[Federal Register: June 12, 2006 (Volume 71, Number 112)]
[Proposed Rules]
[Page 33703-33721]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jn06-33]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU48
Endangered and Threatened Wildlife and Plants; Amended
Designation of Critical Habitat for the Wintering Population of the
Piping Plover
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
amend critical habitat for the wintering population of the piping
plover (Charadrius melodus) in North Carolina under the Endangered
Species Act of 1973, as amended (Act). In total, approximately 1,827
acres (ac) (739 hectares (ha)) fall within the boundaries of the
proposed amended critical habitat designation, located in Dare and Hyde
counties, North Carolina.
DATES: We will accept comments from all interested parties until August
11, 2006. We must receive requests for public hearings, in writing, at
the address shown in the ADDRESSES section by July 27, 2006.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of the following methods:
1. You may submit written comments and information to Pete
Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh
Fish and Wildlife Office, P. O. Box 33726, Raleigh, North Carolina
27636-3726.
2. You may hand-deliver written comments to our office, at Raleigh
Field Office, 551-F Pylon Drive, Raleigh, North Carolina 27606.
3. You may send comments by electronic mail (e-mail) to
ncplovercomments@fws.gov. Please see the ``Public Comments Solicited''
section under SUPPLEMENTARY INFORMATION for file format and other
information about electronic filing.
4. You may fax your comments to 919-856-4556.
5. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Raleigh Fish and Wildlife Office, 551-F Pylon Drive,
Raleigh, North Carolina 27606 (telephone 919-856-4520).
FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor,
Raleigh Fish and Wildlife Office, telephone 919-856-4520, facsimile
919-856-4556.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule are hereby solicited. We particularly
seek comments concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
et seq.), including whether the benefit of designation will outweigh
any threats to the species due to designation;
(2) Specific information on the amount and distribution of
wintering piping plover habitat in North Carolina, and what areas
should be included in the designation that were occupied at the time of
listing that contain the features that are essential for the
conservation of the species and why, and what areas were not occupied
at the listing is essential to the conservation of the species and why;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments;
(6) Whether our determination that areas identified as not being in
need of special management is accurate; and
(7) Information to assist the Secretary of the Interior in
evaluating habitat with physical and biological features essential to
the conservation of the piping plover on Cape Hatteras National
Seashore, administered by the National Park Service, based on any
benefit provided by the Interim Protected Species Management Strategy/
Environmental Assessment (Interim Strategy) to the conservation of the
wintering piping plover.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of
[[Page 33704]]
several methods (see ADDRESSES section). Please submit e-mail comments
to ncplovercomments@fws.gov in ASCII file format and avoid the use of
special characters or any form of encryption. Please also include
``Attn: Wintering Piping Plover Critical Habitat'' in your e-mail
subject header and your name and return address in the body of your
message. If you do not receive a confirmation from the system that we
have received your e-mail message, contact us directly by calling our
Raleigh Fish and Wildlife Office at phone number 919-856-4520. Please
note that the e-mail address ncplovercomments@fws.gov will be closed
out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment, but you should be aware that the Service may be required to
disclose your name and address under the Freedom of Information Act.
However, we will not consider anonymous comments. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the Raleigh
Fish and Wildlife Office (see ADDRESSES).
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under section 4(b)(2) of the Act, there are significant
limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional
protection to habitat only where there is a Federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat, but it does not
require specific actions to restore or improve habitat.
Currently, only 475 species, or 36 percent of the 1,312 listed
species in the U.S. under the jurisdiction of the Service, have
designated critical habitat. We address the habitat needs of all 1,312
listed species through conservation mechanisms such as listing, section
7 consultations, the section 4 recovery planning process, the section 9
protective prohibitions of unauthorized take, section 6 funding to the
States, the section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas proposed for designation, we
evaluated the benefits of designation in light of Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004).
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This proposed critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the
[[Page 33705]]
economic effects and the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These costs,
which are not required for many other conservation actions, directly
reduce the funds available for direct and tangible conservation
actions.
Background
In this proposed rule, it is our intent to discuss only those
topics directly relevant to the amended designation of critical habitat
for the wintering population of piping plover in North Carolina. For
more information on piping plover wintering critical habitat, refer to
the final rule designating critical habitat for the wintering
population of the piping plover published in the Federal Register on
July 10, 2001 (66 FR 36038).
The piping plover is a small, pale-colored shorebird that breeds in
three separate areas of North America--the Northern Great Plains, the
Great Lakes, and the Atlantic Coast. The piping plover winters in
coastal areas of the United States from North Carolina to Texas, along
the coast of eastern Mexico, and on Caribbean islands from Barbados to
Cuba and the Bahamas (Haig and Elliott-Smith 2004). Information from
observation of color-banded piping plovers indicates that the winter
ranges of the breeding populations overlap to a significant degree.
Therefore, the source breeding population of a given wintering
individual cannot be determined in the field unless it has been banded
or otherwise marked.
Piping plovers begin arriving on the wintering grounds in July,
with some late-nesting birds arriving in September. A few individuals
can be found on the wintering grounds throughout the year, but
sightings are rare in late May, June, and early July. Migration is
poorly understood, but a recent study suggests that plovers use inland
and coastal stopover sites when migrating from interior breeding areas
to wintering grounds (V.D. Pompei and F. J. Cuthbert, unpublished
data). Concentrations of spring and fall migrants also have been
observed along the Atlantic Coast (USFWS 1996). In late February,
piping plovers begin leaving the wintering grounds to migrate back to
breeding sites. Northward migration peaks in late March, and by late
May most birds have left the wintering grounds (Haig and Elliott-Smith
2004). North Carolina is uniquely positioned in the species' range,
being the only State where the piping plover's breeding and wintering
ranges overlap and the birds are present year-round. A complete
description of the biology and ecology of the piping plover can be
found in Haig and Elliott-Smith (2004).
Previous Federal Actions
The piping plover was listed 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 (which include
the State of North Carolina) are listed as threatened under the Act.
On July 10, 2001, we designated 137 areas along the coasts of North
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi,
Louisiana, and Texas as critical habitat for the wintering population
of the piping plover (66 FR 36038). This designation included
approximately 1,798.3 miles (mi) (2,891.7 kilometers (km)) of mapped
shoreline and approximately 165,211 ac (66,881 ha) of mapped areas
along the Gulf and Atlantic coasts and along margins of interior bays,
inlets, and lagoons.
In February 2003, two North Carolina counties (Dare and Hyde) and a
beach access group (Cape Hatteras Access Preservation Alliance) filed a
lawsuit challenging our designation of four units of critical habitat
on the Cape Hatteras National Seashore, North Carolina (Units NC-1, NC-
2, NC-4, and NC-5). In its November 1, 2004 opinion, the court vacated
and remanded the designation for these units to us for reconsideration
(Cape Hatteras Access Preservation Alliance v. U.S. Department of
Interior (344 F. Supp. 2d 108 (D.D.C. 2004)). The court indicated that
the descriptions of critical habitat for the four units did not
sufficiently exclude certain hard structures and other areas that did
not contain primary constituent elements (PCEs) and ordered us to
demonstrate that PCEs are found on areas that are designated. Also,
although the court did not invalidate the PCEs themselves, it ordered
us to clarify that the PCEs may require special management or
protection pursuant to the Act. It also found that the designation of
critical habitat must include compliance with NEPA. Furthermore, the
court found that our economic analysis of the critical habitat
designation was arbitrary and capricious in that it considered the
impact of off-road vehicles and other human use of beaches but did not
address information in the record about the possibility of closures of
the beaches to such use or how off-road vehicle use might be affected
by the designation. Finally, the court also found that we may have
omitted from the economic analysis the costs of consulting on National
Park Service actions, and ordered us to reconsider them. This proposed
rule will address only those four court-vacated and -remanded units
(Units NC-1, NC-2, NC-4, and NC-5), with the exception of corrections
to the List of Endangered and Threatened Wildlife found at 50 CFR
17.11(h) and 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).
