[Federal Register Volume 65, Number 130 (Thursday, July 6, 2000)]
[Proposed Rules]
[Pages 41812-41835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16815]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG14


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Great Lakes Breeding 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, propose to designate 
37 units along the Great Lakes shoreline of Minnesota, Wisconsin, 
Michigan, Illinois, Indiana, Ohio, Pennsylvania, and New York as 
critical habitat under the Endangered Species Act of 1973, as amended, 
for the Great Lakes breeding population of the piping plover 
(Charadrius melodus). We propose to designate critical habitat on fewer 
than 305 km (189 mi) in 27 counties within these States. Within these 
areas, only the specific locations that have or could develop the 
physical and biological features required by piping plovers (primary 
constituent elements) would be considered critical habitat.
    The primary constituent elements for the piping plover are those 
habitat components that are essential for foraging, sheltering, 
reproduction, rearing of young, intra-specific communication, roosting, 
nesting, and dispersal.
    This proposed rule, if made final, would result in additional 
review requirements under section 7 of the Act. Federal agencies may 
not fund, authorize, or carry out an action that would destroy or 
adversely modify critical habitat. Section 4 of the Act requires us to 
consider economic and other impacts of specifying any particular area 
as critical habitat. We solicit data and comments from the public on 
all aspects of this proposal, including potential economic and other 
impacts of the designation.

DATES: Comments: We will consider comments received by September 5, 
2000.
    Public Hearings: We have scheduled seven public hearings for this 
proposal. See Hearings section for hearing dates and addresses.
    We will hold public informational open houses at the same locations 
prior to each public hearing. The informational open houses will start 
at 6 pm. The public hearings will start at 7 pm and end at 9 pm.

ADDRESSES: Send written comments and other materials concerning this 
proposal to: Piping Plover Comments, U.S. Fish and Wildlife Service, 
Bishop Henry Whipple Federal Building, 1 Federal Drive, Fort Snelling, 
MN 55111 or by e-mail to [email protected] or by facsimile to 
612-713-5292.
    The complete file for this proposed rule, including 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 above 
address and at the U.S. Fish and Wildlife Service, East Lansing Field 
Office, 2651 Coolidge Road, Suite 101, East Lansing, MI 48823.

FOR FURTHER INFORMATION CONTACT: Laura J. Ragan; (612) 713-5350.

SUPPLEMENTARY INFORMATION:

Background

    The piping plover (Charadrius melodus), named for its melodic 
mating call, is a small, pale-colored North American shorebird. It 
weighs 43-63 grams (1.5-2.5 ounces) and is 17-18 centimeters (cm) (6-7 
inches (in.)) long (Haig 1992). Its light, sand-colored plumage blends 
in well with its primary sandy beach habitat. Plumage and leg color 
help distinguish this bird from other plover species. During the 
breeding season, the legs are bright orange, and the short, stout bill 
is orange with a black tip. There are two single dark bands, one around 
the neck and one across the forehead between the eyes. The female's 
neck band is often incomplete and is usually thinner than the male's 
(Haig 1992). In winter, the bill turns black, the legs fade to pale 
orange, and the black plumage band on the head and neck is lost. Chicks 
have speckled gray, buff, and brown down, black beaks, pale orange 
legs, and a white collar around the neck. Juveniles resemble wintering 
adults and obtain their adult plumage the spring after they fledge 
(Service 1994).
    The breeding range of the piping plover extends throughout the 
northern Great Plains, the Great Lakes, and the Atlantic Coast in the 
United States and Canada. Based on this distribution, three breeding 
populations of piping plovers have been described: the Northern Great 
Plains population, the Great Lakes population, and the Atlantic Coast 
population.
    The northern Great Plains breeding range includes southern Alberta, 
northern Saskatchewan, and southern Manitoba; south to eastern Montana, 
the Dakotas, southeastern Colorado, Iowa, Minnesota, and Nebraska; and 
east to Lake of the Woods in north-central Minnesota. The majority of 
the United States pairs are in the Dakotas, Nebraska, and Montana 
(Service 1994). Occasionally, Great Plains birds nest in Oklahoma and 
Kansas. On the Atlantic coast, piping plovers breed from Newfoundland, 
southeastern Quebec, and New Brunswick to North Carolina, with 68 
percent of all the nesting pairs breeding in Massachusetts, New York, 
New Jersey, and Virginia (Service 1999).
    In the Great Lakes watershed, piping plovers formerly nested 
throughout much of the region in the north-central United States and 
south-central Canada, but are currently limited to northern Michigan 
and one site in northern Wisconsin. Piping plovers nest on shoreline 
and island sandy beaches with

[[Page 41813]]

sparse vegetation and the presence of small stones (greater than 1 cm 
(0.4 in.)) called cobble. Their nests are concealed by the cobble and 
are, therefore, very difficult to see. Piping plovers spend 
approximately 3-4 months a year on the breeding grounds. Nesting in the 
Great Lakes region begins in early to mid-May. Plovers lay 3-4 eggs in 
a small depression they scrape in the sand among the cobblestones, and 
both sexes incubate the eggs for about 28 days. Young plovers can walk 
almost as soon as they hatch, but remain vulnerable to predation and 
disturbance for another 21-30 days until they are able to fly.
    Nesting piping plovers are highly susceptible to disturbance by 
people and pets on the beach. Human disturbance disrupts adult birds' 
care of their nests and young and may inhibit incubation of eggs. 
Furthermore, adults may leave the nest to lure away an intruder, 
leaving the eggs or chicks vulnerable to predators and exposure to 
weather. Also, disturbance may lead to the abandonment of nests. As a 
result of this disturbance and other natural and human-caused factors 
such as high water levels, flooding, eroding beaches, and beach-front 
commercial and recreational development, reproduction of Great Lakes 
piping plovers has been severely affected, resulting in perilously low 
numbers of nesting plovers (Service 1994).
    Piping plovers are migratory birds. They leave the breeding grounds 
between late July and early September and head for their wintering 
grounds, where they spend more than 8 months of the year. Although the 
breeding ranges of the three piping plover populations are separate, 
their wintering ranges overlap and extend along the Atlantic and Gulf 
Coasts from southern North Carolina to Mexico and into the West Indies 
and Bahamas. Resightings of color-banded birds from the Great Lakes 
breeding population have occurred along the coastlines of North and 
South Carolina, Georgia, Florida, Louisiana, and Texas.
    Historically, the Great Lakes breeding population of the piping 
plover nested on beaches in Illinois, Indiana, Michigan, Minnesota, 
Ohio, Pennsylvania, New York, and Wisconsin, and in Ontario, Canada. 
Although piping plovers were never abundant, prior to European 
settlement, populations in the Great Lakes were estimated at 492-682 
breeding pairs (Russell 1983).
    In recent decades, piping plover populations have declined 
drastically, especially in the Great Lakes. In the early 1900s, 
uncontrolled hunting throughout their range drove them nearly to 
extinction. Protective legislation helped them to recover by 1925, and 
populations reached a 20th Century high in the 1930s (Service 1994). 
These numbers soon plummeted, though, as recreational and commercial 
use of beaches increased. Piping plover numbers continued to decline in 
the 1940s and 1950s as shoreline development expanded, resulting in the 
loss of their breeding habitat.
    In 1973, the piping plover was placed on the National Audubon 
Society's Blue List of threatened species. By that time, piping plovers 
had been extirpated from shoreline beaches in Illinois, Indiana, Ohio, 
New York, Pennsylvania, and Ontario, and only a few birds were 
continuing to nest in Wisconsin (Russell, 1983). By 1979, the Great 
Lakes breeding population had decreased to 38 pairs. At the time the 
species was listed under the Endangered Species Act in 1985, the Great 
Lakes breeding population numbered only 17 breeding pairs, and the 
breeding areas had been reduced from sites in eight States to northern 
Michigan.
    In recent years, the Great Lakes breeding population has gradually 
increased and expanded south and west within the Great Lakes watershed. 
In 1999, 32 pairs of piping plovers nested on the Great Lakes shoreline 
within the United States, but only one of these pairs was outside of 
northern Michigan (Stucker and Cuthbert, unpublished data). This 
population increase is being aided by intense State, tribal, Federal, 
and private conservation actions directed at the protection of the 
piping plover. Activities such as habitat surveys, beach restoration, 
public education, habitat protection and enhancement, and the 
protection of nests from predators and disturbance through the use of 
predator exclosure fencing have all contributed to the improving status 
of the Great Lakes piping plover. This proposal applies only to the 
breeding range of the Great Lakes population in the United States.

