maps can be viewed at a finer scale so that the holes where critical habitat is not designated within a unit or subunit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

.

We included those areas within or adjacent to the 19 court-vacated units that contain essential physical or biological features along bay and gulf shorelines for which occurrence data indicate a consistent use by piping plovers, with observations over two or more wintering seasons between 1997 and 2007. We have not included the area of Allyn's Bight (court-vacated Unit TX-17), because plovers were not documented there over two wintering seasons between 1997 and 2007. While Unit TX-17 continues to have some PCEs in two small, disjunct fragments, they are no longer in sufficient qualtity nor appropriate spatial arrangement to function in providing for the needs of the species, and, therefore, this unit is not included in this revised designation. It is not suitable for critical habitat designation. Within the remaining 18 court-vacated units, we also did not include very small areas (generally less than 5 ac (2.0 ha)) and areas separated from larger polygons containing the PCEs. We are unable to now determine, but believe that when these areas were mapped in our original designation in 2001, either there were PCEs present that connected them to the larger polygons of PCEs or they were included in error because our mapping methodology was not as precise as the methodology we are using for this revised designation. Plovers were not documented in these small and disjunct areas over two wintering seasons between 1997 and 2007. In contrast, we expanded the boundaries of units to capture complete polygons of PCEs, which we believe have shifted outside the boundaries we designated originally due to storms or other natural events. The boundaries of these units have expanded slightly in these areas, but their use by plovers and their occupancy have not significantly changed. By expanding some boundaries to capture larger polygons and shrinking other boundaries to remove small and disjunct polygons, we have provided an appropriate spatial arrangement of critical habitat for the wintering population of the piping plover in Texas.

Delineating specific locations for designation as critical habitat for the wintering population of the piping plover is difficult because the coastal areas they use are constantly changing due to storm surges, flood events, and other natural geophysical alterations of beaches and shoreline. Our textual descriptions of the boundaries of each unit use reference points (such as roads or channels), latitude/longitude coordinates, the edge of a PCE (such as the edge of a sand flat or mud flat), the MLLW line, or the edge of a management unit (such as a park or municipality). Within the external boundary for each unit, the unit itself is restricted to only those areas that contain the physical and biological features needed by wintering plovers (the PCEs). Within the external boundary, those areas that do not contain the PCEs were identified and explicitly excluded in the designation by drawing internal boundary lines around them. Unit boundaries were drawn to exclude manmade structures, such as roads or cuts to allow boat traffic. However, bollards, which are small posts placed to preclude driving on the beach, are not PCEs, and we exclude them from the boundary of critical habitat, although they are too small to delete from maps at the scale of 1:5,000 that we used to delineate the critical habitat boundaries.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain the features that are essential to the conservation of the species and that may require special management considerations or protections. Activities that may destroy or adversely modify critical habitat are those for which the affected critical habitat would not remain functional to serve its intended conservation role for the species. More specifically, such activities could eliminate or reduce the habitat necessary for foraging by eliminating or reducing the piping plovers' food base; destroying or removing available upland habitats necessary for protection of the birds during storms or other harsh environmental conditions; increasing the amount of vegetation to levels that make foraging or roosting habitats unsuitable; and/or increasing recreational activities to such an extent that the amount of available undisturbed foraging or roosting habitat is reduced, with direct or cumulative adverse effects to individuals and completion of their life cycles. Examples of actions that have effects on wintering piping plover habitats include, but are not limited to:

(1) Disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals;

(2) Predation, especially by falcons, hawks, coyotes, bobcats and feral cats;

(3) Beach maintenance (e.g., nourishment (adding sand) and cleaning) and stabilization efforts (e.g., construction of jetties and other hard structures).

(4) Oil and other hazardous materials spills and cleanup;

(5) Discharge of freshwater from oil and gas activities;

(6) Construction of dwellings, roads, marinas, and other structures, and associated activities including staging of materials and equipment; and/or

(7) Dredging and dredge spoil placement, and associated activities including staging of equipment and materials.

These activities may destroy or adversely modify critical habitat by:

(1) Reducing the value of a site by significantly disturbing plovers from activities such as foraging and roosting (including levels of human presence, and predators that follow human presence, significantly greater than those currently experienced);

(2) Significantly and detrimentally altering the topography of a site (such alteration may affect hydrology of an area or may render an area unsuitable for roosting);

(3) Significantly and detrimentally altering the inputs of sediments and nutrients necessary for the maintenance of beach-shaping and biologic processes that ensure appropriately configured and productive systems;

(4) Introducing significant amounts of vegetation (through changes in hydrology such as severe rutting or changes in storm or wastewater discharges);

(5) Significantly and detrimentally altering the hydrology of tidal flats;

(6) Significantly and detrimentally altering water quality, which may lead to decreased diversity or productivity of prey organisms or may have direct detrimental effects on piping plovers (as in the case of an oil spill); and

(7) Impeding natural processes that create and maintain washover passes and sparsely vegetated intertidal feeding habitats.