For more information on previous Federal actions concerning the
piping plover, refer to the final listing rule published in the Federal
Register on December 11, 1985 (50 FR 50726), or the final rule
designating critical habitat for the wintering population of the piping
plover published in the Federal Register on July 10, 2001 (66 FR
36038).
Critical Habitat
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 (I) essential to the conservation
of the species and (II) 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
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management, such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
[[Page 33706]]
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) Accordingly, when the best available scientific data
do not demonstrate that the conservation needs of the species require
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but not known to be
occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, therefore, typically
included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service 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
determining which areas are critical habitat, a primary source of
information is generally the listing rule for the species. Additional
information sources 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. All information is used in accordance with the
provisions of section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b) of the Act, we use the best scientific
data available in determining areas that contain the physical and
biological features that are essential to the conservation of the
wintering population of the piping plover. We reviewed available
information that pertains to the habitat requirements of this species.
The material reviewed included 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. To determine
the most current distribution of piping plover in North Carolina, these
areas were further evaluated using wintering piping plover occurrence
data from the North Carolina Wildlife Resources Commission, the North
Carolina Natural Heritage Program, and three international piping
plover winter population censuses. We considered these data along with
other occurrence data (including presence/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
wintering piping plovers (see final rule at 66 FR 36038). To map areas
containing the 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,
regional Geographic Information Systems (GIS) coverages, digital aerial
photographs, and regional shoreline-defining electronic files.
We have included those areas containing essential features along
the coast for which occurrence data indicate a consistent use
(observations over two or more wintering seasons) by piping plovers
within this designation. We do not propose any areas outside the
geographical area presently occupied by the species.
Delineating specific locations for designation as critical habitat
for the piping plovers is difficult because the coastal areas they use
are constantly changing due to storm surges, flood events, and other
natural geophysical alterations of beaches and shoreline. Thus, to best
ensure that areas containing features considered essential to the
piping plover are included in this proposed designation, the textual
unit descriptions of the units in the regulation constitute the
definitive determination as to whether an area is within the critical
habitat boundary. Our textual legal descriptions describe the area
using reference points, including the areas from the landward
boundaries to the mean of the lower low water (MLLW) (which encompasses
intertidal areas with the features that are essential foraging areas
for piping plovers), and describe areas within the unit that are
utilized by the piping plover and contain the PCEs (e.g., upland areas
used for roosting and wind tidal flats used for foraging). Our textual
[[Page 33707]]
legal descriptions also exclude features and structures (e.g.,
buildings, roads) that are not or do not contain PCEs.
In order to capture the dynamic nature of the coastal habitat, and
the intertidal areas used by the piping plover, we have textually
described each unit as including the area from the MLLW height of each
tidal day, as observed over the National Tidal Datum Epoch, landward to
a point where PCEs no longer occur. The landward edge of the PCEs is
generally demarcated by stable, densely-vegetated dune habitat which
nonetheless may shift gradually over time.
Global Positioning System (GPS) data were gathered using a mobile
handheld mapping unit with settings to allow for post processing or
Wide Area Augmentation System (WAAS) enabled correction. A minimum of
five positions were captured for each point location. Data were
processed using mapping software and the points were output to a
shapefile format. The point shapefile was checked for attribute
accuracy and additional data fields were added to assign feature type.
GIS point data were used to create lines. The lines were overlaid on
National Oceanic and Atmospheric Administration digital ortho-
photographs and U.S. Geological Survey digital ortho-photographs. These
lines were refined to create the landward edge of the critical habitat
polygons. To complete the polygons, a boundary was drawn in the ocean
or sound to demarcate the MLLW. The line was drawn using 20-foot Light
Detection and Ranging (LIDAR) and contours to estimate the location of
MLLW.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we consider those physical and biological features (PCEs) that
are essential to the conservation of the species, and within areas
occupied by the species at the time of listing, that may require
special management considerations and protection. These include, but
are not limited to, space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The specific primary constituent elements required for the
wintering population of the piping plover are derived from the
biological needs of the species, as described in the Background section
of the final rule designating critical habitat for the wintering
population of the piping plover published in the Federal Register on
July 10, 2001 (66 FR 36038).
Primary Constituent Elements for the Wintering Population of the Piping
Plover
Pursuant to our regulations, we are required to identify the known
physical and biological features (i.e., primary constituent elements
(PCEs)) essential to the conservation of the wintering population of
the piping plover. All areas proposed as critical habitat for the
wintering population of the piping plover are occupied, within the
species' historic geographical range, and contain sufficient PCEs to
support at least one life history function.
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, based on the best available scientific information, we
are not changing PCEs previously identified. They constitute the
features that are essential for the conservation of wintering piping
plovers. The PCEs are found in geologically dynamic coastal areas that
support intertidal beaches and flats (between annual low tide and
annual high tide) and associated dune systems and flats above annual
high tide.
Essential components (primary constituent elements) of wintering
piping plover habitat include sand and/or mud flats with no or very
sparse emergent vegetation. In some cases, these flats may be covered
or partially covered by a mat of blue-green algae. Adjacent unvegetated
or sparsely vegetated sand, mud, or algal flats above high tide are
also essential, especially for roosting piping plovers. Such sites may
have debris, detritus (decaying organic matter), or micro-topographic
relief (less than 50 cm above substrate surface) offering refuge from
high winds and cold weather. Essential components of the beach/dune
ecosystem include surf-cast algae for feeding of prey, sparsely
vegetated backbeach (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) for roosting and
refuge during storms, spits (a small point of land, especially sand,
running into water) for feeding and roosting, salterns (bare sand flats
in the center of mangrove ecosystems that are found above mean high
water and are only irregularly flushed with sea water) and washover
areas for feeding and roosting. Washover areas are broad, unvegetated
zones with little or no topographic relief that are formed and
maintained by the action of hurricanes, storm surge, or other extreme
wave action. Several of these components (sparse vegetation, little or
no topographic relief) are mimicked in artificial habitat types used
less commonly by piping plovers, but that are considered critical
habitat (e.g., dredge spoil sites).
This proposed designation is designed for the conservation of PCEs
necessary to support the life history functions of piping plover.
Because not all life history functions require all the PCEs, not all
proposed critical habitat will contain all the PCEs.
Each of the areas proposed in this rule have been determined to
contain sufficient PCEs to provide for one or more of the life history
functions of the wintering population of the piping plover. In some
cases, the PCEs exist as a result of ongoing Federal actions. As a
result, ongoing Federal actions at the time of designation will be
included in the baseline in any consultation conducted subsequent to
this designation.
