[Federal Register Volume 66, Number 88 (Monday, May 7, 2001)]
[Rules and Regulations]
[Pages 22938-22969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11205]


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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; Final 
Determination of Critical Habitat for the Great Lakes Breeding 
Population of the Piping Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat pursuant to the Endangered Species Act (Act) of 1973, 
as amended for the Great Lakes breeding population of the piping 
plover. The Great Lakes breeding population of the piping plover is 
listed as an endangered species under the Act. A total of approximately 
325 km (201 mi) of Great Lakes shoreline (extending 500 m (1640 ft) 
inland) in 26 counties in Minnesota, Wisconsin, Michigan, Illinois, 
Indiana, Ohio, Pennsylvania, and New York, is designated as critical 
habitat for the Great Lakes population of the piping plover. The total 
length of designated shoreline is divided among 35 separate critical 
habitat units.
    Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify critical habitat. As required by section 4 of the Act, 
we considered economic and other relevant impacts prior to making a 
final decision on what areas to designate as critical habitat.

EFFECTIVE DATE: This final rule is effective June 6, 2001.

ADDRESSES: The complete administrative record for this rule, including 
comments and materials received, as well as supporting documentation 
used in the preparation of this final rule, will be available for 
public inspection, by appointment, during normal business hours at the 
U.S. Fish and Wildlife Service, Bishop Henry Whipple Federal Building, 
1 Federal Drive, Fort Snelling, MN 55111.

FOR FURTHER INFORMATION CONTACT: Laura J. Ragan at the above address 
(telephone 612/713-5157; facsimile 612/713-5292). TTY users may contact 
us through the Federal Relay Service at 1-800-877-8339.

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 the sandy beach, its primary habitat. Plumage and leg 
color help distinguish this bird from other plover species. During the 
breeding season, the legs are bright

[[Page 22939]]

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 bands on the 
head and neck are 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 (USFWS 1994).
    Dominant plants within Great Lakes piping plover habitat 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 (Arctostaphylus uva-ursi), creeping juniper (Juniper 
horizontalis), cottonwood (Populus deltoides), and willow (Salix spp.).
    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 extends from 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 in this population are in the 
Dakotas, Nebraska, and Montana (USFWS 1994). Occasionally, Great Plains 
birds nest in Oklahoma and Kansas. On the Atlantic coast, piping 
plovers nest from Newfoundland, southeastern Quebec, and New Brunswick 
to North Carolina. Sixty-eight percent of all nesting pairs breed in 
Massachusetts, New York, New Jersey, and Virginia (USFWS 1999). In the 
Great Lakes watershed, piping plovers formerly nested throughout much 
of the north-central United States and south-central Canada on beaches 
in Illinois, Indiana, Michigan, Minnesota, Ohio, Pennsylvania, New 
York, Wisconsin, and in Ontario, Canada. Currently they are limited to 
northern Michigan and, recently, at one site in northern Wisconsin.
    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 eight 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 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.
    Pre-settlement populations of piping plovers in the Great Lakes are 
estimated at 492-682 breeding pairs (Russell 1983), although these 
estimates may be high (F. Cuthbert, professor, University of Minnesota, 
Minneapolis, pers. comm., 2000). In recent decades, piping plover 
populations have declined drastically, especially in the Great Lakes, 
coinciding with industrial development, urbanization, and increased 
recreational pressures. 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 beaches in Illinois, 
Indiana, Ohio, New York, Pennsylvania, and Ontario, and only a few 
birds were continuing to nest in Wisconsin (Russell, 1983). By 1977, 
the Great Lakes breeding population had decreased to 31 nesting pairs 
(Lambert and Ratcliff 1981) and by the time the species was listed 
under the Endangered Species Act in 1985, the Great Lakes breeding 
population had dwindled to only 17 breeding pairs, and the breeding 
areas had been reduced from sites in eight States to only portions of 
northern Michigan.
    Since the species was listed, the Great Lakes breeding population 
has gradually increased and expanded its range within Michigan and into 
Wisconsin. In 1999, 31 pairs of piping plovers nested on the Great 
Lakes shoreline of northern Michigan and 1 pair nested in northern 
Wisconsin (Stucker and Cuthbert, 1999). In 2000, 30 pairs were 
documented, all in northern Michigan (Stucker et al. 2000). The slow 
population increase over the past 15 years has been 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.
    Great Lakes piping plovers nest on shoreline and island sandy 
beaches with sparse vegetation and the presence of small stones 
(greater than 1 cm (0.4 in.)) called cobble. Piping plovers spend 3 to 
4 months a year on the breeding grounds. Nesting in the Great Lakes 
region begins in early to mid-May. Plovers lay 3 to 4 eggs in a small 
depression they scrape in the sand among the cobblestones and are, 
therefore, very difficult to see. Both sexes are involved in incubating 
the eggs, which hatch in 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 (USFWS 
1994). Furthermore, adults may leave the nest to lure away an intruder, 
leaving the eggs or chicks vulnerable to predators and exposure to 
weather. Ultimately, disturbance may lead to the abandonment of nests 
(USFWS 1994). As a result of disturbance and other natural and human-
caused factors such as high water levels, flooding, eroding beaches, 
and beach-front commercial, recreational, and residential development, 
reproduction of Great Lakes piping plovers has been severely affected, 
resulting in perilously low numbers of nesting plovers (USFWS 1994).
    This rule 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. We included the piping plover in that review list 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 proposed rule 
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

[[Page 22940]]

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.
    After a review of the best scientific data available and all 
comments received in response to the proposed rule, we published the 
final rule (50 FR 50726) on December 11, 1985, listing the piping 
plover as endangered in the Great Lakes watershed (Illinois, Indiana, 
Michigan, northeastern Minnesota, New York, Ohio, Pennsylvania, 
Wisconsin, and Ontario, Canada) and as threatened along the Atlantic 
coast (Quebec, Newfoundland, Maritime Provinces, and States from Maine 
to Florida), and in the Northern Great Plains region (Iowa, 
northwestern Minnesota, Montana, Nebraska, North Dakota, South Dakota, 
Alberta, Manitoba, and Saskatchewan). All piping plovers on migratory 
routes outside of the Great Lakes watershed or on their wintering 
grounds are considered threatened. We did not designate critical 
habitat for the species at that time.
    After 1986, we focused our efforts on recovery by forming two 
recovery teams, the Great Lakes/Northern Great Plains Piping Plover 
Recovery Team and the Atlantic Coast Piping Plover Recovery Team. In 
1988 the Great Lakes and Northern Great Plains (USFWS 1988b) and 
Atlantic Coast (USFWS 1988a) Recovery Plans were published. In 1994, 
the Great Lakes/Northern Great Plains Recovery Team began to revise the 
Recovery plan for these two populations (USFWS 1994). The 1994 draft 
included updated information on the species and was distributed for 
public comment. Subsequently, we decided that the recovery of these two 
inland populations would benefit from separate recovery plans. 
Individual 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 designated critical habitat 
for the Great Lakes population of the piping plover. Defenders filed a 
similar suit (Defenders of Wildlife and Piping 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 
population of the piping plover by June 30, 2000, and for nesting and 
wintering areas of the Northern Great Plains piping plover population 
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 
published concurrently.
    On July 6, 2000, we published a proposed determination for the 
designation of critical habitat for the Great Lakes breeding population 
of the piping plover (65 FR 41812). A total of approximately 305 km 
(189 mi) (extending 1 km (0.6 mi) inland) was proposed as critical 
habitat for this piping plover population in 27 counties in Minnesota, 
Wisconsin, Michigan, Illinois, Indiana, Ohio, Pennsylvania, and New 
York. The comment period was open until September 5, 2000. During this 
60-day comment period, we held seven public hearings (Ashland, 
Wisconsin, on July 17; Green Bay, Wisconsin, on July 18; Newberry, 
Michigan, on July 19; Traverse City, Michigan, on July 20; Indiana 
Dunes, Indiana, on July 24; Cleveland, Ohio, on July 25; and Watertown, 
New York, on July 27). On September 19, 2000, we published a document 
(65 FR 56530) announcing the reopening of the comment period on the 
proposal to designate critical habitat for the Great Lakes breeding 
population of the piping plover and a notice of the availability of the 
draft economic analysis on the proposed determination. Our intention 
was for this comment period to be reopened for 60 days, but the 
document stated that the comment period closed on October 19, 2000, or 
30 days. Therefore, on September 28, 2000, we published a document (65 
FR 58258) correcting the closing date of the reopened comment period to 
November 20, 2000.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protections; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered or a threatened species to 
the point at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``. . . the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat. Critical habitat designation would not afford any additional 
protections under the Act against activities on private or other non-
Federal lands that do not involve a Federal nexus because the 
requirement for consultation under section 7 of the Act does not apply 
to activities on these types of lands.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, based on the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Within the geographic area occupied by the species, we will 
designate only

[[Page 22941]]

areas currently known to be essential. Essential areas should already 
have the features and habitat characteristics that are necessary to 
sustain the species (primary constituent elements). We will not 
speculate about what areas might be found to be essential if better 
information became available, or what other areas may become essential 
over time. If the information available at the time of designation does 
not show that an area provides essential life cycle needs of the 
species, then the area should not be included in the critical habitat 
designation. Within the geographic area occupied by the species, we 
will not designate areas that do not now have the primary constituent 
elements, as defined at 50 CFR 424.12(b), that provide essential life 
cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, unless the best scientific and commercial data 
demonstrates that the conservation needs of the species require 
designation of critical habitat outside of occupied areas, we will not 
designate critical habitat in areas outside the geographic area 
occupied by the species. However, if unoccupied areas are essential to 
the recovery of the species, they may be designated as critical 
habitat.
    The Service's policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e. gray 
literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, it should be understood that critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. Federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. Similarly, critical habitat designations made on the 
basis of the best available information at the time of designation will 
not control the direction and substance of future recovery plans, 
habitat conservation plans, or other species conservation planning 
efforts if new information available to these planning efforts calls 
for a different outcome.