As described in more detail in the unit descriptions below, we find that the PCEs within each unit may require special management considerations or protection due to threats to the wintering population of the piping plover or its habitat.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available in determining areas that contain the features that are essential to the conservation of the wintering population of the wintering population of the piping plover. All revised critical habitat units in Texas are within areas that we have determined were occupied at the time of listing, and that contain the PCEs in the appropriate spatial arrangement needed to support life history functions essential for the conservation of the species where it winters. All units which we designate as critical habitat have occurrence data that indicate a consistent use. That is, occupancy has been documented over two or more wintering seasons, which is the same criterion used in the original 2001 designation. We used the best scientific data available in determining areas that contain the features that are essential to the conservation of the wintering population of the piping plover, as discussed in the

Methods

section above. We have not included additional unoccupied coastal areas in the designation at this time that might become occupied at some point, because we cannot predict when and where a dynamic coastline shift may occur, and whether this will result in new or different areas that will develop the PCEs, or if these areas may support plovers.

The units were delineated by compiling existing relevant spatial data of the unit descriptions described in our 2001 final rule designating critical habitat for the wintering population of the piping plover (66 FR 36038), refining the existing descriptions using our National Wetlands Inventory data, and mapping in such a manner that the units contain the PCEs (as described) and do not contain any structures or other features that are not identified as PCEs. However, bollards are excluded, but are too small to be removed digitally from our maps. To further ensure that no manmade features are included in critical habitat, bollards are expressly excluded by text in the rule and are not included for designation as critical habitat. Using the information compiled above, GIS was used to analyze and integrate the relevant data layers for the areas of interest in order to determine those areas that include PCEs. See the

Methods

section above for additional discussion of mapping techniques.

We did not designate areas that do not contain one or more of the PCEs or areas that: (1) Are highly degraded and not restorable; and (2) are small, highly fragmented, or isolated and may provide little or no long-term conservation value. We included areas containing one or more PCEs where occurrence data exist and where the area: (1) Provides a patchwork of the features essential for the conservation of the species; (2) offers dispersal capabilities or is in proximity to other wintering piping plover occurrences that would allow for survival and recolonization following major natural disturbance events (e.g., hurricanes); (3) is of sufficient size to maintain the quantity and appropriate spatial arrangement of the physical and biological features to support occurrences; and (4) is representative of the historic geographic distribution of occupied areas that will help prevent further range collapse of the species and will provide for the conservation of the species.

Within the 19 areas (Units TX-3, TX-4, TX-7, TX-8, TX-9, TX-10, TX-14, TX-15, TX-16, TX-17, TX-18, TX-19, TX-22, TX-23, TX-27, TX-28, TX-31, TX-32, and TX-33) vacated and remanded to the Service for reconsideration, we found no unoccupied areas that we determined to be essential to the conservation of the species. The 18 units in Texas we designate (TX-17 was not designated) cover a small area relative to the total area used by wintering piping plovers along the coasts of the Gulf of Mexico, Atlantic Ocean, and Caribbean islands. That total occupied wintering area is vast. In comparison, unoccupied areas along the Texas coast are relatively small. Wintering plovers in Texas exhibit strong site fidelity and small home range size (Drake

et al

. 2001, pp. 262-264). In a study of 49 radio-marked plovers on a Texas barrier island, no plovers left the study area during a 9-month study (Drake 1999, p.11). We have no information to inform us where plovers go if they are not using the areas of documented use, so we are unable to predict which areas currently unoccupied might be occupied in the future. We recognize that climate change may cause changes in the arrangement of occupied habitat patches. However, the information currently available on the effects of climate change does not make sufficiently precise estimates of the location and magnitude of the effects, so we are unable to determine what additional areas would be needed. Thus, we do not consider unoccupied areas in Texas to be essential to the conservation of the species. Therefore, we propose no areas in Texas outside the geographical area occupied by the species at the time of listing.

In the vacated Unit TX-17, the PCEs have been reduced to two small and disjunct fragments, and the unit has not been observed to have been occupied since 1997. Therefore, we do not consider this unit currently suitable for critical habitat designation.

Final Critical Habitat Designation

We are designating 18 units as revised critical habitat in Texas for the wintering population of the piping plover. The critical habitat units described below constitute our current best assessment of areas that meet the

definition of critical habitat for wintering piping plovers in Texas. We have retained the same unit and subunit numbers that were vacated by the court. Units that were not vacated and remain critical habitat are not described, and vacated Unit TX-17 is not described because we did not designate it in this revised critical habitat designation. Table 1 shows the units that are occupied, the threats requiring special management or protections, land ownership, and approximate area encompassed within each unit.

Table 1.—Critical habitat units for the wintering piping plover.

Unit

Threats to PCE's that may require special management or protections

Land Ownership

Total Acres (Hectares)

Subunit TX-3A:

South Padre Island

- Gulf of Mexico Shoreline

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; residential and commercial development; recreational use, including beach maintenance, human, vehicle, and domestic animal disturbance, and predation

Federal, State, County, Private

2,891 (1,170)

Subunit TX-3B:

South Padre Island

-Interior

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; residential and commercial development; recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State, Private

44,137 (17,862)

Subunit TX-3C:

North Padre Island

- Interior

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance

State, Private

50,897 (20,597)

Subunit TX-3D:

North Padre Island

- Gulf of Mexico

Oil and gas activities; residential and commercial development; recreational use, including beach maintenance, human, vehicle, and domestic animal disturbance, and predation

State, Private

270 (109)

Subunit TX-3E:

Mesquite Rincon

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

9,623 (3,894)

TX-4.