Previous Federal Actions

    On December 30, 1982, we published a notice of review in the 
Federal Register (47 FR 58454) that identified vertebrate animal taxa 
being considered for addition to the List of Threatened and Endangered 
Wildlife. The notice included the piping plover as a Category 2 
Candidate species, indicating that we believed the species might 
warrant listing as threatened or endangered, but that we had 
insufficient data to support a proposal to list at that time. 
Subsequent review of additional data indicated that the piping plover 
warranted listing, and in November, 1984, we published a proposal in 
the Federal Register (49 FR 44712) to list the piping plover as 
endangered in the Great Lakes watershed and as threatened along the 
Atlantic Coast, the Northern Great Plains, and elsewhere in their 
range. The proposed listing was based on the decline of the species and 
the existing threats, including habitat destruction, disturbance by 
humans and pets, high levels of predation, and contaminants. On 
December 11, 1985, we published the final rule (50 FR 50726), listing 
the piping plover as endangered in the Great Lakes watershed (Illinois, 
Indiana, Michigan, northeastern Minnesota, New York, Ohio, 
Pennsylvania, Wisconsin, and Ontario) and as threatened along the 
Atlantic coast (Quebec, Newfoundland, Maritime Provinces, and States 
from Maine to Florida), in the Northern Great Plains region (Iowa, 
northwestern Minnesota, Montana, Nebraska, North Dakota, South Dakota, 
Alberta, Manitoba, and Saskatchewan), and on migratory routes and on 
their wintering grounds. All piping plovers on migratory routes outside 
of the Great Lakes watershed or on their wintering grounds are 
considered threatened. The Service did not designate critical habitat 
for the species at that time.
    In 1986, we appointed two recovery teams to develop recovery plans 
for the Atlantic Coast and Great Lakes/Northern Great Plains breeding 
populations. The recovery plans that resulted from their efforts were 
published in 1988 (Service 1988a, Service 1988b). In 1994, we began to 
revise the plan for the Great Lakes/Northern Great Plains populations 
by developing and distributing for public comment a draft that included 
updated information on the species. More recently, we decided that the 
recovery of these two inland populations would benefit from separate 
recovery plans that would direct separate recovery programs. Separate 
recovery plans for the Great Lakes and Northern Great Plains 
populations are presently under development.
    The final listing rule for the piping plover indicated that 
designation of critical habitat was not determinable. Thus, designation 
was deferred. No further action was subsequently taken to designate 
critical habitat for piping plovers. On December 4, 1996, Defenders of 
Wildlife (Defenders) filed a suit (Defenders of Wildlife and Piping 
Plover v. Babbitt, Case No. 96CV02965) against the Department of the 
Interior and the Service over the lack of designation of critical 
habitat for the Great Lakes breeding population of the piping plover. 
Defenders filed a similar suit (Defenders of Wildlife and Piping

[[Page 41814]]

Plover v. Babbitt, Case No. 97CV000777) for the Northern Great Plains 
piping plover population in 1997. During November and December 1999 and 
January 2000, we began negotiating a schedule for piping plover 
critical habitat decisions with Defenders. On February 7, 2000, before 
the settlement negotiations were concluded, the United States District 
Court for the District of Columbia issued an order directing us to 
publish a proposed critical habitat designation for nesting and 
wintering areas of the Great Lakes breeding population of the piping 
plover by June 30, 2000, and for nesting and wintering areas of the 
Northern Great Plains piping plover by May 31, 2001. A subsequent 
order, after requesting the court to reconsider its original order 
relating to final critical habitat designation, directs us to finalize 
the critical habitat designations for the Great Lakes population by 
April 30, 2001, and for the Northern Great Plains population by March 
15, 2002. For biological and practical reasons, we chose to propose 
critical habitat for the Great Lakes breeding birds and for all 
wintering birds in two separate rules to be published concurrently.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographic 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 geographic area 
occupied by a species at the time it is listed, upon determination that 
such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or threatened species to the point at 
which listing under the Act is no longer necessary. Thus, critical 
habitat areas should provide sufficient habitat to support the species 
at the population level and geographic distribution that is necessary 
for recovery. Proposed critical habitat for the Great Lakes breeding 
population of the piping plover includes areas that currently support 
the species, and also areas that are not currently used by the species 
but that contain habitat essential for the recovery of the species.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when we determine that 
benefits of excluding those areas outweigh the benefits of including 
them, providing the exclusion would not result in the extinction of the 
species.
    Designation of critical habitat helps focus conservation activities 
for a listed species by identifying areas that contain the physical and 
biological features that are essential for the conservation of that 
species. Designation of critical habitat alerts the public, as well as 
land-managing agencies, to the importance of these areas.
    Section 7 of the Act requires Federal agencies to ensure, in 
consultation with us, that any actions they authorize, fund, or carry 
out do not adversely modify or destroy critical habitat. Section 7 also 
requires Federal agencies to confer with us on actions that are likely 
to result in the adverse modification or destruction of proposed 
critical habitat. Designation of critical habitat affects actions on 
private lands only when the actions are authorized, funded, or carried 
out by a Federal agency.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not establish a preserve area 
where human activities are prohibited, create a management plan, 
establish numerical population goals, or prescribe specific management 
practices (inside or outside of critical habitat). Specific management 
recommendations for areas designated as critical habitat are most 
appropriately addressed in the Recovery Plan, site-specific management 
plans, through section 7 consultation on Federal activities, and 
section 10 incidental take permits.
    All of the proposed critical habitat areas are considered essential 
to the conservation of the Great Lakes breeding population of the 
piping plover as described in the approved 1988 Recovery Plan for the 
Great Lakes and Northern Great Plains Piping Plover (Plan) and the 1994 
Recovery Plan for the Great Lakes Piping Plover. The proposed 
designation encompasses those areas considered necessary to achieve the 
recovery goals for this population, and includes Great Lakes shoreline 
and island beaches that currently support piping plovers, that 
historically supported and are still capable of supporting piping 
plovers, and areas that have the potential to support piping plovers in 
the future. Not all of the primary constituent elements may be present 
in all of the areas proposed for designation, but given the dynamic 
character of shoreline processes, areas currently lacking some of the 
constituent elements could develop them in the future. Over a period of 
a few years, these sites may be affected by changes in local water 
levels, weather, and other external forces, which may in turn change 
the suitability of such sites for piping plovers.
    We considered, and are proposing, a portion of the Bad River Indian 
Reservation because we believe some shoreline areas on Tribal lands may 
be essential to the conservation of Great Lakes piping plover. However, 
the short amount of time provided under the schedule dictated by the 
court to propose critical habitat prevented us from doing more than 
initiating coordination with the Bad River Band of the Lake Superior 
Tribe of the Chippewa Indians. Subsequent to this proposal, we will 
continue coordinating with the Bad River Band before making a final 
determination as to whether any Tribal lands should be included as 
critical habitat for the Great Lakes piping plover. We will consider 
whether these Tribal lands require special management considerations or 
protection; we may also exclude some or all of these lands from 
critical habitat upon a determination that the benefits of excluding 
them outweigh the benefits of designating these areas as critical 
habitat, as provided under section 4(b)(2) of the Act. This 
consultation will take place under the auspices of the Secretarial 
Order 3206 and the Presidential Memorandum of April 29, 1994, which 
require us to coordinate with federally recognized Tribes on a 
Government-to-Government basis.

Methods

    In determining areas that are essential to conserve the Great Lakes 
breeding population of the piping plover, we used the best scientific 
and commercial data available. We solicited information from 
knowledgeable biologists and reviewed the available information 
pertaining to habitat requirements of the species. In an effort to map 
areas essential to the conservation of the species, we used data of 
known piping plover breeding locations, records of historical nesting 
sites, International Census data, and those areas that were identified 
in the 1988 recovery plan and 1999 draft recovery plan as essential for 
the recovery of the species. We have chosen the 37 critical habitat 
units in order to protect adequate habitat to meet the recovery 
criteria, contained in the Plan and draft Plan, of 100 breeding pairs 
in Michigan and 50 breeding pairs

[[Page 41815]]

in the other Great Lakes States combined.
    We did not map critical habitat in sufficient detail to exclude all 
currently developed sites consisting of buildings, marinas, paved 
areas, boat ramps, and similar structures. These areas do not contain 
primary constituent elements essential for piping plover conservation, 
and are not critical habitat even though they are within the mapped 
boundaries. Designating specific locations for critical habitat for the 
piping plovers is difficult because the beach areas they use are 
constantly changing due to storm surges, flood events, and other 
natural geo-physical alterations of beaches and shorelines. Areas 
lakeward of the beach and covered by water (e.g., lakes) will not 
contain one or more of the primary constituent elements, and are not 
critical habitat. Because of the dynamics of beach areas, however, 
areas now covered by water may in the future become land, and will then 
under this designation become critical habitat if they fall within the 
mapped boundaries.
    The critical habitat units are larger complexes of habitat that 
contain areas that currently have the primary constituent elements 
necessary for piping plovers and other areas that may develop these 
primary constituent elements. During section 7 consultation, we will 
determine whether an action may affect the primary constituent elements 
or the ability of the areas to develop them.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat determinations 
on the best scientific and commercial data available and to consider 
those physical and biological features that are essential to the 
conservation of the species and that may require special management 
considerations and protection. Such requirements include but are not 
limited to (1) space for individual and population growth, and for 
normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for breeding, reproduction, and rearing of offspring; and (5) 
habitats that are protected from disturbance or are representative of 
the historical geographical and ecological distributions of a species.
    The areas we are proposing for designation as critical habitat 
provide some or all of those habitat components essential for the 
biological needs of the piping plover or have the capacity to develop 
these habitat components. These components are also called primary 
constituent elements.
    The primary constituent elements for the Great Lakes breeding 
population of the piping plover are those habitat components that are 
essential for the biological needs of foraging, sheltering, 
reproduction, rearing of young, intra-specific communication, roosting, 
nesting, and dispersal. Proposed critical habitat for the Great Lakes 
breeding population of piping plovers includes sites that: (1) Are 
currently or recently (at least once during the past 5 years) used for 
breeding, (2) were documented to have been occupied historically and 
still have most or all of the primary constituent elements, or (3) are 
not documented to have been occupied historically but are deemed 
potential breeding habitat because their characteristics are suitable 
for breeding by piping plovers.
    The primary constituent elements required to sustain the Great 
Lakes breeding population of the piping plover are found on Great Lakes 
islands and mainland shorelines that support, or have the potential to 
support, open, sparsely vegetated sandy habitats--sand spits or sand 
beaches associated with wide, unforested systems of dunes and inter-
dune wetlands. In order for habitat to be physically and biologically 
suitable for piping plovers, it must have a total shoreline length of 
at least 0.2 km (0.12 mi) of gently sloping, sparsely vegetated (less 
than 50 percent herbaceous and low woody cover) sand beach with a total 
beach area of at least 2 hectares (ha) (5 acres (ac)) and a low level 
of disturbance from human activities and from domestic animals. These 
appropriately sized sites must also have areas of at least 50-100 
meters (m) (165-330 feet (ft)) in length where (1) the beach width is 
more than 7 m (23 ft), (2) there is protective cover for nests and 
chicks, and (3) the distance to the treeline (from the normal high 
water line to where the forest begins) is more than 50 m (165 ft). 
Beach width is defined as the distance from the normal high water line 
to the foredune (a low barrier dune ridge immediately inland from the 
beach) edge, or to the sand/vegetation boundary in areas where the 
foredune is absent. The beach width may be narrower than 7 m (23 ft) if 
appropriate sand and cobble areas at least 7 m (23 ft) exist between 
the dune and the treeline. Protective cover for nests and chicks 
consists of small patches of herbaceous vegetation, cobble (stones 
larger than 1 cm (0.39 inches (in)) diameter), gravel (stones smaller 
than 1 cm (0.39 in) diameter), or debris such as driftwood, wrack, root 
masses, or dead shrubs.
    Dominant plants within these areas include marram grass (Ammophila 
brevigulata), beach wormwood (Artemesia campestris), silverweed 
(Potentilla anserina), Lake Huron tansy (Tanacetum huronense), 
pitcher's thistle (Cirsium pitcheri), beach pea (Lathyrus maritimus 
var. glaber), sea rocket (Cakile edentula), sedges (Carex spp.), 
goldenrods (Solidago spp.), sand cherry (Prunus pumila), bearberry 
(Actostaphylus uva-ursi), creeping juniper (Juniper horizontalis), 
cottonwood (Populus deltoides), and willow (Salix spp.).