Methods

    In determining areas that are essential to conserve the Great Lakes 
breeding population of the piping plover, the best scientific and 
commercial data available included information solicited from 
knowledgeable biologists and 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 1994 draft recovery plan as essential for the 
recovery of the population. We have chosen the 35 critical habitat 
units in order to protect adequate habitat to meet the recovery 
criteria, contained in the recovery plan and draft recovery plan, of 
100 breeding pairs in Michigan and 50 breeding pairs in the other Great 
Lakes States combined. In addition, information provided in comments on 
the proposed designation and draft economic analysis were evaluated and 
taken into consideration in the development of this final designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available. We also are required 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 features include, but are not 
limited to: space for individual and population growth, and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distributions of a species.
    The primary constituent elements for the Great Lakes breeding 
population of the piping plover are those habitat components that are 
essential for successful foraging, nesting, rearing of young, intra-
specific communication, genetic exchange, roosting, dispersal, or 
sheltering.
    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 open, sparsely vegetated 
sandy habitats, such as sand spits or sand beaches, that are 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)).
    Appropriately sized sites must also have areas of at least 50 
meters (m) (164 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 (164 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 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 (0.4 inches 
(in)) diameter), gravel (stones smaller than 1 cm (0.4 in)

[[Page 22942]]

diameter), or debris such as driftwood, wrack, root masses, or dead 
shrubs. These areas must have a low level of disturbance from human 
activities and from domestic animals. As the nesting season progresses, 
the level of disturbance tolerated by piping plovers increases. A lower 
level of disturbance is required at the beginning of the nesting period 
during nest site selection, egg laying, and incubation. Beach 
activities that may be associated with a high level of disturbance 
include, but are not limited to, walking pets off leash, loud noise, 
driving all terrain vehicles (ATVs), or activities that significantly 
increase the level of people using the beach. The level of disturbance 
is relative to the proximity to the nest, intensity, and frequency of 
these and other similar activities.
    The dynamic ecological processes that create and maintain piping 
plover habitat are also important primary constituent elements. These 
geologically dynamic lakeside regions are controlled by processes of 
erosion, accretion, plant succession, and lake-level fluctuations. The 
integrity of the habitat depends upon regular sediment transport 
processes, as well as episodic, high-magnitude storm events. By their 
nature, Great Lakes shorelines are in a constant state of change; 
habitat features may disappear, or be created nearby. The critical 
habitat boundaries reflect these natural processes and the dynamic 
character of Great Lakes shorelines.

Criteria Used To Identify Critical Habitat

    All of the designated 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 Draft Revised Recovery Plan for the Great Lakes Piping Plover. The 
designation encompasses those areas considered necessary to achieve the 
recovery goals of 150 breeding pairs (USFWS 1988b, 1994) for this 
population.
    To identify critical habitat units, we first examined those sites 
identified as ``essential habitat'' in the approved Recovery Plan and 
draft revised Recovery Plan. We began by evaluating those essential 
habitat areas that are currently (at least once during the past 5 
years) or were recently (in the last 5 to 15 years) occupied by piping 
plovers in the Great Lakes. Through site visits and consultation with 
local habitat experts, we determined which of these sites still contain 
the primary constituent elements. Piping plover occupied habitat in the 
Great Lakes has declined from historical occupation of more than 70 
sites in eight States to approximately 32 sites in two States (Wemmer 
2000). The currently occupied sites and recently occupied (since 1985) 
sites in Michigan may have the capacity to support an estimated 56 to 
136 breeding pairs (Wemmer 2000). Because of this severe reduction in 
range and numbers of piping plovers, we have determined it is essential 
to the conservation of this species to include all currently occupied 
habitat and all recently occupied habitat that still contains the 
primary constituent elements in this critical habitat designation.
    As we proceed with recovery efforts, expansion of the present small 
population will require more habitat than is currently occupied by 
piping plovers along the Great Lakes (Wemmer 2000, USFWS 1988b, 1994). 
In an effort to protect sufficient habitat to allow for the expansion 
of the species, our second step was to evaluate the essential habitat 
areas outlined in the Recovery Plan that are documented as historical 
piping plover habitat. In addition to evaluating those areas identified 
by the Recovery Plan as essential habitat, we solicited information 
from habitat experts on areas that contain the primary constituent 
elements and that would provide suitable piping plover nesting habitat. 
Based upon consultation with Great Lakes piping plover habitat experts, 
we determined which historically occupied sites contain the primary 
constituent elements and are suitable for supporting nesting piping 
plovers. We designated historically occupied habitat in the Great Lakes 
watershed (in the United States) that still contain the primary 
constituent elements.
    Much known historical habitat in the Great Lakes region has been 
destroyed or altered in such ways that it can no longer support piping 
plovers (Wemmer 2000, USFWS 1988b). As a result, suitable habitat areas 
that are currently/recently occupied, or that were documented to be 
historically occupied, are not sufficient to meet the conservation 
goals outlined in the approved Recovery Plan and draft revised Recovery 
Plan. Thus, as a final step, we evaluated those essential habitat areas 
identified in the Recovery Plan where occupation has not been 
documented, but habitat features similar to currently occupied sites 
occur. To reach the minimum amount of habitat sufficient to meet the 
recovery plan goals, we designated those areas that are known to 
contain the primary constituent elements as critical habitat. Critical 
habitat designation is effective year-round, even if the primary 
constituent elements are temporarily obscured by snow, ice, or other 
temporary features.
    In defining critical habitat boundaries, it was not possible to 
exclude all existing human-made features and structures, such as 
buildings, roads, marinas, piers, parking lots, bridges, boat ramps, 
lighthouses, and other such human-made features, within the area 
designated. These features do not contain most or all of the primary 
constituent elements and thus are not considered to be critical habitat 
despite their being within the geographic boundaries. Federal actions 
limited to those features, therefore, would not trigger a section 7 
consultation, unless they affect the species and/or primary constituent 
elements within a critical habitat unit.
    In summary, in determining areas that are essential to the 
conservation of the Great Lakes breeding population of the piping 
plover, we used the best scientific and commercial information 
available to us. The critical habitat areas described below constitute 
our best assessment of areas needed for the species' conservation and 
recovery.

Critical Habitat Designation

    At this time, the critical habitat units discussed below are our 
best appraisal 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, and all the areas 
identified here are essential for the recovery of the species because 
these areas represent the habitat necessary to achieve the recovery 
goal of 100 breeding pairs in Michigan and 50 breeding pairs in the 
other Great Lakes States combined. Critical habitat designations may be 
subsequently revised if new information becomes available after this 
final rule is published. Any additional areas of critical habitat will 
be designated, or other changes made to this designation, only after a 
formal proposal and opportunity for public comment.
    The approximate length of proposed critical habitat shoreline 
identified by land ownership is shown in Table 1. Critical habitat 
includes Great Lakes piping plover habitat throughout the species' 
breeding range in the United States. Lands proposed as critical habitat 
are under private, State, municipal, Tribal, and Federal ownership, 
with Federal lands including lands managed by the National Park 
Service, U.S. Forest Service, U.S. Coast Guard, U.S. Army

[[Page 22943]]

Corp of Engineers, and by us. Estimates reflect the total area within 
critical habitat unit boundaries.

   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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Ownership  km shoreline (% within each State)
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Federal                     State                    Municipal                   Private                     Other                    Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Michigan..........................  40.9 (18.3)                 107.9 (48.1)               6.9 (3.1)                  66.1 (29.1)                1.6 TNC (0.7)                             223.4
Minnesota.........................  0                           0.2 (100)                  0                          0                          0                                           0.2
Wisconsin.........................  18.1 (40.0)                 8.7 (19.2)                 4.4 (9.7)                  9.0 (19.9)                 5.1 Tribal (11.2)                          45.3
Illinois..........................  0                           4.7 (46.1)                 1.3 (12.7)                 4.2 (41.2)                 0                                          10.2
Indiana...........................  2.9 (36.7)                  5.0 (63.3)                 0                          0                          0                                           7.9
Ohio..............................  0                           2.0 (50)                   0                          2.0 (50)                   0                                           4.0
Pennsylvania......................  0                           6.0 (100)                  0                          0                          0                                           6.0
New York..........................  0                           12.4 (45.3)                0                          14.6 (53.3)                0.4 TNC (1.5)                              27.4
                                   -------------------------------------------------------------------------------------------------------------------------------------------------------------
    Total (% of)..................  61.9 (19.1)                 146.9 (45.2)               12.6 (3.9)                 95.9 (29.5)                7.1 (2.2)                                 324.4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Critical habitat has been designated in 35 units in the Great Lakes 
region. All critical habitat unit boundaries extend 500 meters (1640 
feet) inland from the normal high water line, although the inland edge 
of 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 incorporate cobble pans between the 
dunes where piping plovers occasionally nest. A brief description of 
each unit and reasons for designating it as critical habitat are 
presented below and in Table 2. More detailed descriptions are included 
with the maps.

   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.
            Habit unit                 Location name            County           map(s)  1:24,000     Land ownership \1\     Plover use \2\      length
                                                                                       scale                                                      (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Whitefish Point to Grand Marais--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-1.............................  Whitefish Point.....  Chippewa............  Whitefish Point       Federal (USFWS),     Recent past,               2.5
                                                                                (1951).               private.             transient.
                                   Vermilion/            Luce................  Vermilion (1951)....  Private............  Current............        2.3
                                    Weatherhogs Beach.
                                   Crisp Point.........  Luce................  Betsy Lake North      Municipal private..  Recent past........        1.0
                                                                                (1968).
                                   Little Lake Harbor..  Luce................  Betsy Lake North      Private............  Recent past........        1.6
                                                                                (1968).
                                   Deer Park...........  Luce................  Muskallonge Lake      State, private.....  Recent past........        2.8
                                                                                East (1968);
                                                                                Muskallonge Lake
                                                                                West (1968).
                                   Grand Marais Inner    Alger...............  Grand Marais (1968).  Multiple private,    Current............        2.9
                                    Harbor and Lonesome                                               municipal.
                                    Point.
                                   Grand Marais          Alger...............  Grand Marais (1968).  Multiple private,    Current............        1.2
                                    Superior Beach.                                                   Federal (NPS).
MI-2.............................  Point Aux Chenes....  Mackinac............  Pointe Aux Chenes     Federal (USFS),      Current............        2.0
                                                                                (1964, photorevised   private.
                                                                                1975).
MI-3.............................  Port Inland.........  Schoolcraft Mackinac  Hughes Point (1972).  Private/State......  Current............        3.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Waugoshance Point to beach west of McCort Hill--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-4.............................  Waugoshance Point     Emmet...............  Big Stone Bay (1964,  State..............  Current............        5.0
                                    Temperance and                              photoinspected
                                    Crane Islands.                              1975), Waugoshance
                                                                                Island (provisional
                                                                                1982).
                                   Sturgeon Bay........  Emmet...............  Bliss (1982)........  State..............  Current............        3.9
                                   Bliss Township Park.  Emmet...............  Bliss (1982)........  Municipal..........  Current............        1.1
                                   Sturgeon Bay Point..  Emmet...............  Bliss (1982) Cross    Multiple private...  Current............        2.4
                                                                                Village (1982).