Lower Laguna Madre Mainland

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State, Private

17,223 (6,970)

TX-7.

Newport Pass/Corpus Christi Beach

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; residential and commercial development; recreational use, including beach maintenance, human, vehicle, and domestic animal disturbance, and predation

State, Private

294 (119)

TX-8.

Mustang Island Beach

Oil and gas activities; residential and commercial development; recreational use, including beach maintenance, human, vehicle, and domestic animal disturbance, and predation

State, City, Private

623 (252)

TX-9.

Fish Pass Lagoons

Oil and gas activities; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

168 (68)

Subunit TX-10A:

Shamrock Island

Oil and gas activities; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

12 (5)

Subunit TX-10B:

Mustang Island

- Unnamed sand flat

Oil and gas activities; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State

2 (1)

Subunit TX-10C:

Mustang Island

- Lagoon Complex

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; residential and commercial development; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

331 (134)

TX-14.

East Flats

Residential and commercial development; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

591 (239)

TX-15.

North Pass

Residential and commercial development; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

805 (326)

TX-16.

San Jose Beach

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State, Private

1,378 (558)

TX-18.

Cedar Bayou/ Vinson Slough

Oil and gas activities; recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State, Private

2,465 (998)

TX-19.

Matagorda Island Beach

Recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State

2,413 (976)

TX-22.

Decros Point

Oil and gas activities; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

544 (220)

TX-23.

West Matagorda Peninsula Beach

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

1,808 (732)

TX-27.

East Matagorda Bay/ Matagorda Peninsula Beach West

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

905 (366)

TX-28.

East Matagorda Bay/ Matagorda Peninsula Beach East

Oil and gas activities, including stockpiling materials, dredge disposal, and discharging fresh water; recreational use, including human, vehicle, and domestic animal disturbance, and predation

State, Private

481 (194)

TX-31.

San Bernard NWR Beach

Recreational use, including human, vehicle, and domestic animal disturbance, and predation

Federal, State, Private

401 (162)

TX-32.

Gulf Beach Between Brazos and San Bernard Rivers

Recreational use, including human, vehicle, and domestic animal disturbance, and predation

State

556 (225)

TX-33.

Bryan Beach and Adjacent Beach

Recreational use, including human, vehicle, and domestic animal disturbance, and predation

State

211 (85)

Total

139,029 (56,263)

The final economic analysis identified marine construction as a potential future impact threatening wintering piping plover critical habitat, but did not identify where it would occur. This is discussed further in the

Economic Analysis

section.

We divide the 18 revised critical habitat units into 24 areas:

(1)Subunit TX-3A: South Padre Island - Gulf of Mexico Shoreline;

(2)Subunit TX-3B: South Padre Island -Interior;

(3)Subunit TX-3C: North Padre Island - Interior;

(4)Subunit TX-3D: North Padre Island - Gulf of Mexico;

(5)Subunit TX-3E: Mesquite Rincon;

(6)Unit TX-4: Lower Laguna Madre Mainland;

(7)Unit TX-7: Newport Pass/Corpus Christi Pass Beach;

(8)Unit TX-8: Mustang Island Beach;

(9)Unit TX-9: Fish Pass Lagoons;

(10)Subunit TX-10A: Shamrock Island;

(11)Subunit TX-10B: Mustang Island - Unnamed sand flat;

(12)Subunit TX-10C: Mustang Island - Lagoon Complex;

(13)Unit TX-14: East Flats;

(14)Unit TX-15: North Pass;

(15)Unit TX-16: San Jose Beach;

(16)Unit TX-18: Cedar Bayou/Vinson Slough;

(17)Unit TX-19: Matagorda Island Beach;

(18)Unit TX-22: Decros Point;

(19)Unit TX-23: West Matagorda Peninsula Beach;

(20)Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West;

(21)Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East;

(22)Unit TX-31: San Bernard NWR Beach;

(23)Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers; and

(24)Unit TX-33: Bryan Beach and Adjacent Beach.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the wintering population of the piping plover, below.

Unit TX-3: Padre Island

Subunit TX-3A: South Padre Island - Gulf of Mexico Shoreline. This subunit consists of 2,891 ac (1170 ha) in Cameron and Willacy Counties, Texas. It is a beach 30.0 mi (48.2 km) in length on the gulfside of South Padre Island, which is a barrier island. The subunit is located within an area bounded on the south by the southern boundary of Andy Bowie County Park, and on the north by the south jetty of Mansfield Channel, which divides North and South Padre Islands. The jetty itself is outside the boundary of the subunit. The eastern boundary is the estimated MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW), and the western boundary is the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. The vegetated dune and Park Road 100, which runs north-south along the western side of the dune, separates Subunits TX-3A and 3B. This subunit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used.

Approximately one quarter of the subunit is in Federal ownership and managed by the Service's Laguna Atascosa National Wildlife Refuge (NWR), and approximately 64 percent is in private ownership. The Service does not own the subsurface mineral rights. Ten percent is State land managed by the GLO, and a small portion at the southern end is County park land managed by Andy Bowie County Park.

Subunit TX-3A is the southernmost unit of the revised critical habitat for the wintering population of the piping plover. It was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this subunit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1), surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation

due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. These threats are of greatest magnitude at the southern end of the subunit where housing developments are to the west of the subunit. Laguna Atascosa NWR is preparing a Comprehensive Conservation Plan (CCP) that should address the wintering population of the piping plover as well as other listed species; however a draft CCP is not yet available. At this time, we are not aware of any additional management plans that address this species in this area.