Proposed Critical Habitat Designation

    At this time, the proposed critical habitat areas contained within 
the critical habitat units discussed below constitute our best 
evaluation of areas needed for the conservation of the Great Lakes 
breeding population of the piping plover. Very little suitable piping 
plover habitat remains in the Great Lakes region. Therefore, areas that 
were historically occupied by piping plover and that still contain 
suitable habitat or potentially could contain suitable habitat, as well 
as areas that are not known to have been historically occupied but have 
potential piping plover habitat, are necessary for the recovery of the 
species. Proposed critical habitat may be revised should new 
information become available prior to the final rule. Critical habitat 
subsequently may be revised if new information becomes available after 
the final rule. Any subsequent areas of critical habitat will be 
designated only after a formal proposal and opportunity for public 
comment.
    The approximate length of proposed critical habitat shoreline by 
land ownership is shown in Table 1. Lands proposed as critical habitat 
are under private, Federal, State, municipal, and tribal ownership. 
Estimates reflect the total area within critical habitat unit 
boundaries, without regard to the presence of primary constituent 
elements. The area actually proposed for designation by this proposal 
is therefore less than that indicated in Table 1.

[[Page 41816]]



 Table 1.--Kilometers of Great Lakes Shoreline Proposed as Critical Habitat Units for the Piping Plover in Each Great Lakes State Summarized by Federal,
                                                      State, Municipal, Private and Other Ownership
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                                                                        Ownership
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       km shoreline (percentage within each State)
---------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Federal          State         Municipal        Private          Other       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Michigan........................................................     36.6 (16.9)    103.6 (47.9)       6.1 (2.8)       64 (29.6)     6 TNC (2.8)   216.3
Minnesota.......................................................               0      1.4 (50.0)      1.0 (35.7)      0.4 (14.3)               0     2.8
Wisconsin.......................................................     11.0 (33.8)     11.0 (33.8)      5.5 (16.9)               0        5 tribal    32.5
                                                                                                                                          (15.4)
Illinois........................................................               0      4.7 (46.3)     1.25 (12.3)      4.2 (41.3)               0   10.15
Indiana.........................................................      5.5 (52.4)      5.0 (47.6)               0               0               0    10.5
Ohio............................................................               0        2.0 (50)               0        2.0 (50)               0     4.0
Pennsylvania....................................................      0.4 (26.7)      1.1 (73.3)               0               0               0     1.5
New York........................................................               0     12.4 (45.3)               0     14.6 (53.3)   0.4 TNC (1.5)    27.4
    Total (percentage of).......................................     53.5 (17.5)    141.2 (46.3)     13.85 (4.5)     85.2 (27.9)      11.4 (3.7)   305.1
--------------------------------------------------------------------------------------------------------------------------------------------------------

    There is no numerical estimate of the extent of the piping plover's 
historical range in the Great Lakes, but Russell (1983) indicates that 
several areas where piping plovers once nested are no longer suitable. 
Much historically occupied habitat has been destroyed by activities 
such as marina development, construction of seawalls, and the increased 
use of recreation areas. Additionally, lake level fluctuations and 
winter storms periodically alter the quantity and quality of available 
breeding habitat, making some areas no longer suitable for nesting 
while potentially creating new areas of suitable habitat. Because of 
the loss of historical habitat and the dynamic nature of the Great 
Lakes shoreline, some areas for which there are no historical records 
of piping plovers but which are potential nesting habitat are being 
proposed for designation. Without these potential habitat areas, there 
would not be enough nesting habitat to meet the recovery criteria 
outlined in the Revised Recovery Plan for Piping Plovers (1994).
    Lands proposed as critical habitat have been divided into 37 
critical habitat units that contain, or have the potential to develop, 
areas with the primary constituent elements for the piping plover in 
the Great Lakes region. All critical habitat unit boundaries extend 1 
km (0.62 miles) inland from the normal high water line, although the 
area that contains the primary constituent elements may vary depending 
on the extent of the open dune system. This area is needed to provide 
foraging habitat as well as cobble pans between the dunes where piping 
plovers occasionally nest. A brief description of each critical habitat 
unit for the piping plover is given below and in Table 2.

 Table 2.--Location, Ownership, Piping Plover Use, and Estimated Length of Critical Habitat Areas Within Mapped
                                Conservation Units in the U.S. Great Lakes Region
----------------------------------------------------------------------------------------------------------------
                                                  USGS 7.5' quad                                          Est.
  Habitat      Location name        County       map(s)  1:24,000  Land ownership 1    Plover use 2      length
    unit                                               scale                                              (km)
----------------------------------------------------------------------------------------------------------------
MI-1                                           Whitefish Point to Grand Marais
 
             Whitefish Point.  Chippewa........  Whitefish Point   Federal           Recent past,            2.5
                                                  (1951).           (Service),        transient.
                                                                    private.
             Vermilion/        Luce............  Vermilion (1951)  Private.........  Current.........        2.3
              Weatherhogs
              Beach.
             Crisp Point.....  Luce............  Betsy Lake North  Municipal,        Recent past.....        1.0
                                                  (1968).           private.
             Little Lake       Luce............  Betsy Lake North  Private.........  Recent past.....        1.6
              Harbor.                             (1968).
             Deer Park.......  Luce............  Muskallonge Lake  State, private..  Recent past.....        2.8
                                                  East (1968).
                                                 Muskallonge Lake
                                                  West (1968).
             Grand Marais      Alger...........  Grand Marais      Multiple          Current.........        2.9
              Inner Harbor                        1968.             private,
              and Lonesome                                          municipal.
              Point.
             Grand Marais      Alger...........  Grand Marais      Multiple          Current.........        1.2
              Superior Beach.                     1968.             private,
                                                                    Federal (NPS).
MI-2.......  Point Aux Chenes  Mackinac          Pointe Aux        Federal (USFS),   Current.........        1.7
                                                  Chenes (1964,     private.
                                                  photorevised
                                                  1975).
MI-3.......  Port Inland.....  Schoolcraft.....  Hughes Point      Private/State...  Current.........        3.0
                               Mackinac........   (1972).
 
MI-4                                   Waugoshance Point to beach west of McCort Hill--
 
             Waugoshance       Emmet...........  Big Stone Bay     State...........  Current.........        5.0
              Point,                              (1964,
              Temperance and                      photoinspected
              Crane Islands.                      1975).
                                                 Waugoshance
                                                  Island
                                                  (provisional
                                                  1982).
             Sturgeon Bay....  Emmet...........  Bliss (1982)....  State...........  Current.........        3.9
             Bliss Township    Emmet...........  Bliss (1982)....  Municipal.......  Current.........        1.1
              Park.

[[Page 41817]]

 
             Sturgeon Bay      Emmet...........  Bliss (1982)....  Multiple private  Current.........        2.4
              Point.                             Cross Village
                                                  (1982).
             Cross Village     Emmet...........  Cross Village     Municipal,        Current.........        1.3
              Beach.                              (1982).           multiple
                                                                    private.
             beach west        Emmet...........  Cross Village     Multiple private  Current.........        1.4
              McCort Hill.                        (1982).
 
MI-5                                   Sevenmile Point to Thorneswift Nature Preserve--
 
             Sevenmile Point.  Emmet...........  Forest Beach      Multiple private  Potential.......        0.5
                                                  (1983
                                                  provisional).
             Thorneswift       Emmet...........  Forest Beach      Multiple private  Current.........        0.4
              Nature Preserve.                    (1983
                                                  provisional).
MI-6         Petoskey State    Emmet...........  Harbor Springs    State, private..  Historical......        2.0
              Park.                               (1983
                                                  provisional).
MI-7         North Point.....  Charlevoix......  Ironton (1983)..  Municipal.......  Potential.......        1.1
                                                 Charlevoix
                                                  (1983).
MI-8         Fisherman's       Charlevoix......  Charlevoix        State...........  Current.........        1.3
              Island State                        (1983).
              Park.
 
MI-9                                  Indian Point to McCauley's Point, Beaver Island--
             Donegal Bay-      Charlevoix......  Garden Island     Multiple private  Current.........        2.0
              Beaver Island.                      West (1980).
                                                 Beaver Island
                                                  North (1986).
             McCauley's Point- Charlevoix......  Beaver Island     State...........  Recent past.....        0.6
              Beaver Island.                      North (1986).
MI-10        Greenes Bay-      Charlevoix......  Beaver Island     State/private...  Recent past.....        0.8
              Beaver Island.                      North (1986).
MI-11        High Island.....  Charlevoix......  High Island       State...........  Current.........        1.8
                                                  (1986).
 