Criteria Used To Identify Critical Habitat
We are proposing to designate critical habitat on certain lands in
North Carolina that we have determined contain habitat with features
essential to the conservation of the wintering population of the piping
plover. As required by section 4(b)(1)(A) of the Act, we use 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.
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), generating new on-the-ground GPS base-mapping to
refine the existing descriptions, and mapping the descriptions 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. To the maximum extent possible, unit boundaries were drawn to
exclude manmade structures or their ancillary facilities. To ensure
that no manmade features are included in critical habitat,
[[Page 33708]]
these features are expressly excluded by text in the Regulations
Promulgation section of the rule. Critical habitat starts immediately
at the edge of such features. 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 ``Methods'' section above for additional discussion of mapping
techniques.
We excluded areas from consideration that did not contain one or
more of the proposed PCEs or where: (1) The area was highly degraded
and may not be restorable; (2) the area was small, highly fragmented,
or isolated and may provide little or no long-term conservation value;
and (3) other areas within the geographic region were determined to be
sufficient to meet the species needs for conservation. We included
areas containing one or more PCEs where occurrence data exists and
where the area: (1) Provided a patchwork of the features essential for
the conservation of the species; (2) offered dispersal capabilities or
were in proximity to other wintering piping plover occurrences that
would allow for survival and recolonization following major natural
disturbance events (e.g., nor'easters, hurricanes); (3) were of
sufficient size to maintain the physical and biological features that
support occurrences; and (4) were representative of the historic
geographic distribution of occupied areas that will help prevent
further range collapse of the species. Areas are proposed based on them
containing sufficient PCEs to support wintering piping plover life
processes.
Within the area (NC-1, NC-2, NC-4, NC-5) vacated and remanded to
the Service for reconsideration in Cape Hatteras Access Preservation
Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C.
2004), we found no unoccupied areas essential to the conservation of
the species and therefore propose no areas in North Carolina outside
the geographical area presently occupied by the species. We are
proposing to designate critical habitat on lands that we have
determined were occupied at the time of listing and contain sufficient
PCEs to support life history functions essential for the conservation
of the species.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing and containing the
primary constituent elements may require special management
considerations or protections. As we undertake the process of
designating critical habitat for a species, we first evaluate lands
defined by those physical and biological features essential to the
conservation of the species for inclusion in the designation under
section 3(5)(A) of the Act. Secondly, we evaluate lands defined by
those features to assess whether they may require special management
considerations or protection. Primary threats to the wintering
population of piping plover that may require special management or
protection are disturbance of foraging and roosting plovers (e.g., by
flushing birds or disrupting normal feeding or roosting times and
causing excessive alertness or abandonment of the area) by humans
(e.g., walking on the beach, flying kites, shooting fireworks),
vehicles (e.g., driving on the beach), and domestic animals (e.g., pets
being turned loose on the beach); predation (e.g., increased numbers of
predators that are attracted to the human presence); and disturbance to
and loss of habitat due to uncontrolled recreational access (e.g., off-
road vehicles, pedestrians, domestic animals) and beach stabilization
efforts (e.g., beach nourishment, sediment dredging and disposal, inlet
channelization, construction of jetties and groins and other hard
structures) that prevent natural coastal processes (i.e., the natural
transfer and erosion and accretion of sediments along the ocean
shoreline). To address the threats affecting the wintering population
of the piping plover within each of the proposed critical habitat
units, certain special management actions may be needed. For example,
the high level of off-road vehicle (ORV) and pedestrian use of the
areas, as discussed in the critical habitat unit descriptions below,
may require managing access to piping plover foraging habitat and
adjacent upland roosting habitat during migration and overwintering
periods. Managing access to these foraging and roosting areas may
assist in the protection of PCEs and piping plovers by reducing
disturbance to PCEs potentially caused by ORV use, pedestrians, and
pets. Managing access might also improve the available habitats for
conservation of piping plovers.
In addition, in evaluating areas proposed for the designation of
critical habitat, we have determined that the following areas which
contain the PCEs do not require special management or consideration and
therefore are not proposed for designation. Please see ``Application of
Section 3(5)(A) and Exclusions Under Section 4(b)(2) of the Act'' for
additional discussion concerning our determination on these lands.
(1) The following islands owned by the State of North Carolina
located within or in proximity to Oregon, Hatteras, and Ocracoke
inlets, in Dare and Hyde counties: DR-005-05 and DR-005-06 (Oregon
Inlet, Dare County) and DR-009-03/04 (Hatteras Inlet, Dare and Hyde
counties). These islands are specifically managed for waterbirds by the
North Carolina Wildlife Resources Commission. The Commission has
developed a conservation strategy that identifies the piping plover as
a priority species needing research, survey, and monitoring efforts to
assist in restoration and conservation efforts.
(2) 237 ac (96 ha) of Pea Island National Wildlife Refuge (Dare
County). The refuge has a statutory mandate to manage the refuge for
the conservation of listed species, and a draft Comprehensive
Conservation Plan (USFWS 2006) provides a detailed implementation plan
which includes preserving, protecting, creating, restoring and managing
foraging and roosting habitats for the piping plover.
Proposed Amended Critical Habitat Designation
We are proposing four units of critical habitat in North Carolina
for the wintering population of the piping plover. The critical habitat
units described below constitute our best assessment, at this time, of
the areas determined to be occupied at the time of listing, that
contain one or more of the primary constituent elements and that may
require special management or protection. The four areas proposed as
critical habitat in this amendment are: Unit NC-1 Oregon Inlet, Unit
NC-2 Cape Hatteras Point, Unit NC-4 Hatteras Inlet, and Unit NC-5
Ocracoke Island, as described below. These units cover the same general
areas as those vacated by Cape Hatteras Access Preservation Alliance v.
U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), although
they have been refined to exclude areas that do not contain the PCEs or
require special management or protection and to reflect mapping
techniques conducted in compliance with the court order. For ease of
future management, these units are retaining the same naming as used in
the July 10, 2001, critical habitat designation (66 FR 36038). In
addition, this rule does not propose to alter or in any way amend the
remaining 133 units of designated critical habitat that were not
vacated by Cape Hatteras Access Preservation
[[Page 33709]]
Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C.
2004).
The approximate area encompassed within each proposed critical
habitat unit is shown in Table 1.
Table 1.--Critical Habitat Units Proposed for the Wintering Population
of the Piping Plover in North Carolina.
[Area estimates reflect all land within critical habitat unit
boundaries.]
------------------------------------------------------------------------
Critical habitat unit Land ownership Acres/Hectares
------------------------------------------------------------------------
Unit NC-1 Oregon Inlet........ Federal.............. 284.0 (114.9)
Unit NC-2 Cape Hatteras Point. Federal.............. 645.8 (261.4)
Unit NC-4 Hatteras Inlet...... Federal.............. 395.6 (160.1)
Unit NC-5 Ocracoke Island..... Federal.............. 501.8 (203.0)
------------------
Total..................... ..................... 1827.2 (739.4)
------------------------------------------------------------------------
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. These units contain the features essential to
the conservation of the species. Areas within the units contain a
contiguous mix of intertidal beaches and sand and/or mud flats (between
annual low tide and annual high tide) with no or very sparse emergent
vegetation, and adjacent areas of unvegetated or sparsely vegetated
dune systems and sand and/or mud flats above annual high tide. While no
one portion of the proposed units contains every PCE, each unit
contains sufficient PCEs to support life history functions essential
for the conservation of the species.