Subunit TX-3B: South Padre Island -Laguna Madre side. This bayside subunit consists of 44,137 ac (17,862 ha) in Cameron and Willacy Counties, Texas. Its southern boundary extends along the north side of an existing earthen, manmade dike running from the edge of dense dune vegetation to the Laguna Madre along latitude 26° 09' 19.00” N. The dike is not within the boundary of the subunit. The western boundary is the western edge of the intertidal mudflats bordering the eastern shore of the lower Laguna Madre, and the northern boundary is Mansfield Channel. The eastern boundary is dense vegetation of the dunes or, if there is no dense vegetation or dune, the western boundary of Park Road 100. Within that boundary, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the subunit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the subunit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

.

Approximately 42 percent of the land is federally owned and managed by the Service's Laguna Atascosa NWR, and approximately 38 percent is State-owned and managed by the GLO. The remaining 20 percent is in private ownership along the western side of the subunit. The Service does not own the subsurface mineral rights beneath the refuge.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand and mud flats with no or very sparse emergent vegetation for feeding (PCE 1), unvegetated or sparsely vegetated sand and mud flats above high tide for roosting (PCE 2), and sand spits running into the Laguna for foraging and roosting (PCE 5). This subunit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. These threats, particularly vehicle access, are of greatest magnitude at the southern portion of the subunit where roads are near or adjacent to PCE 1. Laguna Atascosa NWR is preparing a Comprehensive Conservation Plan (CCP) that should address the wintering population of the piping plover as well as other listed species; however, a draft CCP is not yet available. At this time, we are not aware of any additional management plans that address this species in this area.

Subunit TX-3C: North Padre Island - Laguna Madre side. This bayside unit consists of 50,897 ac (20,597 ha) in Kenedy and Kleberg Counties, Texas. It is along and within the Laguna Madre and extends from the western boundary of Padre Island National Seashore (PAIS) to the Gulf Intracoastal Waterway (GIWW). The northern boundary of the subunit is a line extending westward from the PAIS (at latitude 27° 4' 29.9” N), and its southern boundary is a line extending westward from the southern boundary of PAIS along the northern edge of the Mansfield Channel. The eastern boundary of this subunit is the western boundary of PAIS when the PCEs extend as far as PAIS or the eastern edge of the sand flats where the PCEs end. The portion of the western boundary north of longitude/latitude coordinate 26°48'38.2”N, 97°28'11.6”W is the eastern edge of the GIWW, and the portion of the western boundary south of the coordinate is the western edge of the intertidal mudflats bordering the eastern shore of the Laguna Madre. Within that boundary, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the subunit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the subunit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

.

Most of the land is State-owned and managed by the GLO. A small portion is in private ownership.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand and mud flats with sparse emergent vegetation for feeding (PCE 1), unvegetated or sparsely vegetated sand, or mud flats above high tide for roosting (PCE 2), and sand spits running into the Laguna for foraging and roosting (PCE 5). This subunit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7). This subunit also contains sparse vegetation and little or no topographic relief mimicked in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE 8).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. At this time we are not aware of any management plans that address this species in this area.

Subunit TX-3D: North Padre Island - Gulf of Mexico. This gulfside subunit consists of 270 ac (109 ha) of beach in Kleberg County, Texas. It extends along the gulf shore of North Padre Island from the northern boundary of PAIS northward 6.2 mi (10 km) to the Nueces County line. The southern boundary is the north boundary of the northeast section of the PAIS. The subunit extends eastward to the MLLW of the Gulf of Mexico (see the

Methods

section

for our derivation of MLLW), and the western boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. This subunit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. Most of the land is owned by the State and managed by the GLO. Approximately one-fifth is in private ownership.

It was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this subunit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. These threats are of greater magnitude at the north end of the subunit, where more roads provide easy access to the PCEs and the subunit is in close proximity to houses. At this time, we are not aware of any management plans that address this species in this area.

Subunit TX-3E: North Padre Island - Mesquite Rincon. This triangular bayside subunit of 9,6238 acres (3,894 hectares) lies on the western shore of the lower Laguna Madre in Kenedy County, Texas. The subunit is generally bounded by Rincon de la Soledad on the southwestern side, Mesquite Rincon on the north, and the GIWW and Rincon de San Jose on the east. The southwestern boundary is an irregular line along the PCEs between the latitude/longitude coordinate points: 26° 44' 10.5” N, 97° 28' 04.5” W at the southeastern point of Rincon de San Jose and 26° 50' 58.1” N, 97° 34' 19.5” W. The northern boundary is the line described between the latitude/longitude coordinate points: 26° 51' 24.2” N, 97° 33' 25.8” W and 26° 51' 24.2” N, 97° 27' 52.7” W. The northern portion of the eastern boundary is the western edge of the GIWW south to latitude/longitude coordinate point 26° 48' 52.7” N, 97° 28' 12.9” W. There the subunit curves westward and skirts a small horseshoe-shaped inlet in the Laguna Madre to the northeastern point of Rincon de San Jose at latitude/longitude coordinate point 26° 48' 43.9” N, 97° 29' 4.7” W. There it continues south in an irregular line along the edge of the PCEs to the southeastern point of Rincon San Jose. Within that boundary (especially the southeastern portion of the subunit and northwestern-running edge), we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the subunit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the subunit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