MI-12                                          Cathead Bay to Christmas Cove--
 
             Cathead Bay.....  Leelanau........  Northport         State...........  Current.........        3.4
                                                  (provisional
                                                  1983).
             Cathead Point to  Leelanau........  Northport/        Private.........  Potential.......        2.5
              Christmas Cove.                     Northport NW
                                                  (provisional
                                                  1983).
MI-13        South Fox Island  Leelanau........  South Fox Island  State...........  Historical......        1.0
                                                  (provisional
                                                  1986).
MI-14        North Manitou...  Leelanau........  North Manitou     Federal (NPS)...  Current.........        3.3
                                                  Island
                                                  (provisional
                                                  1983).
MI-15        Crystal Run to    Leelanau........  Glen Arbor        Municipal,        Potential.......       14.3
              Empire Beach.                       (1983).           Federal.
                                                 Glen Haven
                                                  (1983) Empire
                                                  (1983).
 
MI-16                                    Esch Road to Sutter Road and Point Betsie--
 
             Platte Bay......  Benzie..........  Empire (1983)     Federal (NPS)...  Potential.......        7.0
                                                  Beulah
                                                  (provisional
                                                  1983).
             Platte River      Benzie..........  Beulah            Federal (NPS)...  Current.........        5.5
              Point and beach.                    (provisional
                                                  1983).
             Point Betsie....  Benzie..........  Frankfort (1983)  Federal (USCG)    Historical......        1.0
                                                                    TNC managed.
MI-17        Nordhouse Dunes   Mason...........  Manistee NW       Federal (USFS),   Transient,             13.4
              to Ludington.                       (provisional      State.            historical.
                                                  1982).
                                                 Hamlin Lake
                                                  (1982).
MI-18        Muskegon State    Muskegon........  Muskegon West     State...........  Historical......        2.5
              Park.                               (1972
                                                  photoinspected
                                                  1980).
MI-19        Lake Superior     Chippewa........  Albany Island     State...........  Historical......        3.0
              State Forest-                       (1964
              St. Vital Point.                    photoinspected
                                                  1976) DeTour
                                                  Village (1964).
 
MI-20                                        Lighthouse Point to Cordwood Point--
 
             Lighthouse Point  Cheboygan.......  Cheboygan (1982)  State...........  Recent past.....        1.4
             Grass Bay.......  Cheboygan.......  Cordwood Point    TNC preserve....  Historical,             1.6
                                                  (1982).                             transient.
MI-21        PH Hoeft State    Presque Isle....  Roger's City      State...........  Potential.......        3.7
              Park.                               (1971).
                                                 Moltke (1971)...
MI-22        Thompson's        Presque Isle....  Thompson's        State forest....  Potential.......        2.8
              Harbor.                             Harbor (1971).
MI-23        Tawas Point       Iosco...........  East Tawas        State...........  Transient.......        2.0
              State Park.                         (1989).
MN-1         Duluth Harbor...  St. Louis.......  West Duluth       Municipal,        Recent past.....        2.8
                                                  (1953,            State, and
                                                  photorevised      private.
                                                  1969).

[[Page 41818]]

 
WI-1         Wisconsin Point.  Douglas.........  Parkland (1954,   Municipal.......  Historical......        4.0
                                                  photorevised
                                                  1975).
                                                 Superior (1954,
                                                  photorevised
                                                  1983).
WI-2         Long Island-      Ashland.........  Cedar (1964,      Federal (NPS),    Current.........        5.0
              Chequamegon Pt.                     photorevised      tribal (Bad
                                                  1975).            River).
                                                 Chequamegon
                                                  Point.
 
             ................  ................  (1964,
                                                  photorevised
                                                  1975).
                                                 Long Island
                                                  (1964).
WI-3         Western Michigan  Ashland.........  Michigan Island   Federal (NPS)...  Potential.......        6.5
              Island.                             (1963).
WI-4         Seagull Bar.....  Marinette.......  Marinette East    Municipal.......  Potential.......        1.5
                                                  (1963,
                                                  photorevised
                                                  1969).
WI-5         Peshtigo Point..  Marinette.......  Peshtigo Harbor   State...........  Potential.......        2.8
                                                  (1974).
WI-6         Pensaukee.......  Oconto..........  Pensaukee (1974)  Federal (ACOE)..  Historical......        0.5
WI-7         Point Beach       Manitowoc.......  Two Rivers        State...........  Potential.......        8.0
              State Forest.                       (1978).
IL-1         Illinois Beach    Lake............  Zion, Ill.        Municipal,        Historical......       10.2
              State Park to                       (1993).           State, private.
              Waukegan Beach.                    Waukegan (1993).
IN-1         Indiana Dunes     Porter..........  Ogden Dunes       Federal (NPS),    Historical,            10.5
              National                            (1991).           State.            transient.
              Lakeshore/                         Dune Acres
              Indiana Dunes                       (1991).
              State Park.
OH-1         Sheldon Marsh...  Erie............  Huron (1969)....  State...........  Transient.......        1.2
                                                 Sandusky (1969,
                                                  photorevised
                                                  1975).
OH-2         Headlands Dunes.  Lake............  Mentor (1963,     State...........  Potential.......        0.8
                                                  revised 1992).
PA-1         Presque Isle      Erie............  Erie North        State, Federal    Historical,             1.5
              State Park.                         (1957, revised    (USCG).           transient.
                                                  1969 and 1975,
                                                  photoinspected
                                                  1977).
NY-1         Salmon River to   Oswego..........  Pulaski (1956)..  State, multiple   Historical......      27.4
              Stony Point.     Jefferson.......  Ellisburg (1958)   private.
                                                 Henderson (1959)
----------------------------------------------------------------------------------------------------------------
\1\ USACE = U.S. Army Corp of Engineers.
NPS = National Park Service.
TNC = The Nature Conservancy.
USFS = U.S. Forest Service.
USFWS = U.S. Fish and Wildlife Service.
USCG = U.S. Coast Guard.
\2\ Current = used for nesting since 1995 (49 km).
Recent past = used for nesting since 1985 (11.8 km).
Historical = used for nesting prior to 1985 (65 km).
Transient = Recent (since 1990) sightings of piping plovers (18 km).
Potential = no known record of use but habitat appears suitable for nesting (52 km).

Michigan

Unit MI-1: Whitefish Point to Grand Marais
    This unit encompasses approximately 83.5 km (50 mi) of Lake 
Superior shoreline in Chippewa, Luce, and Alger Counties on the Upper 
Peninsula of Michigan. It includes long stretches of habitat that have 
been recently used by piping plovers in addition to areas currently 
used by plovers. Approximately 47 km (29.2 mi) are part of Muskallonge 
State Park and Lake Superior State Forest, approximately 36 km (22.4 
mi) are privately owned, and approximately 0.5 km (0.3 mi) are part of 
Whitefish Point National Wildlife Refuge. This unit also includes a 
small area of municipal property at Crisp Point. This unit extends from 
the junction of the southern boundary of T50N R5W section 6 to the 
Pictured Rocks National Lakeshore property boundary.
Unit MI-2: Pointe Aux Chenes
    This unit encompasses approximately 2 km (1.2 mi) of Lake Michigan 
shoreline in Mackinac County on the Upper Peninsula of Michigan. It 
includes areas that are currently occupied by piping plovers. The 
majority of the unit (1.1 km (0.7 mi)) is within the Hiawatha National 
Forest and is being considered for a Research and Natural Area. The 
rest of the unit (approximately 0.6 km (0.4 mi)) is privately owned 
land. This unit extends from the mouth of the Pointe Aux Chenes river 
to the Hiawatha National Forest property boundary.
Unit MI-3: Port Inland to Hughes Point
    This unit encompasses approximately 3 km (1.8 mi) of Lake Michigan 
shoreline in western Mackinac and eastern Schoolcraft Counties on the 
Upper Peninsula of Michigan. It includes areas that are currently 
occupied by piping plovers. Approximately 0.8 km (0.5 mi) of the 
proposed shoreline is owned by Port Inland Stone and Dolomite Quarry 
and the remaining 2.2 km (1.4 mi) are part of the Lake Superior State 
Forest. This unit extends from the westernmost breakwall at the Port 
Inland Gaging Station to the mouth of Swan Creek.

[[Page 41819]]