Unit NC-1: Oregon Inlet
Unit NC-1 is approximately 1.7 mi (2.8 km) long, and consists of
284 ac (114.9 ha) of sandy beach and inlet spit habitat on Bodie Island
in Dare County, North Carolina. This is the northernmost critical
habitat unit proposed within the wintering range of the piping plover
and is entirely within the Cape Hatteras National Seashore. Oregon
Inlet is the northernmost inlet in coastal North Carolina,
approximately 12 mi (19.3 km) southeast of the Town of Manteo, the
county seat of Dare County. The proposed unit at Oregon Inlet is
bounded by the Atlantic Ocean on the east and Pamlico Sound on the west
and includes lands from the MLLW on the Atlantic Ocean shoreline to the
line of stable, densely vegetated dune habitat (which is not used by
piping plovers and where primary constituent elements do not occur) and
from the MLLW on the Pamlico Sound side to the line of stable, densely
vegetated habitat, or (where a line of stable, densely vegetated dune
habitat does not exist) lands from MLLW on the Atlantic Ocean shoreline
to the MLLW on the Pamlico Sound side. It begins at the edge of Ramp 4
near the Oregon Inlet Fishing Center on Bodie Island and extends
approximately 1.7 mi (2.8 km) south to Oregon Inlet, and includes Green
Island and any emergent sandbars south and west of Oregon Inlet. This
unit contains the features essential to the conservation of the species
(i.e., PCEs), as discussed above.
As we discuss in ``Application of Section 3(5)(A) and Exclusions
Under Section 4(b)(2) of the Act'' below, this unit does not include
Pea Island National Wildlife Refuge or lands owned by the State of
North Carolina such as islands DR-005-05 and DR-005-06. In addition,
this unit does not include the Oregon Inlet Fishing Center, NC Highway
12, and the Bonner Bridge or its associated structures, or any of their
ancillary facilities (e.g., parking lots, outbuildings). All of these
features occur outside the boundary of the unit except for a small
number of supports for Bonner Bridge, which are within the boundary but
are excluded from critical habitat by text. Critical habitat begins
immediately at the base of these supports.
Consistent use by wintering piping plovers has been reported at
Oregon Inlet dating from the mid-1960s. As many as 100 piping plovers
were reported from a single day survey during the fall migration (NCWRC
unpublished data). Christmas bird counts regularly recorded 20 to 30
plovers using the area. Recent surveys have also recorded consistent
and repeated use of the area by banded piping plovers from the
endangered Great Lakes breeding population (J. Stucker, University of
Minnesota unpublished data). However, the overall number of piping
plovers reported using the area has declined since the species was
listed in 1986 (NCWRC unpublished data), which corresponds to increases
in the number of human users (NPS 2005) and off-road vehicles (Davis
and Truett 2000).
Oregon Inlet is one of the first beach access points for ORVs
within Cape Hatteras National Seashore when traveling from the
developed coastal communities of Nags Head, Kill Devil Hills, Kitty
Hawk, and Manteo. As such, the inlet spit is a popular area for ORV
users to congregate. A recent visitor use study of the park reported
that Oregon Inlet is the second most popular ORV use area in the park
(Vogelsong 2003). The majority of the Cape Hatteras National Seashore
users in this area are ORV owners and recreational fishermen. As a
result, sandy beach and mud and sand flat habitat being proposed as
critical habitat in this unit may require special management
considerations or protection, as discussed in ``Special Management
Considerations or Protections'' above.
Unit NC-2: Cape Hatteras Point
Unit NC-2 consists of 645.8 ac (261.4 ha) of sandy beach and sand
and mud flat habitat in Dare County, North Carolina. Cape Hatteras
Point (also known as Cape Point or Hatteras Cove) is located south of
the Cape Hatteras Lighthouse. The unit extends south approximately 2.8
mi (4.5 km) from the ocean groin near the old location of the Cape
Hatteras Lighthouse to the point of Cape Hatteras, and then extends
west 4.7 mi (7.6 km) along Hatteras Cove shoreline (South Beach) to the
edge of Ramp 49 near the Frisco Campground. This unit includes lands
from the MLLW on the Atlantic Ocean shoreline to the line of stable,
densely vegetated dune habitat (which is not used by piping plovers and
where PCEs do not occur). This unit contains the features essential to
the conservation of the species (i.e., PCEs), as discussed above. This
unit does not include the ocean groin.
[[Page 33710]]
Consistent use by wintering piping plover has been reported at Cape
Hatteras Point since the early 1980s, but the specific area of use was
not consistently recorded in earlier reports. Often piping plovers
found at Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet
were reported as a collective group. However, more recent surveys
report plover use at Cape Hatteras Point independently from Hatteras
Inlet. These single day surveys have recorded as many as 13 piping
plovers a day during migration (NCWRC unpublished data). Christmas bird
counts regularly recorded 2 to 11 plovers using the area.
Cape Hatteras Point is located near the Town of Buxton, the largest
community on Hatteras Island. For that reason, Cape Hatteras Point is a
popular area for ORV and recreational fishing. A recent visitor use
study of the park found that Cape Hatteras Point had the most ORV use
within the park (Vogelsong 2003). As a result, sandy beach and mud and
sand flat habitat being proposed as critical habitat in this unit may
require special management considerations or protection, as discussed
in ``Special Management Considerations or Protections'' above.
Unit NC-4: Hatteras Inlet
Unit NC-4 is approximately 4.7 mi (7.6 km) long, and consists of
395.6 ac (160.1 ha) of sandy beach and inlet spit habitat on the
western end of Hatteras Island and the eastern end of Ocracoke Island
in Dare and Hyde counties, North Carolina. The unit begins at the first
beach access point at the edge of Ramp 55 near the Graveyard of the
Atlantic Museum on the western end of Hatteras Island and continues
southwest to the beach access at the edge of the ocean-side parking lot
near Ramp 59 on the northeastern end of Ocracoke Island. This unit
includes lands from the MLLW on the Atlantic Ocean shoreline to the
line of stable, densely vegetated dune habitat (which is not used by
the piping plover and where PCEs do not occur) and from the MLLW on the
Pamlico Sound side to the line of stable, densely vegetated habitat, or
(where a line of stable, densely vegetated dune habitat does not exist)
lands from MLLW on the Atlantic Ocean shoreline to the MLLW on the
Pamlico Sound side. The proposed unit at Hatteras Inlet includes all
emergent sandbars within Hatteras Inlet. This unit contains the
features essential to the conservation of the species (i.e., PCEs), as
discussed above.
As we discuss in ``Application of Section 3(5)(A) and Exclusions
Under Section 4(b)(2) of the Act'' below, this unit does not include
lands owned by the State of North Carolina such as Island DR-009-03/04.
In addition, the unit does not include the Graveyard of the Atlantic
Museum, the ferry terminal, the groin on Ocracoke Island, NC Highway
12, or their ancillary facilities (e.g., parking lots, out buildings).
All of these features occur outside the boundary of the proposed unit.