. Most of the land is in private ownership with a small portion that is State-owned and managed by the GLO.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover including intertidal sand and mud flats with no or very sparse emergent vegetation for feeding (PCE 1), unvegetated or sparsely vegetated sand, or mud flats above high tide for roosting (PCE 2), and sand spits running into the Laguna for foraging and roosting (PCE 5). This subunit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7). This subunit also contains sparse vegetation and little or no topographic relief mimicked in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE 7).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-4: Lower Laguna Madre Mainland

This bayside unit consists of 17,223 ac (6,970 ha) in Cameron and Willacy Counties, Texas, and lies along the western shoreline of the Lower Laguna Madre. The southern boundary is an east-west line at the northern tip of Barclay Island, approximately following latitude 26° 14' 42.2” N. The northern boundary is an east-west line located near the northern tip of El Sauz Island, approximately 1.2 mi (1.9 km) south of the center of the city of Port Mansfield, Willacy County, Texas, and approximately following latitude 26° 32' 7.8” N. The eastern boundary of the unit is the eastern edge of the line of dredge spoils that parallel the western side of the GIWW. The western boundary runs from southeast to northwest and is the western edge of sandy beach and mudflat habitat, approximately following the latitude/longitude coordinate points: latitude/longitude coordinate points: 26° 14' 42.45” N, 97° 19' 32.75” W; 26° 17' 15.54” N, 97° 20' 47.31” W; 26° 20' 10.17” N, 97° 21' 10.94” W; 26° 21' 31.54” N, 97° 22' 48.10” W; 26° 24' 26.64” N, 97° 23' 53.27” W; 26° 26' 8.55” N, 97° 25' 13.33” W; and 26° 32' 5.44” N, 97° 27' 6.91” W. Within that boundary, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the unit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the unit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

.

Approximately one-third of this unit is within the Service's Laguna Atascosa NWR. Approximately half is State-owned and managed by the GLO. The remainder is in private ownership. The Service does not own the subsurface mineral rights beneath the surface of the refuge.

This unit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This unit contains

PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand and mud flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand or mud flats above high tide for roosting (PCE 2). This unit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7). This unit also contains sparse vegetation and little or no topographic relief mimicked in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE 8).

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. Laguna Atascosa NWR is preparing a Comprehensive Conservation Plan (CCP) that should address the wintering population of the piping plover as well as other listed species; however, a draft CCP is not yet available. At this time, we are not aware of any additional management plans that address this species in this area.

Unit TX-7: Newport Pass/Corpus Christi Pass Beach

This unit consists of 294 ac (119 ha) in Nueces County, Texas. It is a gulfside beach unit approximately 5.1-mi (8.2-km) long. The southern boundary is the gulfward extension of Saint Bartholomew Avenue, adjacent to the north end of the seawall. The northern boundary is the edge of the south jetty of the Fish Pass Structure at Mustang Island State Park. The eastern boundary is MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW), and the western boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dune. Packery Channel cuts the beach approximately 0.3 mi (0.5 km) north of the south boundary. The seawall, jetty, bollards, and open water of Packery Channel are not within the boundaries of the unit. This unit is in State and private ownership; the State portion is managed by the Mustang Island State Park.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains PCEs in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. Due to its close proximity to Corpus Christi, this unit receives considerable recreational use and beach cleaning and nourishment. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-8: Mustang Island Beach

This unit consists of 623 ac (252 ha) in Nueces County, Texas. It is a gulfside beach unit approximately 12.5 mi (20.1 km) long. The southern boundary is the edge of the north jetty of the Fish Pass Structure at Mustang Island State Park. The northern boundary is the south side of the Horace Calder Pier in Port Aransas, Texas. The unit is bounded on the east by the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW)) and on the west by the dune line, where the habitat changes from lightly vegetated sandy beach to densely vegetated. The jetty and pier are not within the boundary of the unit. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. The unit is in State and private ownership, with a small municipal park owned and managed by the City of Port Aransas. The State land is managed by the GLO.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development activities; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to beach cleaning and nourishment for recreational use. Due to its close proximity to Corpus Christi, this unit receives considerable recreational use and beach cleaning and nourishment. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-9: Fish Pass Lagoons

This bayside unit consists of 168 ac (68 ha) in Nueces County, Texas. This unit encompasses flats facing Corpus Christi Bay that extend 1.0 km (0.6 mi) on either side of Fish Pass. The inland boundary is a line of dense vegetation, and the bayside boundary is the northeast edge of the tidal sand flats that are a PCE. This unit includes all areas of habitat that contain PCEs 1, 2, 5, and 6 within the area described by a polygon with the following latitude/longitude coordinate points: 27° 42' 14.63” N, 97° 10' 44.70” W; 27° 41' 56.97” N, 97° 10' 8.13” W; 27° 41' 24.35” N, 97° 10' 36.89” W; 27° 41' 18.98” N, 97° 11' 16.79” W; 27° 41' 23.51” N, 97° 11' 31.32” W and 27° 42' 14.63” N, 97° 10' 44.70” W. Within that polygon, six moderate to large polygons from 5 to 64 ac (2 to 25 ha) each and two small polygons less than 1 ac (0.4 ha) each are PCEs and comprise the unit. Most of the unit is owned by the State and managed by the GLO. A few acres are in private ownership.