[[Page 22944]]

 
                                   Cross Village Beach.  Emmet...............  Cross Village (1982)  Municipal, multiple  Current............        1.3
                                                                                                      private.
                                   Beach West McCort     Emmet...............  Cross Village (1982)  Multiple private...  Current............        1.4
                                    Hill.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Sevenmile Point to Thorneswift Nature Preserve--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-5.............................  Sevenmile Point.....  Emmet...............  Forest Beach (1983    Multiple private...  Suitable...........        0.5
                                                                                provisional).
                                   Thorneswift Nature    Emmet...............  Forest Beach (1983    Multiple private...  Current............        0.4
                                    Preserve.                                   provisional).
MI-6.............................  Petoskey State Park.  Emmet...............  Harbor Springs (1983  State, private.....  Historical.........        2.0
                                                                                provisional).
MI-7.............................  North Point.........  Charlevoix..........  Ironton (1983),       Municipal..........  Suitable...........        1.1
                                                                                Charlevoix (1983).
MI-8.............................  Fisherman's Island    Charlevoix..........  Charlevoix (1983)...  State..............  Current............        1.3
                                    State Park.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Indian Point to McCauley's Point, Beaver Island--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-9.............................  Donegal Bay-Beaver    Charlevoix..........  Garden Island West    Multiple private...  Current............        2.0
                                    Island.                                     (1980), Beaver
                                                                                Island North (1986).
                                   McCauley's Point-     Charlevoix..........  Beaver Island North   State..............  Recent past........        0.6
                                    Beaver Island.                              (1986).
MI-10............................  Greenes Bay-Beaver    Charlevoix..........  Beaver Island North   State/private......  Recent past........        0.8
                                    Island.                                     (1986).
MI-11............................  High Island.........  Charlevoix..........  High Island (1986)..  State..............  Current............        1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Cathead Bay to Christmas Cove--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-12............................  Cathead Bay.........  Leelanau............  Northport             State/private......  Current............        2.6
                                                                                (provisional 1983).
                                   Cathead Point to      Leelanau............  Northport/Northport   Private............  Suitable...........        2.5
                                    Christmas Cove.                             NW (provisional
                                                                                1983).
MI-13............................  South Fox Island....  Leelanau............  South Fox Island      State..............  Historical.........        6.0
                                                                                (provisional 1986).
MI-14............................  North Manitou.......  Leelanau............  North Manitou Island  Federal (NPS)......  Current............        3.3
                                                                                (provisional 1983).
MI-15............................  Crystal Run to        Leelanau............  Glen Arbor (1983),    Municipal, Federal.  Suitable...........       18.6
                                    Empire Beach.                               Glen Haven (1983),
                                                                                Empire (1983).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Esch Road to Sutter Road and Point Betsie--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-16............................  Platte Bay and        Benzie..............  Empire (1983),        Federal (NPS)......  Suitable/current...       13.8
                                    Platte River Point                          Beulah (provisional
                                    and beach.                                  1983).
                                   Point Betsie........  Benzie..............  Frankfort (1983)....  Federal (USCG) TNC   Historical.........        4.8
                                                                                                      managed, private.
MI-17............................  Nordhouse Dunes to    Mason...............  Manistee NW           Federal (USFS),      Transient,                13.4
                                    Ludington.                                  (provisional 1982),   State.               historical.
                                                                                Hamlin Lake (1982).
MI-18............................  Muskegon State Park.  Muskegon............  Muskegon West (1972,  State..............  Historical.........        2.5
                                                                                photoinspected
                                                                                1980).
MI-19............................  Lake Superior State   Chippewa............  Albany Island (1964,  State..............  Historical.........        3.0
                                    Forest, St. Vital                           photoinspected
                                    Point.                                      1976), DeTour
                                                                                Village (1964).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Lighthouse Point to Cordwood Point--
--------------------------------------------------------------------------------------------------------------------------------------------------------
MI-20............................  Lighthouse Point....  Cheboygan...........  Cheboygan (1982)....  State..............  Recent past........        1.4
                                   Grass Bay...........  Cheboygan...........  Cordwood Point        TNC preserve.......  Historical                 1.6
                                                                                (1982).                                    transient.

[[Page 22945]]

 
MI-21............................  PH Hoeft State Park.  Pesque Isle.........  Roger's City (1971),  State..............  Suitable...........        3.7
                                                                                Moltke (1971).
MI-22............................  Thompson's Harbor...  Presque Isle........  Thompson's Harbor     State, private.....  Suitable...........        2.8
                                                                                (1971).
MI-23............................  Tawas Point State     Iosco...............  East Tawas (1989)...  State..............  Suitable, transient        2.0
                                    Park.
MN/WI-1..........................  Duluth Harbor.......  St. Louis...........  West Duluth (1953,    State, private.....  Recent past........        0.6
                                                                                photorevised 1969).
WI-1.............................  Wisconsin Point.....  Douglas.............  Parkland (1954,       Municipal, Federal   Historical.........        4.0
                                                                                photorevised 1975),   (USACE).
                                                                                Superior (1954,
                                                                                photorevised 1983).
WI-2.............................  Long Island-          Ashland.............  Cedar (1964,          Federal (NPS)        Current............       25.3
                                    Chequamegon Pt.                             photorevised 1975),   tribal (Bad
                                                                                Chequamegon Point     River), private.
                                                                                (1964, photorevised
                                                                                1975), Long Island
                                                                                (1964).
WI-3.............................  Western Michigan      Ashland.............  Michigan Island       Federal (NPS)......  Suitable...........        6.5
                                    Island.                                     (1963).
WI-4.............................  Seagull Bar.........  Marinette...........  Marinette East        State, municipal...  Suitable...........        1.5
                                                                                (1963, photorevised
                                                                                1969).
WI-5.............................  Point Beach State     Manitowoc...........  Two Rivers (1978)...  State..............  Suitable...........        8.0
                                    Forest.
IL-1.............................  Illinois Beach State  Lake................  Zion, Ill. (1993),    Municipal, State,    Historical.........       10.2
                                    Park to Waukegan                            Waukegan (1993).      private.
                                    Beach.
IN-1.............................  Indiana Dunes         Porter..............  Ogden Dunes (1991),   Federal (NPS),       Historical,                7.9
                                    National Lakeshore/                         Dunes Acres (1991).   State.               transient.
                                    Indiana Dunes State
                                    Park.
OH-1.............................  Sheldon Marsh.......  Erie................  Huron (1969),         State, private.....  Transient..........        3.2
                                                                                Sandusky (1969,
                                                                                photorevised 1975).
OH-2.............................  Headlands Dunes.....  Lake................  Mentor (1963,         State..............  Historical/suitable        0.8
                                                                                revised 1992).
PA-1.............................  Presque Isle State    Erie................  Erie North (1957,     State..............  Historical,                6.0
                                    Park.                                       revised 1969 and                           transient.
                                                                                1975,
                                                                                photoinspected
                                                                                1977).
NY-1.............................  Salmon River to       Oswego, Jefferson...  Pulaski (1956),       State, multiple      Historical.........       27.4
                                    Stony Point.                                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; recent past = used for nesting since 1985; historical = used for nesting prior to 1985; transient = recent
  (since 1990) sightings of piping plovers; suitable = no known record of use but habitat appears suitable for nesting and is within the historic range
  of piping plover.

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 
just southwest of Whitefish Point, around and including the Point, and 
westward to the Pictured Rocks National Lakeshore property boundary, 
excluding the area from the junction of Highway 58 and Morris Road to 
the breakwall north of the harbor near the former Coast Guard station 
in Grand Marais.

Unit MI-2: Pointe Aux Chenes

    This unit encompasses approximately 1.7 km (1.1 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

[[Page 22946]]

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 
designated 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.

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 
in Wilderness State Park, including Waugoshance and Temperance Islands, 
to the southwest boundary of T37N R6W section 5 south of Cross Village.

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 suitable 
piping plover nesting habitat and areas that are currently occupied by 
piping plovers. The entire designated area is under private ownership. 
It extends from the junction of the Lake Michigan shoreline and the 
northwest boundary of T36N R6W section 30 to the junction of the 
shoreline and the southeast corner of T35N R6W 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 
suitable piping plover nesting habitat. The entire designated 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 designated 
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, including 
Fisherman Island.

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 southward 
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 encompasses Greenes Bay on the western side of 
Beaver Island.

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 designated area is part of the Beaver Islands State Wildlife 
Research Area. This unit includes all Lake Michigan shoreline within 
T39N R11W section 32 and T38N R11W section 5 on the western side of the 
island and within T39N R11W section 27 on the northeastern corner of 
the island.

Unit MI-12: Cathead Bay to Christmas Cove

    This unit encompasses approximately 5.1 km (3.2 mi) of Lake 
Michigan shoreline in Leelanau County, Michigan. It includes areas that 
are currently occupied by piping plovers and areas of suitable piping 
plover nesting habitat. Approximately 1.9 km (1.2 mi) are part of 
Leelanau State Park, and the remaining 3.2 km (2.0 mi) are privately 
owned land. This unit extends from the northwest end of Cathead Bay 
southward to just north of Christmas Cove, excluding lands of the Magic 
Carpet Woods Association HCP.

Unit MI-13: South Fox Island

    This unit encompasses approximately 6 km (3.8 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 
designated 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 on the south end of the island and within T35N 
R13W section 30 on the north end of the island.

Unit MI-14: North and South Manitou Islands

    This unit encompasses approximately 3.3 km (2.1 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 designated area is part of Sleeping Bear Dunes 
National Lakeshore. This unit includes Dimmick's Point and Donner's 
Point on the southern end of North Manitou Island.

Unit MI-15: Crystal Run to Empire Beach

    This unit encompasses approximately 18.6 km (11.6 mi) of Lake 
Michigan shoreline in Leelanau County, Michigan. It includes areas of 
suitable piping plover nesting habitat. Approximately 4.8 km (3.0 mi) 
are municipal beach in Glen Arbor Township, and the remaining 13.8 km 
(8.6 mi) are part of Sleeping Bear Dunes National Lakeshore. This unit 
extends from Crystal Run to the southern

[[Page 22947]]

Sleeping Bear Dunes National Lakeshore property boundary.

Unit MI-16: Esch Road to Sutter Road and Point Betsie

    This unit encompasses approximately 18.6 km (11.6 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 suitable piping plover nesting habitat. The 
majority of the unit (13.8 km (8.6 mi)) is part of Sleeping Bear Dunes 
National Lakeshore, 3.8 km (2.4 mi) are private land, 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 the Sleeping Bear Dunes National Lakeshore property 
boundary at Sutter Road. The unit then continues from the Point Betsie 
Natural Area northern property boundary south to include all shoreline 
within 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 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 designated 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 designated 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 5.2 km (3.3 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 near Lighthouse Point to just west of Cordwood 
Point.

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 
suitable piping plover nesting habitat. The entire designated area is 
part of P.H. Hoeft State Park. This unit includes Lake Huron shoreline 
within T35N R5E section 6 northwestward 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 
suitable piping plover nesting habitat. Most of this designated 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 suitable nesting habitat. The 
entire designated area is part of Tawas Point State Park. This unit 
extends from the Tawas Sate Park boundary on the east side of Tawas 
Point including all shoreline within T22N R8E section 34 and offshore 
sand spits.

Minnesota/Wisconsin

Unit MN/WI-1: Interstate Island

    This unit encompasses approximately 0.6 km (0.4 mi) of Lake 
Superior shoreline on Interstate Island in St. Louis County, Minnesota 
and Douglas County, Wisconsin. Although piping plover nesting has not 
been documented on this island, it contains viable piping plover 
habitat. 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 is comprised of Interstate 
Island.

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. Approximately 0.4 km (0.2 
mi) of the unit is Army Corps of Engineers land. The rest of the 
designated 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 25.3 km (15.7 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 11.2 km (6.9 mi) are part of the Apostle 
Islands National Lakeshore, approximately 9.0 km (5.6 mi) are private 
land, and the remaining 5.1 km (3.2 mi) are Tribal lands belonging to 
the Bad River Band of Lake Superior Tribe of Chippewa Indians. This 
unit extends from the base of Chequamegon Point (where it meets the 
mainland) 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 suitable piping plover nesting habitat. The entire designated 
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 
suitable piping plover nesting habitat. About one

[[Page 22948]]

half of the unit is State owned and the other half is municipal 
property owned by the city of Marinette. 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: Point Beach State Forest

    This unit encompasses approximately 8 km (5 mi) of Lake Michigan 
shoreline in Manitowoc County, Wisconsin. It includes areas of suitable 
piping plover nesting habitat. The entire designated 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 and 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 southward to the 
northernWaukegan Beach breakwall at North Beach Park, excluding the 
public beach and campground to just south of the Illinois Beach State 
Park Lodge and Conference Center.