Consistent use by wintering piping plover has been reported at
Hatteras Inlet since the early 1980s, but the specific area of use was
not consistently recorded in earlier reports. Often piping plovers
found at Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet
were reported as a collective group. However, more recent surveys
report plover use at Hatteras Inlet independently from Cape Hatteras
Point. These single day surveys have recorded as many as 40 piping
plovers a day during migration (NCWRC unpublished data). Christmas bird
counts regularly recorded 2 to 11 plovers using the area. Recent
surveys have also recorded consistent and repeated use of the area by
banded piping plovers from the endangered Great Lakes breeding
population (J. Stucker, University of Minnesota unpublished data).
However, the overall numbers of piping plovers reported using the area
has declined in the last 10 years (NCWRC unpublished data),
corresponding with increases in the number of human users (NPS 2005)
and ORVs (Davis and Truett 2000).
Hatteras Inlet is located near the Village of Hatteras, Dare
County, and is the southernmost point of Cape Hatteras National
Seashore that can be reached without having to take a ferry. As such,
the inlet is a popular off-road vehicle and recreational fishing area.
In fact, a recent visitor use study of the park found Hatteras Inlet
the fourth most used area by off-road vehicles in the park (Vogelsong
2003). As a result, sandy beach and mud and sand flat habitat being
proposed as critical habitat in this unit may require special
management considerations or protection, as discussed in ``Special
Management Considerations or Protections'' above.
Unit NC-5: Ocracoke Island
Unit NC-5 consists of 501.8 ac (203.0 ha) of sandy beach and mud
and sand flat habitat in Hyde County, North Carolina. The unit includes
the western portion of Ocracoke Island beginning at the beach access
point at the edge of Ramp 72 (South Point Road), extending west
approximately 2.1 mi (3.4 km) to Ocracoke Inlet, and then back east on
the Pamlico Sound side to a point where stable, densely vegetated dune
habitat meets the water. This unit includes lands from the MLLW on the
Atlantic Ocean shoreline to the line of stable, densely vegetated dune
habitat (which is not used by the piping plover and where primary
constituent elements do not occur) and from the MLLW on the Pamlico
Sound side to the line of stable, densely vegetated habitat, or (where
a line of stable, densely vegetated dune habitat does not exist) lands
from MLLW on the Atlantic Ocean shoreline to the MLLW on the Pamlico
Sound side. The unit includes all emergent sandbars within Ocracoke
Inlet. This unit contains the features essential to the conservation of
the species (i.e., PCEs), as discussed above. The unit is adjacent to
but does not include NC Highway 12, any portion of the maintained South
Point Road at Ramp 72, or any of their ancillary facilities.
Ocracoke Island had inconsistent recorded use by wintering piping
plovers in the early 1980s, and Christmas bird counts recorded only 1
to 6 plovers using the area throughout the early 1990s. However, since
the late 1990s when regular and consistent surveys of the area were
conducted, as many as 72 piping plovers have been recorded during
migration, and 4 to 18 plovers have been regularly recorded during the
overwinter period (NCWRC unpublished data). Recent surveys have also
recorded consistent and repeated use of the area by banded piping
plovers from the endangered Great Lakes breeding population (J.
Stucker, University of Minnesota unpublished data).
Ocracoke Inlet is located near the Village of Ocracoke, and is the
southernmost point of the Cape Hatteras National Seashore. Ocracoke
Island is only accessible by ferry. As such, the island is a popular
destination for vacationers and locals interested in seclusion. The
inlet is also a popular recreational fishing and ORV area. A recent
visitor use study of the park reported Ocracoke Inlet was the third
most popular ORV use area in the park (Vogelsong 2003). As a result,
the primary threat to the wintering piping plover and its habitat
within this unit is disturbance to and degradation of foraging and
roosting areas by ORVs and by people and their pets. Therefore, sandy
beach and mud and sand flat habitat being proposed as critical habitat
in this unit may require special management considerations or
protection, as discussed in ``Special Management Considerations or
Protections'' above.
[[Page 33711]]
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition (see Gifford Pinchot
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and
the statutory provisions of the Act, destruction or adverse
modification is determined on the basis of whether, with implementation
of the proposed Federal action, the affected critical habitat would
remain functional (or retain the current ability for the PCEs to be
functionally established) to serve the intended conservation role for
the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. This is a procedural requirement only.
However, once a proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated that may be affected and the Federal
agency has retained discretionary involvement or control over the
action or such discretionary involvement or control is authorized by
law. Consequently, some Federal agencies may request reinitiation of
consultation with us on actions for which formal consultation has been
completed, if those actions may affect subsequently listed species or
designated critical habitat or adversely modify or destroy proposed
critical habitat.
Federal activities that may affect the wintering population of the
piping plover or its designated critical habitat will require section 7
consultation under the Act. Activities on State, tribal, local or
private lands requiring a Federal permit (such as a permit from the
Corps under section 404 of the Clean Water Act or a permit under
section 10(a)(1)(B) of the Act from the Service) or involving some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also continue to be subject to the
section 7 consultation process. Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local or
private lands that are not federally funded, authorized, or permitted,
do not require section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Wintering Population of the Piping
Plover and Its Critical Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for wintering population of the
piping plover
[[Page 33712]]
jeopardy analyses that relies heavily on the importance of core area
populations to the survival and recovery of the wintering population of
the piping plover. The section 7(a)(2) analysis is focused not only on
these populations but also on the habitat conditions necessary to
support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the wintering population of the piping plover in a qualitative
fashion without making distinctions between what is necessary for
survival and what is necessary for recovery. Generally, if a proposed
Federal action is incompatible with the viability of a core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population to the survival and recovery of the species
as a whole.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum is used to complete section 7(a)(2) analyses for
Federal actions affecting wintering population of the piping plover
critical habitat. The key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the primary constituent elements to be
functionally established) to serve the intended conservation role for
the species. Generally, the conservation role of wintering population
of the piping plover critical habitat units is to support viable core
area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat are
those that alter the PCEs to an extent that the conservation value of
critical habitat for the wintering population of the piping plover is
appreciably reduced. Activities that, when carried out, funded, or
authorized by a Federal agency, may affect critical habitat and
therefore result in consultation for the wintering population of the
piping plover include, but are not limited to:
(1) Actions that would significantly and detrimentally alter the
hydrology of tidal mud and sand flats or ephemeral ponds or pools.
(2) Actions that would significantly and detrimentally alter the
input of sediments and nutrients necessary for the maintenance of
geomorphic and biologic processes that ensure appropriately configured
and productive beach systems.
(3) Actions that would introduce significant amounts of emergent
vegetation.
(4) Actions that would significantly and detrimentally alter the
topography of a site (such alteration may affect the hydrology of an
area or may render an area unsuitable for roosting).
(5) Actions that would reduce the value of a site by significantly
disturbing plovers from activities such as foraging and roosting.
(6) Actions that would significantly and detrimentally alter water
quality, that may lead to decreased diversity or productivity of prey
organisms or may have direct detrimental effects on piping plovers.
(7) Actions that would impede natural processes that create and
maintain washover passes and sparsely vegetated intertidal feeding
habitats.
These activities could eliminate or reduce the habitat necessary
for foraging by eliminating or reducing the piping plovers' prey 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 increasing recreational
activities to such an extent that the amount of available undisturbed
foraging or rooting habitat is reduced, with direct or cumulative
adverse effects to individuals and completion of their life cycles.