This unit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This unit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover,

including intertidal sand and/or mud flats with no or very sparse emergent vegetation for feeding (PCE 1), unvegetated or sparsely vegetated sand, or mud flats above high tide for roosting (PCE 2), and sand spits running into the bay for foraging and roosting (PCE 5). This unit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7).

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development activities; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats

Subunit TX-10A: Shamrock Island. This 12-ac (5-ha) island in Nueces County, Texas, was a peninsula extending off of Mustang Island in Corpus Christi Bay until erosion separated the island from the mainland. Five small polygons of sand flats from 1.1 to 6.8 ac (0.4 to 2.7 ha) comprise the subunit. Most of the land is State-owned and managed by the GLO; the remainder is privately owned.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover including intertidal sand flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development activities; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Subunit TX-10B: Mustang Island: Unnamed sand flat. This 2-ac (1-ha) subunit in Nueces County, Texas, is a small, unnamed sand flat near the north edge of the mouth of Wilson's Cut in Corpus Christi Bay. The subunit is the western half of the island that is sand flats landward (easterly) to the western edge of tidal marsh. It is entirely State-owned and managed by the GLO.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2), and sand spits running into the bay for foraging and roosting (PCE 5).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development activities; recreational disturbance of foraging and roosting plovers by humans and domestic animals; and increased predation due to recreational use. The location of the subunit, and the configuration of the polygons of PCEs that comprise this subunit, limit recreational access by vehicles to PCEs 1 and 2. At this time, we are not aware of any management plans that address this species in this area.

Subunit TX-10C: Mustang Island: Lagoon Complex. This 331-ac (134-ha) subunit in Nueces County, Texas, is an extensive lagoon complex that consists of 11 polygons within a larger polygon that extends 2.2 mi (3.5 km) south of Wilson's Cut in Corpus Christi Bay. The southern boundary of the larger polygon begins at the western end at latitude/longitude coordinate point 27° 43' 2,4” N, 97° 10' 19.4” W at the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. It follows the dune line southeast approximately 830 ft (253 m) to a road, then follows the road approximately 945 ft (288 m) to the edge of the tidal sand flat PCE. It follows the southeastern edge of the sand flat northeast to the western edge of a north-south road, where it follows the edge of the sand flat northward to the south edge of a road that runs east-west parallel to the southwestern edge of Wilson's Cut. The northern edge of the boundary is the south edge of the road or the northern extent of the sand flat when it does not reach the road. The western boundary follows the PCEs along their eastern edge at Corpus Christi Bay beginning 409 ft (125 m) southwest of the southwestern edge of Wilson's Cut to the coordinate point at the western edge of the southern boundary. A road transects the larger polygon described above, forming two polygons that exclude the road. The PCEs within the 11 polygons comprise the subunit. Within that boundaries of the 11 polygons, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the polygons that comprise the subunit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the subunit boundaries can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

. The subunit consists of private and State-owned lands.

This subunit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This subunit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover including intertidal sand flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2).

The PCEs in this subunit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and modification and loss of habitat due to uncontrolled recreational access and beach cleaning and stabilization efforts. Road access to the PCEs is extensive. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-14: East Flats

This bayside unit consists of 591 ac (239 ha) in Nueces County, Texas. It is an irregularly shaped intertidal sand flat south of the Corpus Christi Ship Channel. The north boundary is the northern edge of the sand flat near or adjacent to dredge spoil areas bordering

the south side of the Corpus Christi Ship Channel. The northwestern latitude/longitude coordinate is 27° 49' 54.49” N, 97° 6' 14.28” W, and the northeastern latitude/longitude coordinate is 27° 49' 55.29” N, 97° 5' 12.86” W. From there, the sand flat curves southward, and the southeastern edge of it forms a highly irregular line that ends in the southwest portion of the polygon at the eastern edge of a navigation channel from the Corpus Christi Ship Channel to Corpus Christi Bay at latitude/longitude coordinate 51.93” N, 97° 5' 52.58” W. The sand flat continues on the western edge of the navigation channel in a northwesterly direction to latitude/longitude coordinate 27° 49' 22.08” N, 97° 6' 37.04” W. It then curves northeasterly and across the cut to the northern edge at the northwest coordinate. On the east, it abuts the City of Port Aransas. There is a small marshland within the sand flat that bisects the sand flat that is not a PCE and is not included in the unit. The unit is mostly in private ownership, with a small portion of State land managed by the GLO.

This unit was occupied at the time of listing and is currently occupied. Current ocupancy has been confirmed by species experts at least 2 years out of the last 10 years. This unit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand and mud flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2).