Indiana

Unit IN-1: Indiana Dunes National Lakeshore and Indiana Dunes State 
Park Beaches

    This unit encompasses approximately 7.9 km (4.9 mi) of Lake 
Michigan shoreline in Porter County, Indiana. It includes areas that 
were historically occupied by piping plovers. 5 km (3.1 mi) are part of 
Indiana Dunes State Park and the remaining 2.9 km (1.8 mi) are part of 
Indiana Dunes National Lakeshore. This unit extends from the western 
boundary of the Cowels Bog/Dune Acres Unit, east of the Port of Indiana 
and the NIPSCO Baily Generating Station and 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 foraging areas for 
transient piping plovers and suitable 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 historical nesting habitat 
and areas of suitable piping plover nesting habitat. The entire 
designated 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 6.0 km (3.7 mi) of Lake Erie 
shoreline in Erie County, Pennsylvania. It includes foraging areas for 
transient piping plovers and areas that were historically used for 
nesting. The entire unit is part of the Presque Isle State Park. This 
unit extends from the lighthouse north of Peninsula Drive on the north 
side of Presque Isle to the southern terminus of the hiking trail on 
the southeast side of Gull Point. 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, including 
the Service, to ensure that actions they fund, authorize, or carry out 
do not destroy or adversely modify critical habitat to the extent that 
the action appreciably diminishes the value of the critical habitat for 
the survival and recovery of the species. 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. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. 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 (action agency) must consult with us. Through this 
consultation we would ensure that the permitted actions do not destroy 
or adversely modify critical habitat.
    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 destruction or adverse modification of 
critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to

[[Page 22949]]

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 with us on actions for which formal consultation has been 
completed, if those actions may affect designated critical habitat. 
Further, some Federal agencies may have conferenced with us on proposed 
critical habitat. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
significant new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the piping plover or 
its critical habitat will require section 7 consultation. Activities on 
private, State or Tribal lands requiring a permit from the U.S. Army 
Corps of Engineers (Army Corps) under section 404 of the Clean Water 
Act, or some other Federal action, including funding (e.g from the 
Federal Highway Administration, Environmental Protection Agency, or 
Federal Emergency Management Agency) will also continue to be subject 
to the section 7 consultation process. Federal actions not affecting 
listed species or critical habitat and actions on non-Federal lands 
that are not federally funded or permitted do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action 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. We 
note that such activities may also jeopardize the continued existence 
of the species.
    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, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned when the area of the proposed action is occupied by the 
species. In those cases, it is highly unlikely that additional 
modifications to the action would be required as a result of 
designating critical habitat. However, critical habitat may provide 
benefits toward recovery when designated in areas unoccupied by the 
species.
    Designation of critical habitat could affect Federal agency 
activities. Federal agencies already consult with us on activities that 
may affect the species to ensure that their actions do not jeopardize 
the continued existence of the species. These actions include, but are 
not limited to: (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; (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; (8) oil and other hazardous material spills and cleanup; and 
(9) stormwater and wastewater discharge from communities. Additionally, 
public access may be temporarily or seasonally restricted on beaches 
under Federal ownership or jurisdiction to reduce disturbance so that 
piping plovers in search of suitable nesting sites could utilize them. 
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.
    This section serves in part as a general guide to clarify 
activities that may affect or destroy or adversely modify critical 
habitat. However, specific Federal actions should be reviewed by the 
action agency. If the agency determines the activity may affect 
critical habitat, they will consult with us under section 7 of the Act. 
We will work with the agencies and affected public early in the 
consultation process to avoid or minimize potential conflicts and, 
whenever possible, find a solution that protects listed species and 
their habitat while allowing the action to go forward in a manner 
consistent with its intended purpose.

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
the extinction of the species. For the following reasons, we believe 
that in most instances the benefits of excluding areas covered by 
approved Habitat Conservation Plans (HCPs) from critical habitat 
designations will outweigh the benefits of including them.

(1) Benefits of Inclusion

    The benefits of including HCP lands in critical habitat are 
normally small. The principal benefit of any designated critical 
habitat is that Federal activities in such habitat that may affect it 
require consultation under section 7 of the Act. Such consultation 
would ensure that adequate protection is provided to avoid adverse 
modification of critical habitat. Where HCPs are in place, our 
experience indicates that this benefit is small or non-existent. 
Currently approved and permitted HCPs are already designed to ensure 
the long-term survival of covered species within the plan area. Where 
we have an approved HCP, lands that we ordinarily would define as 
critical habitat for the covered species will normally be protected in 
reserves and other conservation lands by the terms of the HCP and its 
implementation agreements. The HCP and implementation agreements 
include management measures and protections for conservation lands that 
are crafted to protect, restore, and enhance their value as habitat for 
covered species.
    In addition, a 10(a)(1)(B) permit issued by us as a result of an 
HCP application must itself undergo

[[Page 22950]]

consultation. While this consultation may not look specifically at the 
issue of adverse modification of critical habitat, it will look at the 
very similar concept of jeopardy to the listed species in the plan 
area. Since HCPs, particularly large regional HCPs, address land use 
within the plan boundaries, habitat issues within the plan boundaries 
will have been thoroughly addressed in the HCP and the consultation on 
the HCP. Our experience is also that, under most circumstances, 
consultations under the jeopardy standard will reach the same result as 
consultations under the adverse modification standard. Implementing 
regulations (50 CFR Part 402) define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
virtually identical terms. Jeopardize the continued existence of means 
to engage in an action ``that reasonably would be expected to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species.'' Destruction or adverse modification means an 
``alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus, actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species concerned, and the existence of a 
critical habitat designation does not materially affect the outcome of 
consultation. Additional measures to protect the habitat from adverse 
modification are not likely to be required.
    Further, HCPs typically provide for greater conservation benefits 
to a covered species than section 7 consultations because HCPs assure 
the long term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5-Point Policy for HCPs (64 FR 35242) and the HCP No Surprises 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations which, in contrast to HCPs, often do not commit 
the project proponent to long term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits an HCP provides.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for development. The educational benefits of critical 
habitat, including informing the public of areas that are important for 
the long-term survival and conservation of the species, are essentially 
the same as those that would occur from the public notice and comment 
procedures required to establish an HCP, as well as the public 
participation that occurs in the development of many regional HCPs. For 
these reasons, then, we believe that designation of critical habitat 
has little benefit in areas covered by HCPs.

(2) Benefits of Exclusion

    The benefits of excluding HCPs from being designated as critical 
habitat may be more significant. During two public comment periods on 
our critical habitat policy, we received several comments about the 
additional regulatory and economic burden of designating critical 
habitat. These include the need for additional consultation with the 
Service and the need for additional surveys and information gathering 
to complete these consultations. HCP applicants have also stated that 
they are concerned that third parties may challenge HCPs on the basis 
that they result in adverse modification or destruction of critical 
habitat, should critical habitat be designated within the HCP 
boundaries.
    The benefits of excluding HCPs include relieving landowners, 
communities and counties of any additional minor regulatory review that 
might be imposed by critical habitat. Many HCPs, particularly large 
regional HCPs, take many years to develop and, upon completion, become 
regional conservation plans that are consistent with the recovery of 
covered species. Many of these regional plans benefit many species, 
both listed and unlisted. Imposing an additional regulatory review 
after HCP completion may jeopardize conservation efforts and 
partnerships in many areas and could be viewed as a disincentive to 
those developing HCPs. Excluding HCPs provides us with an opportunity 
to streamline regulatory compliance and confirms regulatory assurances 
for HCP participants.
    A related benefit of excluding HCPs is that it would encourage the 
continued development of partnerships with HCP participants, including 
States, local governments, conservation organizations, and private 
landowners, that together can implement conservation actions we would 
be unable to accomplish alone. By excluding areas covered by HCPs from 
critical habitat designation, we preserve these partnerships, and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In general, we believe the benefits of critical habitat designation 
to be small in areas covered by approved HCPs. We also believe that the 
benefits of excluding HCPs from designation are significant. Weighing 
the small benefits of inclusion against the benefits of exclusion, 
including the benefits of relieving property owners of an additional 
layer of approvals and regulation, together with the encouragement of 
conservation partnerships, would generally result in HCPs being 
excluded from critical habitat designation under Section 4(b)(2) of the 
Act.
    Not all HCPs are alike with regard to species coverage and design. 
Within this general analytical framework, we need to individually 
evaluate completed and legally operative HCPs in the range of the Great 
Lakes breeding population of the piping plover to determine whether the 
benefits of excluding these particular areas outweigh the benefits of 
including them.
    Presently, one approved HCP exists for the piping plover in the 
Great Lakes region. The Magic Carpet Woods Association HCP covers 
approximately 792 meters (2,600 feet) of shoreline within the proposed 
Cathead Bay critical habitat unit in Leelanau County, Michigan. This 
plan addresses the piping plover as a covered species and provides 
conservation management and protection for the species. We evaluated 
this plan and determined that the conservation management measures and 
protection afforded the piping plover are sufficient to assure its 
conservation on the involved lands. Consequently, we have determined 
that the benefits of excluding this area outweigh the benefits of 
inclusion, and have excluded the area covered by the HCP from the fixed 
critical habitat designation.
    In the event that future HCPs covering the Great Lakes breeding 
population of the piping plover are developed within the boundaries of 
designated critical habitat, we will work with applicants to ensure 
that the HCPs provide for protection and management of habitat areas 
essential for the conservation of the piping plover by either directing 
development and habitat modification to nonessential areas or 
appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. 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

[[Page 22951]]

us to conduct detailed evaluations of the importance of such lands to 
the long term survival of the species.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the piping plover and 
appropriate management for those lands. The take minimization and 
mitigation measures provided under these HCPs are expected to protect 
the essential habitat lands designated as critical habitat in this 
rule. If an HCP that addresses the piping plover as a covered species 
is ultimately approved, the Service will reassess the critical habitat 
boundaries in light of the HCP. The Service will seek to undertake this 
review when the HCP is approved, but funding constraints may influence 
the timing of such a review.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this final designation accordingly.
    Similarly, if new information indicates any of these areas should 
not be included in the critical habitat designation because they no 
longer meet the definition of critical habitat, we may revise this 
final critical habitat designation. If, consistent with available 
funding and program priorities, we elect to revise this designation, we 
will do so through a subsequent rulemaking.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, or requests for 
copies of the regulations on listed wildlife and inquiries about 
prohibitions and permits contact the U.S. Fish and Wildlife Service 
(see addresses section).