We consider all of the units proposed as critical habitat to
contain features essential to the conservation of the wintering
population of the piping plover. All units are within the geographic
range of the species, all were occupied by the species at the time of
listing, and are likely to be used by the wintering population of the
piping plover. Federal agencies already consult with us on activities
in areas currently occupied by the wintering population of the piping
plover, or if the species may be affected by the action, to ensure that
their actions do not jeopardize the continued existence of the
wintering population of the piping plover.
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographical area occupied by the species on which are
found those physical and biological features (i) essential to the
conservation of the species, and (ii) which may require special
management considerations or protection. Therefore, areas within the
geographical area occupied by the species that do not contain the
features essential to the conservation of the species are not, by
definition, critical habitat. Similarly, areas within the geographical
area occupied by the species that require no special management or
protection also are not, by definition, critical habitat.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans as well as
management under Federal agencies jurisdictions can provide protection
and management to avoid the need for designation of critical habitat.
When we consider a plan to determine its adequacy in protecting
habitat, we consider whether the plan, as a whole will provide the same
level of protection that designation of critical habitat would provide.
The plan need not lead to exactly the same result as a designation in
every individual application, as long as the protection it provides is
equivalent, overall. In making this determination, we examine whether
the plan provides management, protection, or enhancement of the PCEs
that is at least equivalent to that provided by a critical habitat
designation, and whether there is a reasonable expectation that the
management, protection, or enhancement actions will continue into the
foreseeable future. Each review is particular to the species and the
plan, and some plans may be adequate for some species and inadequate
for others.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and
[[Page 33713]]
actions will be implemented (i.e., those responsible for implementing
the plan are capable of accomplishing the objectives, and have an
implementation schedule or adequate funding for implementing the
management plan); and (3) the plan provides assurances that the
conservation strategies and measures will be effective (i.e., it
identifies biological goals, has provisions for reporting progress, and
is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
In evaluating areas proposed for the designation of critical
habitat, we considered islands owned by the State of North Carolina
located within or in proximity to Oregon, Hatteras, and Ocracoke
inlets, in Dare and Hyde counties. We have determined that the features
essential to the conservation of the piping plover in following areas
--DR-005-05 and DR-005-06 in Oregon Inlet, Dare County and DR-009-03/04
in Hatteras Inlet, Dare and Hyde counties `` do not require special
management or protection and, therefore, do not meet the definition of
critical habitat. Thus, the areas containing these features (i.e., the
islands) are not included in this proposal. These islands are
specifically managed for waterbirds by the North Carolina Wildlife
Resources Commission as defined in a February 5, 1992, letter signed by
James S. Lofton, Secretary, North Carolina Department of
Administration. The North Carolina Wildlife Resources Commission also
has developed a comprehensive wildlife conservation strategy entitled
``A Wildlife Action Plan for North Carolina'' (NCWRC 2005). In this
document, species and habitat assessments and conservation strategies
are discussed for the protection of estuarine and beach and dune
communities and priority species associated with those habitats,
including federally listed species such as the piping plover. The
Wildlife Action Plan identifies the piping plover as a priority species
needing research, survey, and monitoring efforts to assist in
restoration and conservation efforts. Conservation actions identified
in the plan to be implemented by the North Carolina Wildlife Resources
Commission include estuarine and beach and dune community habitat
protection and restoration; coordination with agencies in the
enforcement of the Endangered Species Act and the Migratory Bird Treaty
Act; education and outreach efforts directed toward the public and
regulatory agencies to emphasize the ephemeral nature of sand and mud
flats so these habitats will not be destroyed; increasing public
awareness concerning potential impacts of recreational activities;
building and encouraging setback distances and buffer zones; and
continued coordination with waterbird working groups such as the Piping
Plover Recovery Team. Based on the islands' limited access for
recreational use, implementation of the Wildlife Action Plan, and the
specific management of the islands for waterbirds, we have determined
that (1) the physical and biological features essential to the
conservation of the piping plover are covered under these provisions
and conservation programs, (2) that sufficient assurances are in place
such that the conservation and protection measures are and will be
implemented, and (3) that sufficient assurances are in place that
conservation and protection measures are and will be effective and
provide a conservation benefit to the PCEs and the species.
Consequently, we believe that the features essential to the
conservation of the piping plover in the following areas--DR-005-05 and
DR-005-06 in Oregon Inlet, Dare County and DR-009-03/04 in Hatteras
Inlet, Dare and Hyde counties--do not require special management or
protection and, therefore, do not meet the definition of critical
habitat. Thus, the areas containing these features (i.e., the islands)
are not included in this proposal. These islands represent the only
areas under consideration in this proposal that are owned by the State
of North Carolina and are therefore the only areas subject to the
Wildlife Action Plan.
In addition, we considered Pea Island National Wildlife Refuge
(Dare County) as an area proposed for the designation of critical
habitat. While portions of the refuge, totaling approximately 237 ac
(96 ha), contain the habitat features that are essential to the
conservation of the species, we have determined that the refuge does
not require special management or protection and, therefore, is not
included in this proposal. The refuge has a statutory mandate to manage
the refuge for the conservation of listed species, and a draft
Comprehensive Conservation Plan (CCP;USFWS 2006) provides a detailed
implementation plan which includes preserving, protecting, creating,
restoring, and managing foraging and roosting habitats for the piping
plover. The draft CCP was made available to the public on February 2,
2006 for a 30 day comment period, which ended on March 6, 2006. The
final CCP will likely be completed by the end of 2006.
The draft CCP more specifically describes the refuge's objectives
to meet its goals. Specific to the piping plover, the objective is to
``protect and monitor use of nesting, foraging, and wintering habitat
by piping plovers continuously.'' Strategies to achieve this goal
include monitoring piping plovers, signing and closing active nesting
areas, and protecting piping plovers from predators (e.g., raccoons,
feral cats), as needed. We have determined that (1) the physical and
biological features essential to the conservation of the piping plover
are covered under the draft CCP for the refuge, (2) that sufficient
assurances are in place such that the CCP will be finalized and that
the conservation and protection measures are and will be implemented,
and (3) that sufficient assurances are in CCP that conservation and
protection measures are and will be effective and provide a
conservation benefit to the primary constituent elements and the
species. As a result of Pea Island's refuge-wide effort and long-term
commitment to provide piping plover habitat, we believe the physical
and biological features for the piping plover in this area do not
require special management or protection and, therefore, do not meet
the definition of critical habitat. Thus, the areas containing these
features (i.e., Pea Island National Wildlife Refuge) are not included
in this proposal.
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact, of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if [s]he determines that the benefits of
such exclusion outweigh the benefits of specifying such area as part of
the critical habitat, unless [s]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 Secretary is afforded broad discretion
and the Congressional record is clear that in making a determination
under the section the Secretary has discretion as to which factors and
how much weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, determine whether the benefits
of exclusion outweigh the benefits of inclusion. If an exclusion is
contemplated, then we must determine whether excluding the area would
result
[[Page 33714]]
in the extinction of the species. In the following sections, we address
a number of general issues that are relevant to the exclusions we
considered. In addition, the Service is conducting an economic analysis
of the impacts of the proposed critical habitat designation and related
factors, which will be available for public review and comment.