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-15: North Pass

This bayside unit consists of 805 ac (326 ha) in Aransas County, Texas. The unit is bounded on the northeast by a line between latitude/longitude coordinates 27° 54' 8.70” N, 97° 0' 36.97” W and 27° 54' 54.53” N, 97° 1' 18.17” W, on the northwest and west by the edge of tidal sand flats in Aransas Bay, on the south by a line running east from coordinate 27° 53' 16.96” N, 97° 2' 22.44” W to unit TX-16, and on the southeast by the landward boundary of unit 16. The unit is all areas that contain the PCEs for the species within a larger area described by a polygon with the following sets of latitude/longitude coordinate points: 27° 54' 8.70” N, 97° 0' 36.97” W; 27° 53' 10.68” N, 97° 1' 21.36” W; 27° 53' 16.96” N, 97° 2' 22.44” W; 27° 53' 33.08” N, 97° 2' 33.05” W; 27° 54' 42.68” N, 97° 2' 4.83” W; 27° 54' 47.59” N, 97° 1' 51.73” W; 27° 54' 54.53” N, 97° 1' 18.17” W and 27° 54' 8.70” N, 97° 0' 36.97” W. Within that boundary, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the unit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale, so that the holes where critical habitat is not designated within the unit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

.

This unit is a remnant of a hurricane washover on San Jose Island. Approximately 18 percent is State-owned and managed by the GLO; the remainder is in private ownership.

This unit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This unit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover, including intertidal sand flats with no or very sparse emergent vegetation for feeding (PCE 1) and unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2). This subunit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7).

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-16: San Jose Beach

This unit consists of 1,378 ac (558 ha) in Aransas County, Texas. It is a gulfside beach unit approximately 19.8 mi (31.9 km) long. The southern boundary is the edge of the north jetty of Aransas Pass. The jetty is not within the boundary of the unit. The south edge of Cedar Bayou Pass is the northern boundary. The eastern boundary is the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW), and the western boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. A small section is in Federal ownership and managed by the Service's Matagorda Island NWR. The Service does not own the subsurface mineral rights. Approximately half of the unit is State-owned and managed by the GLO, and nearly as much is in private ownership.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. The refuge is preparing a CCP that should address the wintering population of the piping plover as well as other listed species; however, the CCP is not yet available. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-18: Cedar Bayou/Vinson Slough

This bayside unit consists of 2,465 ac (998 ha) in Aransas County, Texas. It is a remnant of a hurricane washover area and includes the highly dynamic area of Cedar Bayou, the pass that separates San Jose Island and Matagorda Island. Beginning at the confluence of Vinson Slough and Cedar Bayou, the boundary

follows the shore of Spalding Cove to Long Reef, then continues along a line extending 2.5 miles southwest of Long Reef to the shore of San Jose Island, then along the shore of the island to the landward boundary of Unit TX-16. Within that area, the unit consists of numerous polygons of PCEs; areas that are not PCEs within the described area are not within the boundaries of the unit. Those areas appear as holes in the unit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the unit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

. The southern and southeastern boundary of the unit is described by a line with the following sets of latitude/longitude coordinate points: 28° 1' 21.76” N, 96° 57' 51.24” W; 28° 1' 12.77” N, 96° 57' 31.18” W; 28° 2' 3.07” N, 96° 56' 45.84” W; 28° 2' 15.92” N, 96° 56' 25.10” W; 28° 2' 30.32” N, 96° 56' 11.97” W; 28° 3' 15.62” N, 96° 54' 20.01” W; 28° 3' 58.58” N, 96° 53' 24.65” W; 28° 4' 1.15” N, 96° 52' 14.65” W; 28° 3' 31.74” N, 96° 51' 38.29” W and 28° 3' 17.69” N, 96° 51' 38.47” W. The specific northern boundary is described by a line with the following sets of latitude/longitude coordinate points: 28° 5' 44.24” N, 96° 54' 8.16” W; 28° 5' 13.23” N, 96° 52' 44.85” W; 28° 4' 33.99” N, 96° 50' 46.55” W; 28° 4' 38.92” N, 96° 50' 40.79” W and 28° 4' 22.98” N, 96° 50' 22.94” W. The eastern boundary at the northeastern end of the unit is units TX-16 and TX-19 on the gulfside. The western boundary is the western edge of tidal sand flats in Aransas Bay.

This area includes a small section of federally owned land managed by the Service's Matagorda Island NWR and a small section of State-owned land. The remaining area is privately owned. The Service does not own the subsurface mineral rights beneath the NWR.

This unit was occupied at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. This unit contains PCEs in the appropriate spatial arrangement essential to the conservation of the piping plover including intertidal sand flats with no or very sparse emergent vegetation for feeding (PCE 1), unvegetated or sparsely vegetated sand flats above high tide for roosting (PCE 2), and sand spits running into the bay for foraging and roosting (PCE 5). This unit also includes unvegetated washover areas with little or no topographic relief for feeding and roosting (PCE 7).

The PCEs in this unit may require special management considerations or protections to ameliorate the threats oil and gas exploration and development activities; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use. Vehicle use of the unit may be limited somewhat by accessibility. The refuge is preparing a CCP that should address the wintering population of the piping plover as well as other listed species; however, the CCP is not yet available. At this time, we are not aware of any additional management plans that address this species in this area.