Summary of Comments and Recommendations

    In the July 6, 2000, proposed rule (65 FR 41812), we requested all 
interested parties to submit comments on the specifics of the proposal 
including information, policy, treatments of HCPs, and proposed 
critical habitat boundaries as provided in the proposed rule. The first 
comment period closed on September 5, 2000. The comment period was 
reopened for 30 days, from September 19 to October 20, 2000 (65 FR 
56530), to allow for additional comments on the proposed rule and 
comments on the draft economic analysis of the proposed critical 
habitat. Since our intention was to reopen the comment period for 60 
days, we published a correction on September 28, 2000 (65 FR 58258), 
correcting the closing date of the reopened comment period to November 
20, 2000. Comments received from July 6 to November 20, 2000, were 
entered into the administrative record.
    We contacted all appropriate State and Federal agencies, Tribes, 
County governments, elected officials, and other interested parties and 
invited them to comment. In addition, we invited public comments 
through the publication of notices in newspapers in Minnesota, 
Wisconsin, Michigan, Illinois, Indiana, Ohio, Pennsylvania, and New 
York. In these notices and the proposed rule, we announced the dates 
and times of seven public hearings to be held on the proposed rule. 
Their dates and locations are specified above in the section ``Previous 
Federal Actions''. Transcripts of these hearings are available for 
inspection (see addresses section). We posted copies of the proposed 
rule and draft economic analysis on our internet site (http://midwest.fws.gov/).
    We requested three ornithologists and conservation biologists, who 
have familiarity with the piping plover and its habitat requirements, 
to peer review the proposed critical habitat designation. All three 
responded by the close of the comment period. They provided valuable 
information about the biology, status, and historical range of the 
species, and suggested removing some areas from the critical habitat 
designation that no longer meet the criteria of piping plover critical 
habitat and provided data on other areas that may deserve critical 
habitat designation at a later date. These comments are addressed in 
this section, and relevant data provided by the reviewers have been 
incorporated throughout the rule.
    We received a total of 140 written and 36 oral comments during the 
2 public comment periods. Several people submitted comments more than 
once. In total, oral and written comments were received from 7 Federal 
agencies, 14 State agencies, 5 Tribal representatives, 3 elected 
officials, 10 local governments, 31 private organizations, and 97 
private individuals. Comments were received from residents in 13 
States, with Michigan sources submitting the most of any one State. All 
comments received were reviewed for substantive issues and new data 
regarding critical habitat and the biology and status of the Great 
Lakes breeding population of the piping plover, and economic 
information. We address all relevant comments received during the 
comment periods and public hearing testimonies in the following summary 
of issues. Comments of a similar nature are grouped into a single 
issue. Comments that we incorporated into this final rule are discussed 
in the ``Summary of Changes from Proposed Rule'' section of this 
document.

Issue 1: Biological Justification and Methodology

    The following comments and responses involve issues related to the 
biological basis for the designation.
    (1A) Comment: The broad scale of the proposed critical habitat 
includes areas that do not contain the primary constituent elements for 
the Great Lakes piping plover.
    Response: We recognize that not all parcels of land within 
designated critical habitat units will contain the habitat components 
essential to piping plover conservation. We are required to designate 
critical habitat based on the best available information and to 
describe critical habitat (50 CFR 424.12(c)) with specific limits using 
reference points and specific definable boundaries. In preparation of 
the final determination, we used information gathered during the public 
comment period to more accurately define the written critical habitat 
boundaries. Despite our efforts to exclude areas that do not contain 
the primary constituent elements for the piping plover from critical 
habitat unit boundaries, it is not practicable to develop unit 
boundaries and provide maps and legal descriptions that exclude all 
developed areas such as towns, housing developments, or other developed 
lands unlikely to provide for the piping plover. Because of the time 
constraints imposed by the Court, and the absence of detailed 
Geographic Information System (GIS) coverage we defined the critical 
habitat unit boundaries as specifically as practicable but, due to the 
mapping scale, some areas not essential to the conservation of the 
piping plover were included within the boundaries of proposed critical 
habitat. However, developed areas such as buildings, marinas, paved 
areas, boat ramps, piers, bridges, lighthouses, and similar human-made 
structures are not being designated as critical habitat.
    (1B) Comment: Designating critical habitat for the piping plover 
will result in such high public animosity that the designation will 
cause more harm to the species than benefit.
    Response: Public support is a vital asset in the protection of 
endangered species and their habitat, but, by law we must designate 
essential areas as critical habitat even if it will cause public 
backlash due to misconceptions about its impacts. In an effort to clear 
up misunderstandings about critical habitat and to increase public 
support for piping plovers, we are increasing our education and 
outreach programs.

[[Page 22952]]

    (1C) Comment: One person commented that there is a lack of data to 
support the proposed measures and no data to support that designating 
critical habitat will result in an increased piping plover population.
    Response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, in determining which areas to designate 
as critical habitat, we are basing this critical habitat determination 
on the best scientific and commercial data available at the time of 
designation. The designation indicates the areas that we believe are 
essential to the conservation of the species. Designation of critical 
habitat is only one tool to use towards the recovery of the piping 
plover, and we will continue to work with other Federal agencies, State 
and local agencies, Tribes, the scientific community, local landowners, 
and the public to eliminate and reduce the range of threats that 
endanger this species.
    (1D) Comment: Inland lakes are mentioned in the 1988 Recovery Plan 
as potential breeding habitat around the Great Lakes. Were smaller, 
inland lakes considered for designation?
    Response: Inland lake records of piping plovers in the Great Lakes 
are very few and from long ago. Cottrille (1957) cites four records of 
piping plovers at three inland locations in Michigan between 1938 and 
1954, but no such sightings have been made in recent years. 
Additionally, there are no inland lakes in the Great Lakes area that 
are presently known to contain the primary constituent elements for 
this population of piping plovers.
    (1E) Comment: There is no mention of migratory sites or habitat 
needs during migration.
    Response: Areas used by piping plovers on migratory routes are 
likely very important for survival to the next breeding season. 
Extraordinarily little is known, however, about important stop-over 
sites and habitat needs of the piping plover during migration. Because 
so little is known about where essential migratory stop-over sites are 
located, we did not designate migratory habitat in this rule. Important 
migratory sites may be added to the critical habitat designation (by 
following the complete proposal process and soliciting public comments) 
when we have a better understanding of migratory habitat requirements.
    (1F) Comment: Why is unoccupied habitat being designated as 
critical habitat?
    Response: The inclusion of unoccupied areas in this critical 
habitat designation is in accordance with section 3(5)(A) of the Act, 
which provides that areas outside the geographic area currently 
occupied by the species may meet the definition of critical habitat 
upon a determination that they are essential for the conservation of 
the species. Our regulations also provide for the designation of areas 
outside the geographical area currently occupied if we find that a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species (50 CFR 424.12(e)).
    In 2000, there were about 30 breeding pairs of piping plovers in 
the Great Lakes area, all of which occur in Michigan (Stucker et al. 
2000). The Great Lakes and Northern Great Plains Piping Plover Recovery 
Plan (USFWS 1988b) establishes a recovery goal of 150 breeding pairs in 
the Great Lakes watershed. This number is considered a minimum for the 
recovery of the species and eventual removal from the protections of 
Act. Of these 150 breeding pairs, at least 100 are to be in Michigan 
and at least 50 in other Great Lakes States. In order to achieve this 
recovery goal, additional habitat areas are needed beyond those 
currently occupied by the species. We have designated currently 
unoccupied areas as critical habitat on the basis of historical piping 
plover occurrences and the existence of most or all of the primary 
constituent elements at other sites lacking historical occurrences. 
Additionally, all of the currently unoccupied areas designated as 
critical habitat are included as essential habitat in the draft revised 
Recovery Plan (USFWS 1994).

Issue 2: Policy and Regulations

    The following comments and responses involve issues related to 
public involvement in the designation process and compliance with the 
Act and other laws, regulations, and policies.
    (2A) Comment: Several commenters were supportive of the policy that 
lands covered by approved HCPs that provide incidental take 
authorization for the piping plover should be excluded from critical 
habitat. Other commenters believe that critical habitat designation 
should occur within the boundaries of such HCPs.
    Response: We recognize that critical habitat is only one of many 
conservation tools for federally listed species. HCPs are one of the 
most important tools for reconciling land use with the conservation of 
listed species on non-Federal lands. Section 4(b)(2) of the Act allows 
us to exclude areas from critical habitat designation where the 
benefits of exclusion outweigh the benefits of designation, provided 
the exclusion will not result in the extinction of the species. We 
believe that in most instances the benefits of excluding HCPs from 
critical habitat designations will outweigh the benefits of including 
them. For this designation, we find that the benefits of exclusion 
outweigh the benefits of designation for the one legally operative HCP 
issued for the piping plover in the Great Lakes.
    We anticipate that future HCPs in the range of the Great Lakes 
breeding population of piping plovers will include it as a covered 
species and provide for its long term conservation. We expect that HCPs 
undertaken by local jurisdictions (e.g. counties, cities) and other 
parties will identify, protect, and provide appropriate management for 
those specific lands within the boundaries of the plans that are 
essential for the long term conservation of the species. Section 
10(a)(1)(B) of the Act sates that HCPs must meet issuance criteria, 
including minimizing and mitigating any take of the listed species 
covered by the permit to the extent practicable, and that the taking 
must not appreciably reduce the likelihood of the survival and recovery 
of the species in the wild. We fully expect that our future analyses of 
HCPs and section 10(a)(1)(B) permits under section 7 will show that 
covered activities carried out in accordance with the provisions of the 
HCP and section 10(a)(1)(B) permits will not result in the destruction 
or adverse modification of critical habitat designated for the piping 
plover.
    In the event that future HCPs covering the Great Lakes breeding 
population of the piping plover are developed within the boundaries of 
designated critical habitat, we will work with applicants to ensure 
that the HCPs provide for protection and management of habitat areas 
essential for the conservation of the piping plover by either directing 
development and habitat modification to nonessential areas or 
appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. 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. We will provide technical 
assistance and work closely with applicants throughout the development 
of future HCPs to identify lands essential for the long term 
conservation of the species and appropriate management of those lands. 
If the piping plover is a covered species under future HCPs, the plans 
should provide for the long term conservation