Unit MI-4: Waugoshance Point to McCort Hill Beach
    This unit encompasses approximately 32 km (19.2 mi) of Lake 
Michigan shoreline in Emmet County, Michigan, and includes Temperance 
and Waugoshance islands. It includes areas that are currently occupied 
by piping plovers and supports about half of the current Great Lakes 
piping plover population. Approximately 8.5 km (5.3 mi) are privately 
owned and 1 km (0.6 mi) is municipal land (Bliss Township beach and 
Cross Village beach). The remaining 22.5 km (14 mi) are part of 
Wilderness State Park. This unit extends from the junction of the 
northeast corner of T39N R5W section 28 and the Lake Michigan shoreline 
to the southwest boundary of T37N R6W section 5.
Unit MI-5: Sevenmile Point to Thornswift Nature Preserve
    This unit encompasses approximately 7 km (4.3 mi) of Lake Michigan 
shoreline in Emmet County, Michigan. It includes areas of potential 
piping plover nesting habitat and areas that are currently occupied by 
piping plovers. The entire proposed area is under private ownership. It 
extends from the junction of the Lake Michigan shoreline and the 
northwest boundary of T36N R5W section 30 to the junction of the 
shoreline and the southwest corner of T35N R5W section 9.
Unit MI-6: Petoskey State Park
    This unit encompasses approximately 2 km (1.2 mi) of Lake Michigan 
shoreline in Emmet County, Michigan. It includes areas of historical 
piping plover habitat. Approximately 0.7 km (0.4 mi) is privately owned 
land and 1.3 km (0.8 mi) are part of Petoskey State Park. This unit 
extends from the mouth of Tannery Creek to Mononaqua Beach.
Unit MI-7: North Point
    This unit encompasses approximately 1.1 km (0.7 mi) of Lake 
Michigan shoreline in Charlevoix County, Michigan. It includes areas of 
potential piping plover nesting habitat. The entire proposed area is a 
city park owned by the city of Charlevoix. It includes all Lake 
Michigan shoreline within T34N R8W section 14.
Unit MI-8: Fisherman's Island State Park
    This unit encompasses approximately 1.3 km (0.8 miles) of Lake 
Michigan shoreline in Charlevoix County, Michigan. It includes areas 
that are currently occupied by piping plovers. The entire proposed area 
is within Fisherman's Island State Park. This unit extends from the 
junction of the line separating T34N R8W section 31 and T33N R8W 
section 6 from the Lake Michigan shore to the Fisherman's Island State 
Park property boundary at the end of Lakeshore Drive.
Unit MI-9: Indian Point to McCauley's Point, Beaver Island
    This unit encompasses approximately 5 km (3.1 mi) of Lake Michigan 
shoreline on Beaver Island in Charlevoix County, Michigan. It includes 
areas that are currently occupied, as well as areas that have been 
recently used by piping plovers. Approximately 4.4 km (2.7 mi) are 
privately owned and 0.6 km (0.4 mi) is part of Beaver Islands State 
Wildlife Research Area. This unit extends from Indian Point to the 
junction of the dividing line of T39 N R10W and T38N R10W and the Lake 
Michigan shoreline.
Unit MI-10: Greenes Bay, Beaver Island
    This unit encompasses approximately 0.8 km (0.5 mi) of Lake 
Michigan shoreline on Beaver Island in Charlevoix County, Michigan. It 
includes areas that have been recently used by piping plovers. 
Approximately 0.3 km (0.2 mi) is part of the Beaver Islands State 
Wildlife Research Area and the remaining 0.5 km (0.3 mi) is privately 
owned land. This unit extends from the junction of Lake Michigan and 
the northwest corner of T38N R11W section 25 to the junction of the 
Lake Michigan shoreline and the dividing line between T39N and T38N 
R10W.
Unit MI-11: High Island
    This unit encompasses approximately 1.8 km (1.1 mi) of Lake 
Michigan shoreline on High Island in Charlevoix County, Michigan. It 
includes areas that are currently occupied by piping plovers. The 
entire proposed area is part of the Beaver Islands State Wildlife 
Research Area. This unit includes all Lake Michigan shoreline within 
T39N R11W sections 5, 27, and 32.
Unit MI-12: Cathead Bay to Christmas Cove
    This unit encompasses approximately 5.9 km (3.7 mi) of Lake 
Michigan shoreline in Leelanau County, Michigan. It includes areas that 
are currently occupied by piping plovers and areas of potential piping 
plover nesting habitat. Approximately 1.9 km (1.2 mi) are part of 
Leelanau State Park, and the remaining 4.0 km are privately owned land. 
This unit extends from the intersection of the Lake Michigan shoreline 
and the line between T32N R11W section 12 and T32N R10W section 7 to 
the intersection of the shoreline with the southern boundary of T32N 
R11W section 16 north of Christmas Cove (Northport NW quad).
Unit MI-13: South Fox Island
    This unit encompasses approximately 1 km (0.6 mi) of Lake Michigan 
shoreline on South Fox Island in Leelanau County, Michigan. It includes 
areas that were historically occupied by piping plovers. The entire 
proposed area is part of the Beaver Island State Wildlife Research 
Area. This unit includes all Lake Michigan shoreline within T34N R13W 
sections 15, 16, and 21 and T35R13W section 30.
Unit MI-14: North Manitou Island
    This unit encompasses approximately 3.3 km (2 mi) of Lake Michigan 
shoreline on North Manitou Island in Leelanau County, Michigan. It 
includes areas that are currently occupied by piping plovers. The 
entire proposed area is part of Sleeping Bear Dunes National Lakeshore. 
This unit includes all Lake Michigan shoreline within T31N R14W 
sections 22, 23, 27, and 28.
Unit MI-15: Crystal Run to Empire Beach
    This unit encompasses approximately 14.3 km (8.9 mi) of Lake 
Michigan shoreline in Leelanau County, Michigan. It includes areas of 
potential piping plover nesting habitat. Approximately 4.0 km (2.5 mi) 
are municipal beach, and the remaining 10.3 km (6.4 mi) are part of 
Sleeping Bear Dunes National Lakeshore. This unit extends from Crystal 
Run to the southern Sleeping Bear Dunes National Lakeshore property 
boundary.
Unit MI-16: Esch Road to Sutter Road and Point Betsie
    This unit encompasses approximately 13.5 km (8.4 mi) of Lake 
Michigan shoreline in Benzie County, Michigan. It includes areas that 
are currently occupied by piping plovers, areas that were historically 
occupied, and areas of potential piping plover nesting habitat. The 
majority of the unit (12.5 km (7.8 mi)) is part of Sleeping Bear Dunes 
National Lakeshore, and the remaining 1.0 km (0.6 mi) is U.S. Coast 
Guard land that is managed by The Nature Conservancy, a private 
conservation organization. This unit extends from Esch Road to T26N 
R16W section 4.
Unit MI-17: Nordhouse Dunes and Ludington State Park
    This unit encompasses approximately 13.4 km (8.3 mi) of Lake 
Michigan shoreline in Mason County, Michigan. It includes areas that 
were historically occupied by piping plovers. At least one pair of 
piping plovers were sighted in

[[Page 41820]]

the area in 1999, but no nests were found. Approximately 7.4 km (4.6 
mi) are part of the Manistee National Forest/ Nordhouse Dunes 
Wilderness Area, and the remaining 6.0 km (3.7 mi) are part of 
Ludington State Park. This unit extends from the mouth of Cooper Creek 
to the mouth of the Big Sable River.
Unit MI-18: Muskegon State Park
    This unit encompasses approximately 2.5 km (1.6 mi) of Lake 
Michigan shoreline in Muskegon County, Michigan. It includes areas that 
were historically occupied by piping plovers. In the early 1950s, 
several pairs of piping plovers were reported nesting in this unit, but 
the last known nesting was in 1953. The entire proposed area is part of 
Muskegon State Park. This unit extends from the north breakwall of the 
canal joining Muskegon Lake and Lake Michigan to the northern Muskegon 
State Park property boundary at the shoreline.
Unit MI-19: Lake Superior State Forest-St. Vital Point
    This unit encompasses approximately 3.0 km (1.9 mi) of Lake Huron 
shoreline in Chippewa County, Michigan. It includes areas that were 
historically occupied by piping plovers. The entire proposed area is 
within Lake Superior State Forest. This unit extends from the Lake 
Superior State Forest boundary to the mouth of Joe Straw Creek.
Unit MI-20: Lighthouse Point to Cordwood Point
    This unit encompasses approximately 8.3 km (5.2 mi) of Lake Huron 
shoreline in Cheboygan County, Michigan. It includes areas that were 
historically occupied by piping plovers and currently serve as foraging 
areas. Approximately 3 km (1.9 mi) are part of Cheboygan State Park, 
and approximately 1.6 km (1 mi) are Nature Conservancy property. The 
remaining 0.6 km (0.4 mi) is privately owned land. This unit extends 
from the junction of the Lake Huron shoreline and the western boundary 
of T38N R1W section 22 to just west of Cordwood Point (Cordwood Point 
quad).
Unit MI-21: P.H. Hoeft State Park
    This unit encompasses approximately 3.7 km (2.3 mi) of Lake Huron 
shoreline in Presque Isle County, Michigan. It includes areas of 
potential piping plover nesting habitat. The entire proposed area is 
part of P.H. Hoeft State Park. This unit includes Lake Huron shoreline 
from T35N R5E section 6 to the junction of Nagel Road and Forty Mile 
Road.
Unit MI-22: Thompson's Harbor State Park
    This unit encompasses approximately 2.8 km (1.7 mi) of Lake Huron 
shoreline in Presque Isle County, Michigan. It includes areas of 
potential piping plover nesting habitat. Most of this proposed area is 
within Thompson's Harbor State Park with a small portion of privately 
owned land. This unit extends along the Lake Huron shoreline from Black 
Point to Grand Lake Outlet.
Unit MI-23: Tawas Point State Park
    This unit encompasses approximately 2.0 km (1.2 mi) of Lake Huron 
shoreline in Iosco County, Michigan. It includes areas used for 
foraging by transient piping plovers and potential nesting habitat. The 
entire proposed area is part of Tawas Point State Park. This unit 
extends from the Tawas Sate Park boundary on the east side of Tawas 
Point to T22N R8E section 34.

Minnesota

Unit MN-1: Duluth Harbor
    This unit encompasses approximately 2.8 km (1.7 mi) of Lake 
Superior mainland and island shoreline in St. Louis County, Minnesota, 
including Erie Pier, Hearding Island, and Interstate Island. It 
includes areas that have been recently occupied by piping plovers. The 
approximate 1 km (0.6 mi) of shoreline at Erie Pier is owned by the 
city of Duluth. The approximate 1.2 km (0.7 mi) of island shore line on 
Hearding Island is a State Wildlife Management Area and bird sanctuary. 
A portion of the 0.6 km (0.4 mi) of island shoreline on Interstate 
Island is in Minnesota, and a portion is in Wisconsin. Approximately 
0.2 km (0.1 mi) of Interstate Island shoreline is owned by the State of 
Minnesota and is a State Wildlife Management Area and bird sanctuary. 
The remaining 0.4 km (0.2 mi) of Interstate Island shoreline is in 
Wisconsin and is private land owned by C. Rice Coal and Burlington 
Northern Railroad. This unit includes the dredge spoil flats bounded by 
the seawall northeast of the railroad tracks in Duluth as well as 
Interstate and Hearding Islands.