Unit TX-19: Matagorda Island Beach

This unit consists of 2,413 ac (976 ha) in Calhoun County, Texas. It is a gulfside beach unit approximately 37.1 mi (59.7 km) long. The southern boundary is the northern edge of Cedar Bayou Pass, and the northern boundary is the southern edge of Pass Cavallo. At Pass Cavallo, the unit curves from the eastern gulfside passing between the south edge of the pass and the north edge of the dunes to a small area on the bayside. The eastern boundary is the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW), and the western boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. The federally owned land in this unit is managed by the Service's Matagorda Island NWR, which does not own the subsurface mineral rights. This unit also includes a small section of land in State ownership.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; increased predation due to recreational use; and access by refuge staff and others for sea turtle monitoring efforts. The refuge is preparing a CCP that should address the wintering population of the piping plover as well as other listed species; however, a CCP is not yet available. At this time, we are not aware of any additional management plans that address this species in this area.

Unit TX-22: Decros Point

This unit consists of 544 ac (220 ha) at the Matagorda/Calhoun County line, in Texas. It is a gulfside beach unit approximately 4.8 mi (7.7 km) long that wraps around to the bayside. This unit was originally the southern tip of the Matagorda Peninsula. It was made into an island by the dredging of the Matagorda Ship Channel, the edge of which is the northern boundary of the unit. The unit is horseshoe in shape with the east side along the Gulf of Mexico and the west side along Matagorda Bay; the two are connected at their southern boundary by habitat from the north edge of Pass Cavallo northward to the dune line. Densely vegetated sand dunes run north to south in the center of the horseshoe and are not within the boundary of the critical habitat because they are not a PCE. The eastern boundary is the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW), and the western boundary is the western edge of tidal sand flats on the east side of Matagorda Bay. Within the bayside of the boundary, we have excluded from critical habitat designation areas that do not contain PCEs. Those areas appear as holes in the unit. The map that is included in this rule is at such a large scale that the holes where critical habitat is not designated do not appear in them. However, the GIS coverages that we used to generate the map can be viewed at a finer scale so that the holes where critical habitat is not designated within the unit boundary can be seen. Those GIS coverages can be accessed at

http://criticalhabitat.fws.gov

. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used.

Approximately 60 percent of the unit is in State ownership managed by the GLO. The remainder is privately owned.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy

has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach (PCE 4) for roosting and sheltering.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development activities; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. Due to a lack of road access, this unit does not receive much recreational vehicle use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-23: West Matagorda Peninsula Beach

This unit consists of 1,808 ac (732 ha) of shoreline in Matagorda County, Texas. It is a gulfside beach unit approximately 23.9 mi (38.5 km) long. The southern boundary is the northern jetty of the Matagorda Ship Channel. The northern boundary is the Old Colorado River channel. The MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW) is the eastern boundary, and the western boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. Just under half of the unit is State-owned and managed by the GLO; the remainder is privately owned.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; activities associated with residential and commercial development; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West

This unit consists of 905 ac (366 ha) of shoreline in Matagorda County, Texas. It is a gulfside beach unit approximately 14.1 mi (22.8 km) long. The southwestern boundary is the northeastern edge of the Old Colorado River channel. The unit runs along the beach 14 mi (23 km) to the northeastern boundary opposite Eidelbach Flats described by a line between the latitude/longitude coordinate points: 28° 41' 2.26” N, 95° 46' 29.04”W and 28° 41' 6.74” N, 95° 46' 32.46” W. The southeastern boundary is the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW). The northwestern boundary runs along the dune line, where the habitat changes from lightly vegetated sandy beach to densely vegetated dunes. This unit does not include bollards within the critical habitat designation, although they may be present within the described area because they are too small to be detected with the mapping methodology used. Just over half of the unit is State-owned and managed by the GLO; the remainder is privately owned.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Current occupancy has been confirmed by species experts at least 2 years out of the last 10 years. Habitat in this unit contains features in the appropriate spatial arrangement that are essential to the conservation of the wintering population of the piping plover, including sand flats with little or no emergent vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting, sheltering, and feeding.

The PCEs in this unit may require special management considerations or protections to ameliorate the threats of oil and gas exploration and development, including stockpiling materials on sand flats or disposing of dredged material on them, and discharging fresh water across unvegetated tidal flats; recreational disturbance of foraging and roosting plovers by humans, vehicles, and domestic animals; and increased predation due to recreational use. At this time, we are not aware of any management plans that address this species in this area.

Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East

This gulfside unit consists of 481 ac (194 ha) in Matagorda County, Texas. It extends along the Gulf beach southwest and northeast of Brown Cedar Cut. The cut is not within the boundary of the unit. This unit abuts portions of the southeastern edges of units TX-29 and TX-30, which are on the East Matagorda Bay side. The southwestern boundary is approximately 4 mi (6.5 km) southwest of Brown Cedar Cut at a line described by the following sets of latitude/longitude coordinate points: 28° 43' 11.91”N, 95° 42' 25.47”W and 28° 43' 17.09”N, 95° 42' 28.56”W. The northeastern boundary is approximately 2.8 mi (4.5 km) northeast of Brown Cedar Cut to the point where Texas Farm to Market Road 457 intersects the beach. The southeastern boundary is the MLLW of the Gulf of Mexico (see the

Methods

section for our derivation of MLLW). The northwestern boundary runs along the dune line where the habitat changes from lightly vegetated, sandy beach to densely vegetated dunes. This unit does not include bollards within the critical habitat boundaries, although they may be present within the described area because they are too small to be detected with the mapping methodology used. Approximately one-third is in State ownership and managed by the GLO; the remaining two-thirds is privately owned.

The unit was occupied by piping plovers at the time of listing and is currently occupied. Curren

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