[[Page 22953]]

of the species. The take minimization and mitigation measures provided 
under these HCPs are expected to adequately protect the essential 
habitat lands designated as critical habitat in this rule, such that 
the value of these lands for the survival and recovery of the Great 
Lakes breeding population of the piping plover is not appreciably 
diminished through direct or indirect alterations. If an HCP that 
addresses the piping plover as a covered species is ultimately 
approved, the Service will reassess the relevant critical habitat 
boundaries in light of the protection and management provided by the 
HCP. The Service will seek to undertake this review when the HCP is 
approved, but funding constraints may influence the timing of such a 
review. However, an HCP can proceed without a concurrent amendment to 
the critical habitat designation should all involved parties agree.
    (2B) Comment: Specific lands should be excluded using the exemption 
afforded pursuant to 4(b)(2) of the Act. The biological benefits of 
critical habitat are outweighed by the benefits of exclusion.
    Response: Section 4(b)(2) of the Act and 50 CFR 424.19 require us 
to consider the economic impact, and any other relevant impact, of 
specifying any particular area as critical habitat. We may exclude any 
area from critical habitat if we determine that the benefits of 
exclusion outweigh the benefits of designating the area as critical 
habitat, unless that exclusion will lead to extinction of the species. 
As discussed in this final rule, we have determined that no significant 
adverse economic effects will result from this critical habitat 
designation. Consequently, none of the proposed lands have been 
excluded from the designation based on economic impacts. As discussed 
in the response to the comment above, we have excluded the one legally 
operative HCP from the designation pursuant to section 4(b)(2) of the 
Act based on other relevant impacts.
    (2C) Comment: We received three written requests to extend the 
comment period for the proposed designation and draft economic 
analysis.
    Our Response: Following the publication of the proposed critical 
habitat designation on July 6, 2000, we opened a 60 day public comment 
period which closed on September 5, 2000, held seven public hearings 
during July, and conducted outreach notifying elected officials, local 
jurisdictions, interest groups, and property owners. We conducted much 
of this outreach through legal notices in regional newspapers, 
telephone calls, letters and news releases mailed to affected elected 
officials, local jurisdictions, and interest groups, and publication of 
the proposed determination and associated materials on our internet 
site. We published a document in the Federal Register on September 19, 
2000, announcing the availability of the draft economic analysis and 
reopening the comment period until October 19, 2000. On September 28, 
2000, in order to fulfill our intention that the comment period be 
reopened for 60 days, we published a document correcting the closing 
date of the comment period, to November 20, 2000. Because of the court-
ordered ten month time frame for completing the designation, we were 
not able to extend or open an additional public comment period beyond 
the four and one-half months we provided.
    (2D) Comment: We received two requests to hold additional public 
hearings on the proposed designation.
    Our Response: We are required to hold one public hearing on a 
proposed action, if it is requested. Due to the short time between 
proposal and the court-ordered deadline for publication of the final 
rule, we chose to announce public hearings at the time the proposal was 
published. We published notification of the hearings in the Federal 
Register as part of the proposal, published legal notices in regional 
newspapers, posted information on our internet site, and issued news 
releases about the hearings. During the month of July, 2000, we held 
seven public hearings throughout the Great Lakes States affected by the 
proposed critical habitat designation. Additional public hearings were 
requested in locations near one of the seven hearings. Because of the 
court-ordered deadline and the broad coverage of the original public 
hearings, we chose not to hold additional public hearings.
    (2E) Comment: One commenter suggested that we post the hearing 
transcripts and all of the comments received during the public comment 
period on the internet.
    Response: We have not posted copies of hearing transcripts and the 
comments received on a proposed action on the internet in the past. The 
volume of public comments received on some proposals is very large, 
thus it is not practicable to post them on the internet at this time. 
The hearing transcripts and comments on the proposal to designate 
critical habitat for the Great Lakes breeding population of the piping 
plover are available during normal business hours at the U.S. Fish and 
Wildlife Service offices at: Bishop Henry Whipple Building, 1 Federal 
Drive, Fort Snelling, Minnesota 55111; and 2651 Coolidge Road, Suite 
101, East Lansing, Michigan 48823. Call our Ecological Services office 
in Fort Snelling at 612-713-5350 for more information on how to view 
the transcripts and comments.
    (2F) Comment: Alternatives to designating critical habitat were not 
considered.
    Response: By law, according to section 4(a)(3) of the Act, we are 
required to designate critical habitat ``to the maximum extent 
prudent'' for all listed species. Furthermore, in the case of the 
piping plover, we were ordered by the United States District Court for 
the District of Columbia to designate critical habitat for the Great 
Lakes breeding population of this species. Other conservation actions 
are important to the recovery of the piping plover and will be carried 
out as part of the recovery process, but they are not legal 
alternatives to designating critical habitat.
    (2G) Comment: A few commenters recommended that we postpone issuing 
a final determination until a more specific and defensible critical 
habitat proposal can be written and an accurate and quantitative 
economic analysis be conducted.
    Response: We are required to use the best available information in 
designating critical habitat. We are under a court order to complete 
the designation of critical habitat for the Great Lakes breeding 
population of the piping plover by April 30, 2001. We did solicit new 
biological data and public participation during the comment periods on 
the proposed rule and draft economic analysis. These comments have been 
taken into consideration in the development of the final economic 
analysis and this final determination. Furthermore, we will continue to 
monitor and collect new information and may revise the critical habitat 
designation in the future if new information indicates a change is 
needed, given our available funding and priorities.
    (2H) Comment: The maps presented in the proposed rule are difficult 
to interpret and therefore will be difficult to use in planning 
efforts.
    Response: The maps published in the Federal Register are provided 
for reference purposes to guide Federal agencies and other interested 
parties in identifying the general boundaries within which the critical 
habitat is located. While the verbal descriptions of each critical 
habitat unit are meant to provide a more precise reference for actual 
boundaries, we recognize the value to the public and resource managers 
of more detailed maps. Due to

[[Page 22954]]

the time constraints of the court ordered deadline and our limited 
Geographic Information System (GIS) capabilities, we have not been able 
to produce more detailed maps to match our verbal descriptions. We have 
made it a priority to complete more detailed GIS maps of the designated 
areas and make these maps available for public use.

Issue 3: Economic and Other Relevant Impacts

    (3A) Comment: Designation of critical habitat will cause private 
property values to decline and will negatively affect businesses.
    Response: The economic analysis indicates that designation of 
critical habitat for the Great Lakes breeding population on the piping 
plover will not have a significant economic impact. The economic 
analysis does acknowledge that the designation of critical habitat may 
have some effect on private property values. We believe that this 
short-term effect would occur from market uncertainty and public 
misperception of the impacts of the critical habitat designation on 
private land use. We also believe that this short-term effect on 
property values would diminish over time as the uncertainty and 
misperceptions are dispelled. We did not find supporting evidence 
during the preparation of the economic analysis to estimate or document 
this potential short-term effect on property values. The economic 
analysis determined that there will be an insignificant impact to 
businesses.
    (3B) Comment: Several commenters expressed concern about a quick 
response to emergency maintenance activities, specifically emergency 
erosion control and environmental clean-up, and questioned whether 
emergency activities are exempt from consultation under section 7 of 
the Act.
    Response: Emergency activities are not exempt from consultation 
under section 7 of the Act. However, the regulations at 50 CFR 402.05 
allow for informal consultation where emergency circumstances mandate 
the need to consult in an expedited manner. Formal consultation must be 
initiated as soon as possible after the emergency is under control. In 
addition, programmatic consultations can be conducted prior to an 
emergency to address response activities which can be reasonably 
anticipated.
    (3C) Comment: Some commenters voiced concern that they were not 
directly contacted for their opinions on the economic impacts of 
critical habitat designations or why their specific land parcels were 
not addressed.
    Response: We did not feel it was necessary to contact every 
potential stakeholder in order for us to develop a draft economic 
analysis. Especially in light of the limited resources and time 
available to us, we believe that we were adequately able to understand 
the issues of concern to local communities based on public comments 
submitted on the proposed rule, on transcripts from public hearings, 
and from detailed discussions among our staff and with representatives 
from other Federal, State, Tribal, and local government agencies, as 
well as some landowners. When the draft economic analysis was 
completed, we reopened the comment period to request public comment, in 
particular on the adequacy of the economic analysis.
    (3D) Comment: Several commenters expressed concern about the impact 
critical habitat will have on future development projects and the 
maintenance of existing structures.
    Response: The designation of critical habitat does not necessarily 
restrict further development. Within critical habitat boundaries, 
Federal agencies must make special efforts to protect the important 
characteristics of these areas, therefore, if a proposed development 
project with a Federal nexus were to affect critical habitat of the 
piping plover, consultation under section 7 of the Act would be 
required. Because the Great Lakes population of the piping plover is 
listed as an endangered species under the Act, section 7 consultations 
would be required for development projects in areas with piping 
plovers, even if these areas are not designated critical habitat.
    Existing human-made structures, such as buildings, parking lots, 
and boat ramps are not critical habitat, therefore, many maintenance 
projects on such structures will not affect critical habitat. Only 
those projects with a Federal nexus that modify the primary constituent 
elements to such a degree as to cause the habitat to be unsuitable for 
breeding piping plovers will be affected.
    We understand the importance of beach nourishment and dredging for 
maintaining beach areas and harbors in the Great Lakes. Additionally, 
these activities, if conducted in an appropriate manner, may be 
beneficial to nesting piping plovers. These activities, however, do 
alter the habitat, and thus will likely require consultation. For these 
types of ongoing activities, programmatic consultations can be 
conducted to reduce the time necessary for annual consultations.
    In those cases where consultation is required, we will work 
cooperatively with Federal agencies to see that necessary work can 
proceed in concert with the requirements of the Act to conserve the 
piping plover and its habitat. In cases where critical habitat has been 
designated for areas occupied by the piping plover, consultations would 
likely have been required, regardless of the designation of critical 
habitat.
    (3E) Comment: A number of commenters expressed concern about the 
impact on recreational activities, tourism, and the possibility of 
restricted beach access within designated critical habitat.
    Response: Most recreational activities on the majority of beaches 
within critical habitat will not be impacted by critical habitat 
designation. Since non-Federal activities are not affected by critical 
habitat designation, beach use would only be affected if a Federal 
agency funds, authorizes, or carries out an action that will result in 
a level of human use that precludes successful piping plover breeding. 
In those cases, we will work with the Federal agency involved to 
protect potential breeding habitat while having as minimal an effect as 
possible on people's enjoyment of the areas. On non-Federal lands, 
recreational beach activities such as walking, jogging, sunning, 
swimming, and picnicking will not be affected by the critical habitat 
designation.
    The recovery of piping plovers in the Great Lakes area can be 
consistent with recreational and other economic activities. According 
to the 1996 National Survey of Fishing, Hunting, and Wildlife 
Associated Recreation, wildlife observation is one of the fastest 
growing outdoor activities. The presence of piping plovers on 
Michigan's beaches should continue to attract bird watchers who are 
excited to view this rare species in its natural habitat.