Wisconsin

Unit WI-1: Wisconsin Point
    This unit encompasses approximately 4.0 km (2.5 mi) of Lake 
Superior shoreline in Douglas County, Wisconsin. It includes areas that 
were historically occupied by piping plovers. The entire proposed area 
is municipal land belonging to the city of Superior. This unit extends 
from the mouth of Dutchman Creek to the Douglas and St. Louis County 
line.
Unit WI-2: Long Island/Chequamegon Point
    This unit encompasses approximately 18 km (11.2 mi) of Lake 
Superior shoreline in Ashland County, Wisconsin. It includes areas 
currently occupied by piping plovers. Nesting occurred in this unit in 
1998 and 1999. Approximately 13 km (8.1 mi) are part of the Apostle 
Islands National Lakeshore, and the remaining 5 km (3.1 mi) are Tribal 
lands belonging to the Bad River Band of Lake Superior Tribe of 
Chippewa Indians. This unit extends from the mouth of the Newago Creek 
to Chequamegon Point Light.
Unit WI-3: Western Michigan Island Beach and Dunes
    This unit encompasses approximately 6.5 km (4 mi) of Lake Superior 
shoreline on Michigan Island in Ashland County, Wisconsin. It includes 
areas of potential piping plover nesting habitat. The entire proposed 
area is part of the Apostle Island National Lakeshore. This unit 
includes all Lake Superior shoreline on Michigan Island within T51N R1W 
sections 28, 20, and 21.
Unit WI-4: Seagull Bar
    This unit encompasses approximately 1.5 km (0.9 mi) of Lake 
Michigan shoreline in Marinette County, Wisconsin. It includes areas of 
potential piping plover nesting habitat. The entire proposed area is 
municipal land. This unit extends from the end of Leonard Street at Red 
Arrow Park to the south end of Seagull Bar including nearshore sand 
bars.
Unit WI-5: Peshtigo Point
    This unit encompasses approximately 2.8 km (1.7 mi) of Lake 
Michigan shoreline in Marinette County, Wisconsin. It includes areas of 
potential piping plover nesting habitat. The entire proposed area is 
part of the Peshtigo Harbor State Wildlife Area. This unit extends from 
Peshtigo Point to the mouth of the Peshtigo River.
Unit WI-6: Pensaukee Dredge Spoil Island
    This unit encompasses less than 0.5 km (0.3 mi) of Lake Michigan 
island shoreline in Oconto County, Wisconsin. It includes areas that 
were historically occupied by piping plovers. The island is a U.S. Army 
Corp of Engineers dredge spoil island. This unit includes the island 
just south of the mouth of the Pensaukee River in T27N, R21E section 
14.

[[Page 41821]]

Unit WI-7: Point Beach State Forest
    This unit encompasses approximately 8 km (5 mi) of Lake Michigan 
shoreline in Manitowoc County, Wisconsin. It includes areas of 
potential piping plover nesting habitat. The entire proposed area is 
part of the Point Beach State Forest. This unit extends from the 
southwest property boundary of Point Beach State Forest to Rawley 
Point.

Illinois

Unit IL-1: Illinois Beach State Park / Nature Preserve to Waukegan 
Beach
    This unit encompasses approximately 10.2 km (6.3 mi) of Lake 
Michigan shoreline in Lake County, Illinois. It includes areas that 
were historically occupied by piping plovers. Approximately 4.7 km (2.9 
mi) are part of the Illinois Beach State Park and Nature Preserve, 
approximately 1.3 km (0.8 mi) are municipal property (Zion municipal 
park and Waukegan municipal beach), and the remaining 4.2 km (2.6 mi) 
are privately owned. This unit extends from 17th Street and the Lake 
Michigan shoreline in Illinois Beach State Park to the Waukegan Beach 
breakwall at North Beach Park.

Indiana

Unit IN-1: Indiana Dunes National Lakeshore and Indiana Dunes State 
Park Beaches
    This unit encompasses approximately 10.5 km (6.5 mi) of Lake 
Michigan shoreline in Porter County, Indiana. It includes areas that 
were historically occupied by piping plovers. Approximately 5 km (3.1 
mi) are part of Indiana Dunes State Park and the remaining 5.5 km (3.4 
mi) are part of Indiana Dunes National Lakeshore. This unit extends 
from the Burns Harbor eastern breakwall along the Indiana Dunes State 
Park to Kemil Road at Beverly Shores.

Ohio

Unit OH-1: Sheldon Marsh
    This unit encompasses approximately 3.2 km (2.0 mi) of Lake Erie 
shoreline in Erie County, Ohio. It includes areas that are used by 
transient piping plovers and potential nesting habitat. Approximately 
1.2 km (0.7 mi) are part of Sheldon Marsh State Nature Preserve, and 
the remaining 2.0 km (1.2 mi) are privately owned land. This unit 
extends from the mouth of Sawmill Creek to the western property 
boundary of Sheldon Marsh State Natural Area.
Unit OH-2: Headland Dunes
    This unit encompasses approximately 0.8 km (0.5 mi) of Lake Erie 
shoreline in Lake County, Ohio. It includes areas of potential piping 
plover nesting habitat. The entire proposed area is part of Headland 
Dunes State Nature Preserve. This unit extends from the eastern 
boundary line of Headland Dunes Nature Preserve to the western boundary 
of the Nature Preserve and Headland Dunes State Park.

Pennsylvania

Unit PA-1: Gull Point Natural Area, Presque Isle State Park
    This unit encompasses approximately 1.5 km (0.9 mi) of Lake Erie 
shoreline in Erie County, Pennsylvania. It includes foraging areas for 
transient piping plovers and areas that were historically occupied. 
Approximately 1.1 km (0.7 mi) are part of the Presque Isle State Park, 
and the remaining 0.4 km (0.2 mi) is U.S. Coast Guard property. This 
unit extends from the lighthouse north of Peninsula Drive on the north 
side of Presque Isle to the breakwall south of the Coast Guard Station 
on Thompson Bay. It includes any new beach habitat that may accrete 
along the present shoreline portion of the unit.

New York

Unit NY-1: Salmon River to Stony Point
    This unit encompasses approximately 27.4 km (17 mi) of Lake Ontario 
shoreline in Jefferson and Oswego Counties, New York. It includes areas 
that were historically occupied by piping plovers. Approximately 12.4 
km (7.7 mi) are State land (New York State Department of Environmental 
Conservation (DEC) Wildlife Management Area/ New York DEC Unique Area 
and New York State Park), approximately 14.6 km (9.1 mi) are privately 
owned, and the remaining 0.4 km (0.2 mi) belong to The Nature 
Conservancy. This unit extends from the mouth of the Salmon River to 
the Eldorado Road.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires all Federal agencies to ensure 
that actions they fund, authorize, or carry out are not likely to 
destroy or adversely modify critical habitat. Individuals, 
organizations, States, tribes, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding.
    Section 7(a) of the Act requires all Federal agencies to evaluate 
their actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its proposed or designated 
critical habitat. 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. If a species is listed or critical habitat is 
designated, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the 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 
must consult with us.
    When we issue a biological opinion concluding that a Federal action 
is likely to result in 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 we believe would avoid resulting in the 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 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 or conferencing with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.

[[Page 41822]]

    We may issue a formal conference report on proposed critical 
habitat if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain a biological opinion that is prepared 
according to 50 CFR 402.14, as if the proposed critical habitat were 
already designated. Conference reports, required for species proposed 
for listing as threatened or endangered, or for proposed critical 
habitat designations, provide conservation recommendations to assist 
the agency in eliminating conflicts that may be caused by the agency's 
proposed action. The conservation recommendations in a conference 
report are advisory. We may adopt the formal conference report as the 
biological opinion when the critical habitat is designated, if no 
significant new information or changes in the Federal action alter the 
content of the opinion (see 50 CFR 402.10(d)).
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities that may adversely modify such habitat or may be affected by 
such designation. Activities that may destroy or adversely modify 
critical habitat include those that alter the primary constituent 
elements to the extent that the value of critical habitat for both the 
survival and recovery of the Great Lakes breeding population of the 
piping plover is appreciably diminished. In the case of occupied 
habitat, such activities may also jeopardize the continued existence of 
the Great Lakes population of piping plovers. In the case of unoccupied 
habitat, such activities may alter the ability of an area to develop 
the primary constituent elements.
    An activity will likely not adversely modify critical habitat 
within a designated critical habitat unit if the specific area does not 
contain any primary constituent elements. For example, existing areas 
such as parking lots, paved roads, and various kinds of human-built 
structures within critical habitat unit boundaries would not furnish 
habitat or biological features for piping plovers. Furthermore, some 
activities would not be restricted by critical habitat designation 
because they would have no adverse effect on the primary constituent 
elements or the ability of an area to develop those elements.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, the effects of destruction or adverse modification 
of critical habitat would almost always be reflected in the effects on 
the species itself when the area of the proposed action is occupied by 
the species concerned. Designation of critical habitat in areas 
occupied by the piping plover is not likely to result in regulatory 
protection of the species above that already in place due solely to the 
presence of the listed species. However, designation of critical 
habitat in areas that are not known to be occupied by this species may 
result in additional consultations between us and other Federal 
agencies; these additional consultations may affect Federal actions 
beyond those that are already affected by the listing of the piping 
plover as endangered.
    Federally funded, permitted, or authorized activities that could 
adversely affect critical habitat of the Great Lakes breeding 
population of the piping plover include, but are not limited to the 
following: (1) Marina and boat launch construction and maintenance; (2) 
harbor dredging and dredge spoil placement and disposal; (3) fill of 
interdunal wetlands for residence, driveway, or other construction; (4) 
waste-water discharge from communities; (5) all-terrain vehicular 
activity on beaches or the construction of facilities that increase 
such activity; (6) beach stabilization activities that impede natural 
overwash processes including beach nourishment, planting of vegetation, 
and construction and maintenance of seawalls, breakwaters, and other 
off-shore stabilizing devices; and (7) sale, exchange, or lease of 
Federal land that contains suitable habitat that is likely to result in 
the habitat being destroyed or appreciably degraded. Additionally, 
public access may be temporarily or seasonally restricted on beaches 
having a Federal nexus in order to determine which areas may be 
utilized for nesting. These beaches could be closed to assess the use 
by piping plovers in the spring months. Some of these closures may be 
voluntary by governmental and private land managers. Most closures 
would end prior to the time the public would frequent these beaches. 
Designation of critical habitat for piping plovers breeding in the 
Great Lakes notifies the U.S. Army Corps of Engineers, other permitting 
agencies, and the public that the Clean Water Act section 404 
nationwide permits and other Federal authorizations for activities 
within these designated critical habitat areas must comply with section 
7 consultation requirements. For each section 7 consultation, we will 
review the direct and indirect effects of the proposed projects on 
piping plovers and their critical habitat.