Pursuant to the November 1, 2004 opinion in Cape Hatteras Access
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d
108 (D.D.C. 2004)), this analysis will focus on the impacts to ORV use
and costs of consulting on National Park Service activities. Based on
public comment on that document, the proposed designation itself, and
the information in the final economic analysis, additional areas beyond
those identified in this assessment may be excluded from critical
habitat by the Secretary under the provisions of section 4(b)(2) of the
Act. This is provided for in the Act, and in our implementing
regulations at 50 CFR 242.19.
In evaluating areas proposed for the designation of critical
habitat, we considered that Cape Hatteras National Seashore has
developed and submitted for public comment a proposed Interim Protected
Species Management Strategy/Environmental Assessment (Interim
Strategy). In addition, the Seashore has determined in a Biological
Assessment that implementation of the proposed Interim Strategy is
likely to adversely affect the piping plover. Therefore, the Seashore
has entered into formal consultation with the Service under section 7
of the Act. The consultation is currently ongoing. The Interim Strategy
is proposed to address recreational access and the associated
management of federally-listed species on the Seashore until an Off-
road Vehicle Management Plan (ORV Plan) is completed to address
vehicular access. The ORV Plan is proposed for development through a
negotiated rulemaking process that is tentatively scheduled to take
three years to complete. The negotiated rulemaking process was recently
initiated, but information on its ultimate effects on the piping plover
or the species' habitat is unknown at this time. The Service will
coordinate with the Seashore in the development of the ORV Plan and the
potential impacts it may have on the piping plover and other federally-
listed species. Lands containing the physical and biological features
essential to the conservation of the piping plover on the Seashore and
affected by the Interim Strategy are proposed as critical habitat.
However, we specifically solicit comments on the inclusion or exclusion
of such areas.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for the wintering population of the piping plover is being prepared.
Pursuant to the November 1, 2004 opinion in Cape Hatteras Access
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d
108 (D.D.C. 2004)), this analysis will focus on the impacts to ORV use
and costs of consulting on National Park Service activities. We will
announce the availability of the draft economic analysis as soon as it
is completed, at which time we will seek public review and comment. At
that time, copies of the draft economic analysis will be available for
downloading from the Internet at http://nc-es.fws.gov, or by contacting
the Raleigh Fish and Wildlife Office directly (see ADDRESSES section).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send these peer reviewers
copies of this proposed rule immediately following publication in the
Federal Register. We will invite these peer reviewers to comment,
during the public comment period, on the specific assumptions and
conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings must be made in writing at
least 15 days prior to the close of the public comment period. We
intend to schedule public hearings once the draft economic analysis is
available such that we can take public comment on the proposed
designation and economic analysis simultaneously. We will schedule
public hearings on this proposal, if any are requested, and announce
the dates, times, and places of those hearings in the Federal Register
and local newspapers at least 15 days prior to the first hearing.
Editorial Changes
We are also proposing to consolidate the entry for piping plover in
the list of Endangered and Threatened Wildlife at 50 CFR 17.11(h).
Currently, the entry separates the threatened populations of this
species in two rows. In this proposal, we are combining them into one
row. This change would not affect the listing status of any populations
of piping plover.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? (5) What
else could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat. This
economic analysis also will be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement
[[Page 33715]]
Fairness Act, and Executive Order 12630.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are listed
above in the section on Section 7 Consultation. The availability of the
draft economic analysis will be announced in the Federal Register and
in local newspapers so that it is available for public review and
comments. The draft economic analysis can be obtained from the Internet
Web site at http://nc-es.fws.gov or by contacting the Raleigh Fish and
Wildlife Office directly (see ADDRESSES section).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared under section 4(b)(2) of the Act and
Executive Order 12866. This draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, the Service will publish a notice of
availability of the draft economic analysis of the proposed designation
and reopen the public comment period for the proposed designation for
an additional 60 days. The Service will include with the notice of
availability, as appropriate, an initial regulatory flexibility
analysis or a certification that the rule will not have a significant
economic impact on a substantial number of small entities accompanied
by the factual basis for that determination. The Service has concluded
that deferring the RFA finding until completion of the draft economic
analysis is necessary to meet the purposes and requirements of the RFA.
Deferring the RFA finding in this manner will ensure that the Service
makes a sufficiently informed determination based on adequate economic
information and provides the necessary opportunity for public comment.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for the wintering
population of the piping plover in areas of North Carolina is a
significant rule under Executive Order 12866 in that it may raise novel
legal and policy issues, however, it is not expected to significantly
affect energy supplies, distribution, or use. Therefore, this action is
not a significant energy action and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding,'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because only Federal lands are proposed for
designation. As such, Small Government Agency Plan is not required. We
will, however, further evaluate this issue as we conduct our economic
analysis, and we will revise this assessment if appropriate.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in North Carolina. The designation of critical habitat on
Federal lands currently occupied by the wintering population of the
piping plover imposes no additional restrictions to those currently in
place and, therefore, has
[[Page 33716]]
little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments
in that the areas that contain the features essential to the
conservation of the species are more clearly defined, and the primary
constituent elements of the habitat necessary to the conservation of
the species are specifically identified. While making this definition
and identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are proposing to designate critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the wintering population of the
piping plover.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It has been our position that, outside the Tenth Circuit, we do not
need to prepare environmental analyses as defined by the National
Environmental Policy Act (NEPA) in connection with designating critical
habitat under the Endangered Species Act of 1973, as amended. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). However, the court
in Cape Hatteras Access Preservation Alliance v. U.S. Department of
Interior (344 F. Supp. 2d 108 (D.D.C. 2004), in ordering us to revise
the critical habitat designation, ordered us to prepare an
environmental analysis. To comply with the court's order, we are
preparing an environmental assessment pursuant to NEPA and will notify
the public of its availability when it is finished.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands with features essential for the conservation
of the wintering population of the piping plover in the areas of North
Carolina that we are proposing to designate as critical habitat.
Therefore, this rule does not propose critical habitat for the
wintering population of the piping plover on tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Raleigh Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary author of this package is the Raleigh Fish and Wildlife
Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h) by revising the entry for the ``Plover,
piping'' under BIRDS in the List of Endangered and Threatened Wildlife
to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Plover, piping.................. Charadrius melodus. U.S.A. (Great Great Lakes, E 211 17.95(b) NA
Lakes, northern watershed in
Great Plains, States of IL, IN,
Atlantic and Gulf MI, MN, NY, OH,
Coasts, PR, VI), PA, and WI and
Canada, Mexico, Canada (Ont.).
Bahamas, West
Indies.
Plover, piping.................. Charadrius melodus. U.S.A. (Great Entire, except T 211 17.95(b) NA
Lakes, northern where listed as
Great Plains, endangered.
Atlantic and Gulf
Coasts, PR, VI),
Canada, Mexico,
Bahamas, West
Indies.