Issue 4: Site Specific Issues

    The following comments and responses involve issues related to the 
inclusion or exclusion of specific areas, or our methods for selecting 
appropriate areas for designation as critical habitat.
    (4A) Comment: Several comments pointed out errors in mileages, 
locations, or descriptions of critical habitat units in the proposed 
rule.
    Response: Corrections have been made in the final rule to reflect 
these comments, where appropriate.
    (4B) Comment: A number of commenters identified specific areas that 
they thought should not be designated as critical habitat.
    Response: Where site specific documentation was submitted to us 
providing a rationale as to why an area

[[Page 22955]]

should not be designated as critical habitat, we evaluated that 
information in accordance with the definition of critical habitat 
pursuant to section 3 of the Act and made a determination as to whether 
modifications to the proposal were appropriate. Based on the comments 
we received, we excluded lands from the final designation that we 
determined to be nonessential to the conservation of the piping plover 
(i.e., areas that did not contain the primary constituent elements) or 
that were located within an approved HCP for the piping plover (refer 
to the ``Summary of Changes from Proposed Rule'' section for specific 
areas that were excluded). None of the proposed lands have been 
excluded from the final designation based on economic impacts. We 
included in the final designation those lands that we still consider 
essential to the recovery of the Great Lakes breeding population of 
piping plovers.
    (4C) Comment: Multiple commenters recommended adding specific lands 
to critical habitat or further investigating additional areas for 
suitable habitat.
    Response: During the Federal rule-making process for designating 
critical habitat, we may, based upon information received during the 
public comment period, remove proposed critical habitat lands from a 
final designation and refine proposed boundaries. However, according to 
section 4(b)(4) of the Act, we may not add new critical habitat units 
without first proposing these lands in the Federal Register and 
providing a public comment period. Therefore, potential critical 
habitat units that were not included in the proposal for the Great 
Lakes population of the piping plover are not designated as critical 
habitat in this final determination.
    Some of the lands recommended for addition to critical habitat were 
not included in the proposal because we earlier concluded that these 
lands were not essential for the conservation of the species or did not 
meet the definition of piping plover critical habitat. After 
reassessing the requested additional lands on South Fox Island in 
Michigan, we continue to believe that these lands, at this time, do not 
meet the definition of critical habitat because they do not contain the 
primary constituent elements required by piping plovers.
    Several of the other requested sites were excluded from the 
proposed designation because information on current habitat suitability 
was not available. These sites will require further investigation to 
determine whether they are essential to the conservation of the 
species. Data gathered following the publication of the proposed rule 
indicates that some of the requested lands contain suitable nesting 
habitat and may be essential to the conservation of the species. For 
example, we received a comment from the National Park Service 
requesting that a portion of Sleeping Bear Dunes National Lakeshore on 
South Manitou Island, Michigan be included in the designation because 
it is an important piping plover foraging area. We will continue to 
investigate potential piping plover critical habitat and may revise the 
critical habitat designation in the future if new information supports 
a change, and as available funding and other priorities allow. The data 
on additional sites that were provided to us during the comment period 
will be important in any future revisions to designated critical 
habitat.

Issue 5: Other Relevant Issues

    (5A) Comment: Two people commented that we should also designate 
critical habitat for piping plovers that breed along the north Atlantic 
coast.
    Response: We are currently required to complete a significant 
number of listing-related actions, pursuant to court orders and 
judicially approved settlement agreements. Complying with these court 
orders and settlement agreements will require the Service to spend 
nearly all of its listing and critical habitat funding for fiscal year 
2001, and a substantial amount in fiscal year 2002. We are currently 
working to prioritize our critical habitat workload within the ESA 
listing budget allocated by Congress. The priority for designating 
critical habitat for the Atlantic Coast breeding population of piping 
plovers relative to other species and pending litigation has not yet 
been determined.
    (5B) Comment: Piping plovers that nest at Lake of the Woods, 
Minnesota represent an important genetic link between the Great Lakes 
and Great Plains populations. Piping plovers at Lake of the Woods 
should be considered part of the endangered Great Lakes breeding 
population instead of part of the threatened Great Plains breeding 
population.
    Response: We agree that the piping plovers that nest at Lake of the 
Woods, Minnesota represent an important link between the Great Lakes 
and Great Plains populations. Piping plovers that nest at Lake of the 
Woods are considered part of the Great Plains population because 
current data suggested that they are more closely associated with 
plovers in nearby Manitoba, Canada (Haig and Oring, 1988). Proposed 
critical habitat for piping plovers at Lake of the Woods will be 
considered in the proposal to designate critical habitat for the Great 
Plains piping plover, to be published on or before May 31, 2001.
    (5C) Comment: Many commenters suggested additional protection for 
piping plovers, beyond the designation of critical habitat.
    Response: Other conservation actions, besides the designation of 
critical habitat, are crucial to the recovery and survival of the 
piping plover. These other actions, including public education, 
predator control, law enforcement, and monitoring are addressed in the 
1988 and 1994 Recovery Plans for Piping Plovers Breeding in the Great 
Lakes and Northern Great Plains. We are currently revising these 
recovery plans and the public will be provided the opportunity to 
comment on the draft revised plan.
    (5D) Comment: One commenter stated that the effect of critical 
habitat should include situations that are not funded, authorized, or 
carried out by a Federal agency.
    Response: Once designated, critical habitat has only one regulatory 
impact: under section 7(a)(2) of the Act, Federal agencies must, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to result in the destruction or 
adverse modification of critical habitat. By law, the effect of 
critical habitat does not extend to situations that do not involve a 
Federal nexus.

Summary of Changes From Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat for the Great Lakes breeding 
population of the piping plover, we re-evaluated our proposed 
designation of critical habitat for the piping plover. This re-
evaluation resulted in the following changes that are reflected in this 
final determination.

Removal of Proposed Units

    Based on comments received on the proposal and site visits 
following the publication of the proposal, we removed three sites--
Pensaukee Harbor and Peshtigo Point, Wisconsin and Erie Pier/Hearding 
Island, Minnesota-- from this final critical habitat designation. We 
determined that these sites do not have, and are unlikely to develop, 
the features and habitat characteristics that are necessary to sustain 
the species and thus we no longer consider these areas to be essential 
for the conservation of the species.

[[Page 22956]]

Change in Extent of Inland Boundary

    The proposed 1 km (0.6 mi.) inland boundary was intended to 
incorporate dune blow-out areas and extensive dune-wetland systems. 
These inland areas provide important foraging habitat, as well as 
cobble pans between the dunes where plovers occasionally nest. Data 
gathered during the public comment period indicate that the majority of 
the dune systems within designated critical habitat do not extend 
further than 500 m (1,640 ft) inland from the normal high water line. 
Therefore, in this final determination, the inland boundary for all 
critical habitat units was changed from the proposed 1 km (0.6 mi) to 
500 m (1,640 ft) inland from normal high water line.

Errors in Unit Descriptions

    Several comments pointed out corrections or clarifications to unit 
descriptions. We applied this corrected information to the final rule 
and adjusted the verbal descriptions of 10 units; White Fish Point to 
Grand Marais (MI-1), Seven Mile Point to Thornswift Nature Preserve 
(MI-5), Petoskey Sate Park (MI-6), Greenes Bay-Beaver Island (MI-10), 
High Island (MI-11), South Fox Island (MI-13), Esch Road to Sutter Road 
and Point Betsie (MI-16), Lighthouse Point to Cordwood Point (MI-20), 
Thompson's Harbor (MI-22), and Illinois Beach State Park/Waukegan Beach 
(IL-1). None of the changes resulted in any significant alteration of 
the units.

Refined Unit Boundaries

    The boundaries of several of the units were refined to better 
reflect the areas that are essential to the conservation of the Great 
Lakes breeding population of the piping plover. The southeastern 
boundary of the unit at Long Island-Chequamegon Point, Wisconsin (WI-2) 
was moved northwestward approximately 5 km (3.1 mi) to the base of 
Chequamegon Point at the southern boundary of T48N R3W, section 1. This 
change was the result of discussions with the Bad River Band of Lake 
Superior Chippewa Indians and the Wisconsin Department of Natural 
Resources. The revised boundary excludes areas that do not have the 
required habitat features for nesting piping plovers and, therefore, 
are not essential to the conservation of the species. Additionally, the 
description of this unit given in the proposal, although inclusive of 
the entire peninsula, only calculated the length of the peninsula, not 
the perimeter shoreline of the peninsula. The calculation of the length 
of this unit as presented in this final determination includes the 
entire perimeter of the peninsula, and therefore appears to be larger, 
when in actuality it has been reduced by approximately 5 km (3.1 mi). 
The proposal states that the unit was 18 km (11.2 mi) long when, 
consistent with the verbal description and calculating both sides of 
the peninsula, it was actually 30.3 km (18.8 mi) long. Therefore, this 
unit is being reduced from 30.3 km (18.8 mi) to 25.3 km (15.7 mi) in 
this final determination.
    The western boundary of the Indiana Dunes (IN-1) unit was moved 
approximately 549 meters (1,800 feet) eastward to the western boundary 
of Indiana Dunes National Lakeshore. This revised boundary excludes 
lands owned by the Northern Indiana Public Service Company (NIPSCO) 
that do not have the required habitat features for nesting piping 
plovers and, therefore, are not essential to the conservation of the 
species.
    The southeastern boundary of the Pennsylvania unit (PA-1) at Gull 
Point Natural Area/Presque Isle State Park was moved approximately 2.3 
km (1.4 mi) north. The refined boundary excludes the public beach area 
that does not have the required habitat features for nesting piping 
plovers and, therefore, is not essential to the conservation of the 
species. Additionally, the length of this unit was miscalculated in the 
proposed rule. The proposal states that the unit was 1.5 km (0.9 mi) 
long when, consistent with the verbal description, it was actually 8.3 
km (5.1 mi) long. Therefore, this unit is being reduced from 8.3 km 
(5.1 mi) to 6.0 km (3.7 mi) in this final determination.

Exclusions Under Section 4(b)(2) of the Act

    In our proposed determination of critical habitat for the Great 
Lakes population of the piping plover, we asked for public comment on 
the appropriate relationship between approved HCPs and designated 
critical habitat. After considering the comments we received, we have 
chosen to evaluate areas covered by an approved HCP for the piping 
plover for exclusion under the benefits-balancing test found in section 
4(b)(2) of the Act. This section allows us to exclude areas upon 
determination that the benefits of excluding the area outweigh the 
benefits of including the are in the critical habitat designation, 
provided the exclusion would not result in the extinction of the 
species. Our application of this balancing test to lands covered by 
HCPs for the piping plover is described in detail in the preamble.
    Presently, one approved HCP exists for the piping plover in the 
Great Lakes region. The Magic Carpet Woods Association HCP covers 
approximately 792 m (2,600 ft) of shoreline within the proposed Cathead 
Bay critical habitat unit in Leelanau County, Michigan. This plan 
addresses the piping plover as a covered species and provides 
conservation management and protection for the species. We evaluated 
this plan and determined that the conservation management measures and 
protection afforded to the piping plover are sufficient to assure its 
conservation on the involved lands. Among other features, the plan 
requires residences be set back from the beach, biological monitoring, 
the presence of a piping plover steward, containing garbage, and 
restraining pets. Therefore, we have excluded the lands covered by the 
Magic Carpet Woods Association HCP from the final determination of 
critical habitat for the Great Lakes breeding population of the piping 
plover.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. 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. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    The economic analysis must examine the incremental economic effects 
of the critical habitat designation above those effects of the listing. 
Economic effects are measured as changes in national income, regional 
jobs, and household income. A draft analysis of the economic effects of 
the critical habitat designation for the Great Lakes breeding 
population of the piping plover was prepared (Industrial Economics, 
Incorporated, 2000) and made available for public review (September 19 
to November 20, 2000; 65 FR 56530 and 65 FR 58258). We also completed a 
final economic analysis that incorporated public comments, information 
gathered since the draft analysis, and changes to the critical habitat 
designation. The analysis found that there would be an economic impact 
from the designation that would vary on a situational level, and that 
most of the impact would come in the form of new section 7 
consultations in unoccupied habitat

[[Page 22957]]

units. In the economic analysis, we estimate that, over the next ten 
years, the total costs by landowners associated with consultation and 
technical assistance attributable to this rulemaking will range between 
$314,200 and $592,000. Our economic analysis also recognizes that there 
may be costs from delays associated with reinitiating previously 
completed consultations after the critical habitat designation is made 
final. There may also be economic effects due to the reaction of the 
real estate market to critical habitat designation, as real estate 
values may be lowered due to a perceived increase in the regulatory 
burden. However, we believe this impact will be minor and short-term. 
We have determined that these economic impacts do not warrant excluding 
any areas from the designation.
    A copy of the final economic analysis is included in our 
administrative record and may be obtained by contacting our office (see 
ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    This document has been designated as significant and reviewed by 
the Office of Management and Budget (OMB), in accordance with Executive 
Order 12866. OMB makes the final determination of significance 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 2000, 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 in the Great Lakes watershed. We have also issued one 
section 10(a)(1)(B) incidental take permit for an entity that has 
prepared an HCP involving piping plover habitat.
    Approximately 236 km (146 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 89 km 
(55 mi) of the total designated critical habitat are currently occupied 
by piping plovers. Under the Act, critical habitat may not be adversely 
modified or destroyed by a Federal agency action; it does not impose 
any restrictions on non-Federal entities 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.