Relationship to Incidental Take Permits Issued Under Section 10

    One habitat conservation planning effort is currently in progress 
within the range of the Great Lakes breeding population of piping 
plovers. The Magic Carpet Woods Association applied to the Service for 
an Incidental Take Permit for the piping plover. Incidental take is a 
potential indirect result of the applicant's proposed residential 
development along a 0.8 km (0.5 mi) section of Lake Michigan beach in 
Leelanau County, Michigan. A Habitat Conservation Plan (HCP) submitted 
with the application will likely avoid or minimize incidental take of 
piping plovers. The proposed development falls within proposed piping 
plover critical habitat; however, no construction is proposed on the 
beach portion of the property. We will continue to work with the 
applicant so as to prevent the project from adversely modifying or 
destroying proposed critical habitat. The beach on this property 
currently does not constitute piping plover nesting habitat, but likely 
provides foraging habitat and potential nesting habitat.
    In the event that additional HCPs covering the Great Lakes piping 
plover are developed in the future within the proposed critical 
habitat, we will work with applicants to ensure the HCPs provide for 
protection and management of habitat areas essential for the 
conservation of the piping plover, while directing development and 
habitat modification to nonessential areas of lower habitat value. The 
HCP development process provides an opportunity for more intensive data 
collection and analysis regarding the use of particular habitat areas 
by the piping plover. The process also enables us to conduct detailed 
evaluations of the importance of such lands to the long-term survival 
of the species. We fully

[[Page 41823]]

expect that HCPs undertaken by local jurisdictions (e.g., townships, 
counties) and other parties will identify, protect, and provide 
appropriate management for lands that are essential for the long-term 
conservation of the species. We believe that our analyses of future 
HCPs and future permits under section 7 will show that activities 
carried out in accordance with the provisions of the HCPs and permits 
will not result in destruction or adverse modification of critical 
habitat.
    We will provide technical assistance and work closely with 
applicants throughout the development of HCPs to identify appropriate 
conservation management and lands essential for the long-term 
conservation of the piping plover and assure that they do not adversely 
modify or destroy the critical habitat. We are soliciting comments on 
whether future approval of HCPs and issuance of section 10(a)(1)(b) 
permits for the piping plover should trigger revisions of designated 
critical habitat to exclude lands within HCP areas, and, if so, by what 
mechanism (see Public Comments Solicited section).

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
as critical habitat upon a determination that the benefits of such 
exclusion outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species. We will conduct 
an analysis of the economic impacts of designating these areas as 
critical habitat prior to a final determination. When completed, we 
will announce the availability of the draft economic analysis with a 
notice in the Federal Register, and we will reopen the comment period 
for 30 days at that time to accept comment on the economic analysis or 
further comments on the proposed rule.

Public Comments Solicited

    We intend that any final action resulting from the proposal will be 
as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, Native American Tribes, the scientific community, industry, 
or any other interested party concerning this proposed rule. We 
particularly seek comments concerning:
    1. The reasons why any habitat should or should not be determined 
to be critical habitat for the Great Lakes breeding population of 
piping plovers as provided by section 4 of the Act, including whether 
the benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat;
    2. Specific information on the amount and distribution of piping 
plover nesting habitat in the Great Lakes region, and what nesting 
habitat is essential to the conservation of the Great Lakes breeding 
population of the species and why;
    3. Specific information on the amount and distribution of Great 
Lakes breeding piping plovers;
    4. Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    5. Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    6. Economic and other values associated with designating critical 
habitat for the Great Lakes breeding population of piping plover, such 
as those derived from non-consumptive uses (e.g., hiking, camping, 
birdwatching, enhanced watershed protection, ``existence values,'' and 
reductions in administrative costs; and
    7. The advisability of designating as critical habitat sites that 
are not documented to have occupied historically but are deemed 
potential breeding habitat because their characteristics are suitable 
for breeding by piping plovers.
    Additionally, we are seeking comments on critical habitat 
designation relative to future HCPs. Future conservation planning 
efforts may occur within the range of the piping plover in areas we are 
proposing as critical habitat. We invite comments on the 
appropriateness of the following alternative approaches we are 
considering regarding critical habitat designations within the 
boundaries of future approved HCPs upon issuance of section 10(a)(1)(B) 
permits for the piping plover.
    (1) Retain critical habitat designation within the HCP boundaries 
and use the section 7 consultation process on the issuance of the 
incidental take permit to ensure that any take we authorize will not 
destroy or adversely modify critical habitat;
    (2) Revise the critical habitat designation upon approval of the 
HCP and issuance of the section 10(a)(1)(B) permit to retain only 
preserve areas, on the premise that they encompass areas essential for 
the conservation of the species within the HCP area and require special 
management and protection in the future. Assuming that we conclude, at 
the time an HCP is approved and the associated incidental take permit 
is issued, that the plan protects those areas essential to the 
conservation of the piping plover, we would revise the critical habitat 
designation to exclude areas outside the reserves, preserves, or other 
conservation lands established under the plan. Consistent with our 
listing program priorities, we would publish a proposed rule in the 
Federal Register to revise the critical habitat boundaries;
    (3) As in (2) above, retain only preserve lands within the critical 
habitat designation, on the premise that they encompass areas essential 
for conservation of the species within the HCP area and require special 
management and protection in the future. However, under this approach, 
the exclusion of areas outside the preserve lands from critical habitat 
would occur automatically upon issuance of the incidental take permit. 
The public would be notified and have the opportunity to comment on the 
boundaries of the preserve lands and the revision of designated 
critical habitat during the public review and comment process for HCP 
approval and permitting;
    (4) Remove designated critical habitat entirely from within the 
boundaries of an HCP when the plan is approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no further special management or protection 
is required. Consistent with our listing program priorities, we would 
publish a proposed rule in the Federal Register to revise the critical 
habitat boundaries; or
    (5) Remove designated critical habitat entirely from within the 
boundaries of HCPs when the plans are approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no additional special management or 
protection is required. This exclusion from critical habitat would 
occur automatically upon issuance of the incidental take permit. The 
public would be notified and have the opportunity to comment on the 
revision of designated critical habitat during the public notification 
process for HCP approval and permitting.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours.

[[Page 41824]]

Individual respondents may request that we withhold their home address 
from the rulemaking record, which we will honor to the extent allowable 
by law. In some circumstances, we would withhold from the rulemaking 
record a respondent's identity, as allowable by law. If you wish for us 
to withhold your name and/or address, you must state this request 
prominently at the beginning of your comment. 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. All 
comments, including written and e-mail, must be received by September 
5, 2000.
    In accordance with our policy published 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 listing and critical habitat decisions are 
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 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 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
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 rule 
clearly stated? (2) Does the rule contain technical language or jargon 
that interferes with the clarity? (3) Does the format of the rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the rule in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? What else could we do to make the proposed rule 
easier to understand?
    Send a copy of any comments that concern 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: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB), under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. The Great Lakes 
breeding population of piping plover was listed as an endangered 
species in 1985. In fiscal years 1992 through 1999, we conducted only 
one formal section 7 consultation with other Federal agencies to ensure 
that their actions would not jeopardize the continued existence of the 
piping plover.
    Approximately 255 km (159 mi) of the areas encompassing proposed 
critical habitat for the Great Lakes breeding population of piping 
plovers are currently unoccupied by piping plovers. The remaining 49 km 
(30 mi) of the total designated critical habitat area are currently 
occupied by piping plovers. Under the Act, critical habitat may not be 
adversely modified or destroyed by a Federal agency action; critical 
habitat does not impose any restrictions on non-Federal persons unless 
they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency (see Table 3 below). Section 7 requires 
Federal agencies to ensure that they do not jeopardize the continued 
existence of the species.
    The designation of currently occupied areas as critical habitat 
does not have any incremental impacts on what actions may or may not be 
conducted by Federal agencies or non-Federal persons that receive 
Federal authorization or funding. Non-Federal persons that do not have 
a Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat (however, they continue to be bound by 
the provisions of the Act concerning ``take'' of the species).
    Designation of unoccupied areas as critical habitat may have 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding, 
but we expect little additional impact from designating these areas as 
critical habitat. We will evaluate this impact through our economic 
analysis (see Economic Analysis section of this rule).
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
piping plovers since the listing in 1985. The prohibition against 
adverse modification of critical habitat is not expected to impose any 
additional restrictions to those that currently exist in occupied areas 
of proposed critical habitat. Additional restrictions may be imposed in 
unoccupied areas proposed as critical habitat; we will evaluate this 
possibility through our economic analysis. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this proposed action for any inconsistencies with other Federal agency 
actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and, as 
discussed above, we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
additional effects in areas of occupied habitat. The critical habitat 
designation may have some additional effects on the unoccupied areas of 
proposed critical habitat. We will review the effects of this proposed 
action on Federal agencies or non-Federal persons that receive Federal 
authorization or funding in the area of critical habitat with unknown 
occupancy.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

[[Page 41825]]