[[Page 33717]]
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95(b), amend the entry for ``Piping Plover
(Charadrius melodus) Wintering Habitat'' as follows:
a. In paragraph 1., revise the text as set forth below;
b. In paragraph 2., revise the text as set forth below;
c. Under 3., remove the words ``North Carolina (Maps were digitized
using 1993 DOQQs, except NC-3 (1993 DRG)'' and add in their place a new
header and parenthetical text as set forth below;
d. Remove the critical habitat description for Unit NC-1 and add in
its place a new critical habitat description for Unit NC-1 as set forth
below;
e. Remove the critical habitat description for Unit NC-2 and add in
its place a new critical habitat description for Unit NC-2 as set forth
below;
f. Remove the critical habitat description for Unit NC-4 and add in
its place a new critical habitat description for Unit NC-4 as set forth
below;
g. Remove the critical habitat description for Unit NC-5 and add in
its place a new critical habitat description for Unit NC-5 as set forth
below;
h. Remove the first map for ``North Carolina Unit: 1'' and add in
its place a new map ``North Carolina Unit: 1'' as set forth below; and
i. Remove the second map for ``North Carolina Units: 2, 3, 4, 5, &
6'' and add in its place a new map ``North Carolina Units: 2, 3, 4, 5,
& 6'' as set forth below.
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Piping Plover (Charadrius melodus) Wintering Habitat
* * * * *
1. The primary constituent elements essential for the
conservation of wintering piping plovers are those 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 beaches and flats (between annual low
tide and annual high tide) and associated dune systems and flats
above annual high tide. (2) Sand and/or mud flats with no or very
sparse emergent vegetation. These flats may be covered or partially
covered by a mat of blue-green algae. (3) Adjacent unvegetated or
sparsely vegetated sand, mud, or algal flats above high tide for
roosting piping plovers. Such sites may have debris, detritus
(decaying organic matter), or micro-topographic relief (less than 50
cm above substrate surface) offering refuge from high winds and cold
weather. (4) Surf-cast algae for feeding of prey. (5) Sparsely
vegetated backbeach (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)
for roosting and refuge during storms, spits (a small point of land,
especially sand, running into water) for feeding and roosting. (6)
Salterns (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) Washover areas for feeding and roosting.
Washover areas are broad, unvegetated zones with little or no
topographic relief that are formed and maintained by the action of
hurricanes, storm surge, or other extreme wave action. (8) Natural
conditions of sparse vegetation and little or no topographic relief
mimicked in artificial habitat types (e.g., dredge spoil sites).
2. Critical habitat does not include manmade structures (such as
bridges, ocean groins, buildings, aqueducts, airports, roads, and
other paved areas) or their ancillary facilities (such as lawns,
flower beds, or other maintained landscaped areas) and the land on
which they are located existing on the effective date of this rule.
3. * * *
North Carolina (Data layers defining map units 1, 2, 4, and 5
were created from GPS data collected in the field in May and June of
2005, and modified to fit the 1:100,000 scale North Carolina county
boundary with shoreline (cb100sl) data layer from the BasinPro 8
data set published by the North Carolina Center for Geographic
Information and Analysis, which was compiled in 1990. Other map
units were digitized using 1993 DOQQs, except NC-3 which utilized
1993 DRG.)
Unit NC-1: Oregon Inlet, 114.9 ha (284.0 ac) in Dare County, North
Carolina
This unit is within Cape Hatteras National Seashore and extends
from the southern portion of Bodie Island to Oregon Inlet. It begins
at the edge of Ramp 4 near the Oregon Inlet Fishing Center on Bodie
Island and extends south approximately 2.8 km (1.7 mi) to Oregon
Inlet. This unit includes lands from the mean lower low water (MLLW)
on the Atlantic Ocean shoreline to the line of stable, densely
vegetated dune habitat (which is not used by the piping plover and
where primary constituent elements do not occur) and from the MLLW
on the Pamlico Sound side to the line of stable, densely vegetated
habitat, or (where a line of stable, densely vegetated dune habitat
does not exist) lands from MLLW on the Atlantic Ocean shoreline to
the MLLW on the Pamlico Sound side. Any emergent sandbars south and
west of Oregon Inlet are included, except lands owned by the State
of North Carolina such as islands DR-005-05 and DR-005-06 (not shown
on map).
Unit NC-2: Cape Hatteras Point, 261.4 ha (645.8 ac) in Dare County,
North Carolina
This unit is within Cape Hatteras National Seashore and
encompasses the point of Cape Hatteras (Cape Point). The unit
extends south approximately 4.5 km (2.8 mi) from the ocean groin
near the old location of the Cape Hatteras Lighthouse to the point
of Cape Hatteras, and then extends west 7.6 km (4.7 mi) (straight-
line distances) along Hatteras Cove shoreline (South Beach) to the
edge of Ramp 49 near the Frisco Campground. The unit includes lands
from the MLLW on the Atlantic Ocean to the line of stable, densely
vegetated dune habitat (which is not used by the piping plover and
where primary constituent elements do not occur). This unit does not
include the ocean groin.
* * * * *
Unit NC-4: Hatteras Inlet, 106.1 ha (395.6 ac) in Dare and Hyde
Counties, North Carolina
This unit is within Cape Hatteras National Seashore and extends
from the western end of Hatteras Island to the eastern end of
Ocracoke Island. The unit extends approximately 4.5 km (2.8 mi)
southwest from the first beach access point at the edge of Ramp 55
at the end of NC Highway 12 near the Graveyard of the Atlantic
Museum on the western end of Hatteras Island to the edge of the
beach access point at the ocean-side parking lot (approximately 0.1
mile south of Ramp 59) on NC Highway 12, approximately 1.25 km (0.78
miles) southwest (straight-line distance) of the ferry terminal on
the northeastern end of Ocracoke Island. This unit includes lands
from the MLLW on the Atlantic Ocean shoreline to the line of stable,
densely vegetated dune habitat (which is not used by the piping
plover and where primary constituent elements do not occur) and from
the MLLW on the Pamlico Sound side to the line of stable, densely
vegetated habitat, or (where a line of stable, densely vegetated
dune habitat does not exist) lands from MLLW on the Atlantic Ocean
shoreline to the MLLW on the Pamlico Sound side. All emergent
sandbars within Hatteras Inlet between Hatteras Island and Ocracoke
Island are also included, except lands owned by the State of North
Carolina such as Island DR-009-03/04 (not shown on map).
Unit NC-5: Ocracoke Island, 203.0 ha (501.8 ac) in Hyde County, North
Carolina
This unit is within Cape Hatteras National Seashore and includes
the western portion of Ocracoke Island beginning at the beach access
point at the edge of Ramp 72 (South
[[Page 33718]]
Point Road), extending west approximately 3.4 km (2.1 mi) to
Ocracoke Inlet, and then back east on the Pamlico Sound side to a
point where stable, densely vegetated dune habitat meets the water.
This unit includes lands from the MLLW on the Atlantic Ocean
shoreline to the line of stable, densely vegetated dune habitat
(which is not used by the piping plover and where primary
constituent elements do not occur) and from the MLLW on the Pamlico
Sound side to the line of stable, densely vegetated habitat, or
(where a line of stable, densely vegetated dune habitat does not
exist) lands from MLLW on the Atlantic Ocean shoreline to the MLLW
on the Pamlico Sound side. All emergent sandbars within Ocracoke
Inlet are also included. This unit does not include any portion of
the maintained South Point Road, NC Highway 12, or any of their
ancillary facilities.
* * * * *
BILLING CODE 4310-55-P
[[Page 33719]]
[GRAPHIC] [TIFF OMITTED] TP12JN06.003
[[Page 33720]]
[GRAPHIC] [TIFF OMITTED] TP12JN06.004
[[Page 33721]]
* * * * *
Dated: May 31, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-5192 Filed 6-9-06; 8:45 am]
BILLING CODE 4310-55-C