 Table 3.--Activities Potentially Impacted by Piping Plover Listing and
                      Critical Habitat Designation
------------------------------------------------------------------------
                                                         Additional
                                   Activities            activities
  Categories of activities    potentially affected  potentially affected
                                by species listing   by critical habitat
                                     only 1             designation 2
------------------------------------------------------------------------
Federal Activities            Direct take and       None in occupied
 Potentially Affected 3.       activities such as    habitat. In
                               removing or           unoccupied habitat,
                               destroying piping     no additional types
                               plover breeding       of activities will
                               habitat, whether by   be affected, but
                               mechanical,           consultation will
                               chemical, or other    be required on
                               means (e.g.,          these activities in
                               construction, road    additional areas.
                               building, boat
                               launch and marina
                               construction or
                               maintenance, beach
                               nourishment);
                               recreational
                               activities that
                               significantly deter
                               the use of suitable
                               habitat areas by
                               piping plovers or
                               alter habitat
                               through associated
                               maintenance
                               activities (e.g.,
                               off-road vehicle
                               parks, paved
                               walking paths);
                               sale, exchange, or
                               lease of Federal
                               land that contains
                               suitable habitat
                               that may result in
                               the habitat being
                               destroyed or
                               appreciably
                               degraded (e.g.,
                               shoreline
                               development,
                               building of
                               recreational
                               facilities such as
                               off-road vehicle
                               parks, road
                               building);
                               activities that may
                               result in increased
                               human activity and
                               disturbance..
Private and other non-        Direct take and       None in occupied
 Federal Activities            activities such as    habitat. In
 Potentially Affected 4.       removing or           unoccupied habitat,
                               destroying piping     no additional types
                               plover habitat,       of activities will
                               whether by            be affected, but
                               mechanical,           consultation will
                               chemical, or other    be required on
                               means (e.g.,          these activities by
                               construction, road    the Federal agency
                               building, boat        that regulates that
                               launch and marina     Federal action in
                               construction or       additional areas.
                               maintenance, beach
                               nourishment) and
                               appreciably
                               decreasing habitat
                               value or quality
                               (e.g., increased
                               predation, invasion
                               of exotic species,
                               increased human
                               presence or
                               disturbance) that
                               require a Federal
                               action (permit,
                               authorization, or
                               funding).
------------------------------------------------------------------------
1 This column represents the activities potentially affected by listing
  the piping plover as an endangered species (December 11, 1985; 50 FR
  50726) under the Endangered Species Act.
2 This column represents the activities potentially affected by the
  critical habitat designation in addition to those activities
  potentially affected by listing the species.
3 Activities initiated by a Federal agency.
4 Activities initiated by a private or other non-Federal entity that may
  need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis, we will determine whether designation of 
critical habitat will have a significant effect on a substantial number 
of small entities. As discussed under Regulatory Planning and Review 
above, this rule is not expected to result in any restrictions in 
addition to those currently in existence for areas of occupied critical 
habitat. However, we would expect additional restrictions in areas of 
unoccupied habitat. As indicated on Table 1 (see Proposed Critical 
Habitat Designation section), we designated property owned by Federal, 
State, tribal, and local governments, and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potentially adversely modifying 
critical habitat are:
    (1) Regulation of activities affecting waters of the United States 
by the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act;
    (2) Regulation of water flows, water delivery, and diversion by 
Federal agencies;
    (3) Sale, exchange, or lease of lands owned by a Federal agency;
    (4) Road construction and maintenance and right-of-way designation;
    (5) Funding of low-interest loans to facilitate the construction of 
low-income housing by the Department of Housing and Urban Development;
    (6) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (7) Promulgation of air and water quality standards under the Clean 
Air Act and the Clean Water Act and the cleanup of toxic waste and 
superfund sites under the Resource Conservation and Recovery Act (RCRA) 
and the Comprehensive Environmental Response, Compensation, and 
Liability Act by the U.S. Environmental Protection Agency;
    (8) Issuance of Endangered Species Act section 10(a)(1)(B) permits 
by the Fish and Wildlife Service; and
    (9) Activities funded, carried out, or authorized by any Federal 
agency.
    Many of these activities sponsored by Federal agencies within the 
proposed critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities in areas of critical 
habitat occupied by the species. We expect little additional effect for 
the unoccupied areas of proposed critical habitat. In the economic 
analysis, we will evaluate whether designation of critical habitat in 
the unoccupied areas will have an effect on activities carried out by 
small entities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

[[Page 41826]]

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we will determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat in areas where they have not 
previously undergone consultation not to jeopardize the species.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This proposed rule, if made final, will not ``take'' 
private property. Critical habitat designation is applicable only to 
Federal lands and to private lands if a Federal nexus exists. We do not 
designate private lands as critical habitat unless the areas are 
essential to the conservation of a species.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, the Service requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in Minnesota, Wisconsin, Michigan, Illinois, Indiana, 
Ohio, Pennsylvania, and New York, as well as during the listing 
process. We will continue to coordinate any future designation of 
critical habitat for the Great Lakes piping plover with the appropriate 
State agencies. The designation of critical habitat for the piping 
plover imposes few additional restrictions to those currently in place 
and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments in that the areas 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, doing so 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 designate critical habitat in accordance with the 
provisions of the Act and plan public hearings on the proposed 
designation during the comment period. The 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 Great Lakes breeding population of piping plover.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

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) and the Department of the Interior's 
requirement at 512 DM 2, we understand that we must coordinate with 
recognized Federal Tribes on a Government-to-Government basis. We 
believe that certain Tribal lands are essential for the conservation of 
the piping plover because they support essential populations and 
habitat. Therefore, we are considering designating critical habitat for 
the piping plover on Tribal lands. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat 
according to section 4(b)(2) of the Act. However, we cannot exclude 
such areas from critical habitat if doing so will result in the 
extinction of the species. Due to the short amount of time allowed 
under the court order for preparing this proposed rule, we have not yet 
completed consultation with the affected Tribe, but we will do so 
before making a final decision on critical habitat.

Public Hearings

    We have scheduled seven public hearings at the following addresses 
on the dates indicated.
    1. Newberry, MI on July 19, 2000, at Newberry High School 
Auditorium, 700 Newberry Avenue.
    2. Traverse City, MI on July 20, 2000, at Grand Traverse Civic 
Center, 1213 West Civic Center Drive.
    3. Ashland, WI on July 17, 2000, at the Northern Great Lakes 
Center, 29270 County Highway G.
    4. Green Bay, WI on July 18, 2000, at Brown County Central Library, 
515 Pine Street.
    5. Indiana Dunes National Lakeshore, IN on July 24, 2000, at the 
Dorothy Buell Memorial Visitors Center, just west of Beverly Shores on 
Kemil Road between U.S. Highways 12 and 20.
    6. Cleveland, OH on July 25, 2000, at The Great Lakes Science 
Center, 601 Erieside Avenue.
    7. Watertown, NY on July 27, 2000, at Dulles State Office Building, 
317 Washington Street, 1st Floor Conference Room.
    All comments that we receive at these hearings, both verbal and 
written, will be considered prior to making our decision on critical 
habitat designation. Copies of the transcripts from the hearings will 
be available for review by scheduling an appointment during normal 
business hours at the locations given above (see ADDRESSES section).

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Fort Snelling Regional Office (see 
ADDRESSES section).

[[Page 41827]]

    Author: The primary author of this notice is Laura J. Ragan (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulations Promulgation

    For the reasons given in the preamble, we propose to amend 50 CFR 
part 17 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. In Sec. 17.11(h) revise the entry for ``Plover, piping'' under 
``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                     Vertebrate
--------------------------------------------------------                         population where                        When       Critical     Special
                                                             Historic range        endangered or          Status        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 States
                                                          Great Plains,         of IL, IN, MI, MN,
                                                          Atlantic and Gulf     NY, OH, PA, and WI
                                                          coasts, PR, VI),      and Canada (Ont.).
                                                          Canada, Mexico,
                                                          Bahamas, West
                                                          Indies.
 
          *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.95, add critical habitat for the Great Lakes piping 
plover (Charadrius melodus) under paragraph (b) in the same 
alphabetical order as this species occurs in Sec. 17.11 (h) to read as 
follows:


Sec. 17.95  Critical habitat-fish and wildlife.

* * * * *
    (b) Birds.
* * * * *

PIPING PLOVER (Charadrius melodus)--Great Lakes Breeding Population

    1. Critical habitat units are depicted for St. Louis County, 
Minnesota; Douglas, Ashland, Marinette, Oconto, and Manitowoc 
Counties, Wisconsin; Lake County, Illinois; Porter County, Indiana; 
Erie and Lake Counties, Ohio; Erie County, Pennsylvania; Oswego and 
Jefferson Counties, New York; and Alger, Schoolcraft, Luce, 
Mackinac, Chippewa, Iosco, Presque Isle, Cheboygan, Emmet, 
Charlevoix, Leelanau, Benzie, Mason, and Muskegon Counties, 
Michigan, on the maps below.
    2. The primary constituent elements required to sustain the 
Great Lakes breeding population of the piping plover are found on 
Great Lakes islands and mainland shorelines that support, or have 
the potential to support, open, sparsely vegetated sandy habitats--
sand spits or sand beaches associated with wide, unforested systems 
of dunes and inter-dune wetlands. In order for habitat to be 
physically and biologically suitable for piping plovers, it must 
have a total shoreline length of at least 0.2 kilometers (km) (0.12 
miles (mi)) of gently sloping, sparsely vegetated (less than 50 
percent herbaceous and low woody cover) sand beach with a total 
beach area of at least 2 hectares (5 acres) and a low level of 
disturbance from human activities and from domestic animals. These 
appropriately sized sites must also have areas of at least 50-100 
meters (m) (165-330 feet (ft)) in length where (1) the beach width 
is more than 7 m (23 ft), (2) there is cover for nests and chicks, 
and (3) the distance to the treeline (from the normal high water 
line to where the forest begins) is more than 50 m (165 ft). Beach 
width is defined as the distance from the normal high water line to 
the foredune (a low barrier dune ridge immediately inland from the 
beach) edge or sand/vegetation boundary in areas where the dune is 
absent. The beach width may be narrower than 7 m (23 ft) if 
appropriate sand and cobble areas of at least 7 m (23 ft) exist 
between the dune and the treeline. Protective cover for nests and 
chicks consists of small patches of herbaceous vegetation, cobble 
(stones larger than 1 cm (0.39 inches (in)) diameter), gravel 
(stones smaller than 1 cm (0.39 in) diameter), or debris such as 
driftwood, wrack, root masses, or dead shrubs.
    3. Critical habitat does not include existing developed sites 
consisting of buildings, marinas, paved areas, boat ramps, and 
similar structures.
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    Dated: June 28, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-16815 Filed 6-30-00; 9:00 am]
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