       Table 3.--Activities Potentially Impacted by Piping Plover Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                         Additional activities
                                          Activities potentially affected by species   potentially  affected by
        Categories of activities                       listing only \1\                    critical habitat
                                                                                            designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially            Direct take and activities such as          Activities by Federal
Affected.\3\............................   removing or destroying piping plover        agencies in any
                                           breeding habitat, whether by mechanical,    unoccupied critical
                                           chemical, or other means (e.g.,             habitat areas.
                                           construction, road 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-Federal             Direct take and activities such as          Funding, authorization, or
Activities Potentially Affected.\4\.....   removing or destroying piping plover        permitting actions by
                                           habitat, whether by mechanical, chemical,   Federal Agencies in any
                                           or other means (e.g., construction, road    unoccupied critical
                                           building, boat launch and marina            habitat areas.
                                           construction or 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.

    Based upon our experience with the species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause adverse modification of designated occupied critical 
habitat would currently be considered ``jeopardy'' under the Act. 
Accordingly, the designation of areas within the geographic range 
occupied by the piping plover will not likely 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. 
The designation of areas outside the geographic range already occupied 
by the species may have incremental impacts on what activities may or 
may not be conducted by Federal agencies or non-Federal persons that 
receive Federal authorization or funding. However, our analysis did not 
identify any significant incremental effects. Non-Federal persons that 
do not have a Federal ``sponsorship'' of their actions are not 
restricted by the designation of critical habitat, although they 
continue to be bound by the provisions of the Act concerning ``take'' 
of the species.
    (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

[[Page 22958]]

since the listing in 1985. The prohibition against adverse modification 
of critical habitat is not expected to impose any substantial 
additional restrictions to those that currently exist. Because of the 
potential for impacts on other Federal agency activities, we will 
continue to review this 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 
significant incremental effects in areas of occupied habitat. The 
critical habitat designation may have some additional effects on the 
unoccupied areas of proposed critical habitat, but we expect these to 
be minor.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

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

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above, this designation of critical habitat for the Great Lakes 
breeding population of the piping plover is not expected to have a 
significant economic impact. As indicated on Table 1 (see 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 potential concerns 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.
    Some of these activities sponsored by Federal agencies within the 
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 
largely required to comply with the listing protections of the Act, and 
the designation of critical habitat is not anticipated to have 
significant additional effects on these activities in areas of critical 
habitat occupied by the species. Designation of critical habitat in 
areas that are unoccupied by this species will not likely result in 
significant additional effects because only actions involving a Federal 
nexus will be affected.
    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 final 
determination will have no additional restrictions.

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

    In the economic analysis, we determined that designation of 
critical habitat will not 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. Refer to the final economic analysis for a discussion of 
the effects of this determination.

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 to avoid jeopardizing the species.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This determination will not ``take'' private property 
and will not alter the long-term value of private property. As 
discussed above, the designation of critical habitat affects only 
Federal agency actions. The rule will not increase or decrease the 
current restrictions on private property concerning take of the piping 
plover. Due to current public knowledge of the species protection, the 
prohibition against take of the species both within and outside of the 
designated areas, and the fact that critical habitat provides no 
incremental restrictions, we do not anticipate that property values 
will be affected by the critical habitat designation. While real estate 
market values may temporarily decline following designation, due to the 
perception that critical habitat designation may impose additional 
regulatory burdens on land use, we expect any such impacts to be short 
term. Additionally, critical habitat designation does not preclude 
development of HCPs and issuance of incidental take permits. Landowners 
in areas that are included in the designated critical habitat will 
continue to have the opportunity to utilize their property in ways 
consistent with the conservation of the piping plover.

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

[[Page 22959]]

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 for the conservation of the species 
are specifically identified. This definition and identification 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. The determination 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 an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
This final determination does not constitute a major Federal action 
significantly affecting the quality of the human environment.

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 
Government'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's requirement at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully 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. We coordinated 
with the Bad River Band of Lake Superior Chippewa Indians in 
determining which Tribal lands constitute critical habitat, and have 
included that area in the critical habitat designation.

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).

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 
record keeping requirements, Transportation.

Regulations Promulgation

    For the reasons given in the preamble, we amend part 17, subchapter 
B of chapter I, title 50 of the Code of Federal Regulations as set 
forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.11(h) revise the first entry for ``Plover, piping'' 
under ``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic Range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Birds
 
                   *                  *                  *                  *                  *                  *                  *
Plover, piping...................  Charadrius melodus..  U.S.A. Great Lakes   Great Lakes          E                       211     17.95(b)           NA
                                                          northern Great       watershed in
                                                          Plains, Atlantic     States of IL, IN,
                                                          and Gulf coasts,     MI, MN, NY, OH,
                                                          PR, VI), Canada,     PA, and WI and
                                                          Mexico, Bahamas,     Canada (Ont.)..
                                                          West Indies.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(b) by adding 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, and Manitowoc Counties, 
Wisconsin; Lake County, Illinois; Porter County, Indiana; Erie and Lake 
Counties, Ohio; Erie County, Pennsylvania; Oswego and

[[Page 22960]]

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. i. 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 open, sparsely 
vegetated sandy habitats, such as sand spits or sand beaches, that are 
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. As the 
nesting season progresses, the level of disturbance tolerated by piping 
plovers increases. A lower level of disturbance is required at the 
beginning of the nesting period during nest site selection, egg laying, 
and incubation. Beach activities that may be associated with a high 
level of disturbance include, but are not limited to, walking pets off 
leash, loud noise, driving ATVs, or significantly increased human 
presence. The level of disturbance is relative to the proximity to the 
nest, intensity, and frequency of these and other similar activities.
    ii. Appropriately sized sites must also have areas of at least 50 
meters (m) (164 feet (ft)) in length where the beach width is more than 
7 m (23 ft), there is protective cover for nests and chicks, and the 
distance to the treeline (from the normal high water line to where the 
forest begins) is more than 50 m (164 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 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 (0.4 
inches (in)) diameter), gravel (stones smaller than 1 cm (0.4 in) 
diameter), or debris such as driftwood, wrack, root masses, or dead 
shrubs.
    iii. The dynamic ecological processes that create and maintain 
piping plover habitat are also important primary constituent elements. 
These geologically dynamic lakeside regions are controlled by processes 
of erosion, accretion, plant succession, and lake-level fluctuations. 
The integrity of the habitat components depends upon regular sediment 
transport processes, as well as episodic, high-magnitude storm events. 
By their nature, Great Lakes shorelines are in a constant state of 
change; habitat features may disappear, or be created nearby. The 
critical habitat boundaries reflect these natural processes and the 
dynamic character of Great Lakes shorelines.
    3. Critical habitat does not include existing features and 
structures, such as buildings, marinas, paved areas, boat ramps, piers, 
bridges, lighthouses, and similar structures not containing one or more 
of the primary constituent elements.

    Note: Maps follows:

BILLING CODE 4310-55-P

[[Page 22961]]

[GRAPHIC] [TIFF OMITTED] TR07MY01.001


[[Page 22962]]



Map of Units MN/WI-1, WI-1, WI-2, and WI-3

    MN/WI-1: St Louis County, Minnesota. From USGS 1:24,000 
quadrangle map West Duluth, Minnesota (1953, photorevised 1969). 
Lands 500 m (1640 feet) inland from normal high water line on 
Interstate Island in T49N R14W S10
    WI-1: Douglas County, Wisconsin. From USGS 1:24,000 quadrangle 
maps Parkland, Wisconsin (1954, photorevised 1975) and Superior, 
Wisconsin (1954, photorevised 1983). Lands 500 meters (1640 feet) 
inland from normal high water line from the mouth of Dutchman Creek 
west-northwestward along the Lake Superior shoreline to the 
breakwall forming the Superior Front Channel opening to Lake 
Superior at the Douglas and St. Louis County line.
    WI-2: Ashland County, Wisconsin. From USGS 1:24,000 quadrangle 
maps Cedar, Wisconsin (1964, photorevised 1975); Chequamegon Point, 
Wisconsin (1964, photorevised 1975); and Long Island, Wisconsin 
(1964). Lands 500 meters (1640 feet) inland from normal high water 
line from the southern boundary of T48N R3W, section 1 northwestward 
along the Lake Superior shoreline to Chequamegon Point Light.
    WI-3: Ashland County, Wisconsin. From USGS 1:24,000 quadrangle 
map Michigan Island, Wisconsin (1963). Lands 500 meters (1640 feet) 
inland from normal high water line on Michigan Island within T51N 
R1W sections 28, 20, and 21.


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.002
    

[[Page 22963]]



Map of Units WI-4 and WI-5

    WI-4: Marinette County, Wisconsin. From USGS 1:24,000 quadrangle 
map Marinette East, Wisconsin (1963, photorevised 1969). Lands 500 m 
(1640 ft) inland from normal high water line from the end of Leonard 
Street at Red Arrow Park in T30N R24E section 9 south-southeastward 
to the south end of Seagull Bar including nearshore sand bars.
    WI-5: Manitowoc County, Wisconsin. From USGS 1:24,000 quadrangle 
map Two Rivers, Wisconsin (1978). Lands 500 m (1640 ft) inland from 
normal high water line from the southwest property boundary of Point 
Beach State Forest near Neshotah Park in the city of Twin Rivers 
(T20N R25E section 31) northwestward along the Lake Michigan 
shoreline to the south boundary of section 9, T20N R25E, at Rawley 
Point.


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.003
    

[[Page 22964]]



Map of Units IL-1 and IN-1

    IL-1: Lake County, Illinois. From USGS 1:24,000 quadrangle maps 
Zion, Illinois (1993) and Waukegan, Illinois (1993). Lands 500 m 
(1640 ft) inland from normal high water line from 17th Street and 
the Lake Michigan shoreline in Illinois Beach State Park T46N R12E 
section 14 (Zion, Ill. quad) southward along the Lake Michigan 
shoreline (excluding the portion of Lake Michigan shoreline from 
dividing line of T46N R12E sections 23 and 26 to 500 m (1,640 ft) 
south of the Illinois Beach State Park Lodge and Conference Center) 
to the Waukegan Beach breakwall at North Beach Park T45N R12E 
section 22 (Waukegan quad).
    IN-1: Porter County, Indiana. From USGS 1:24,000 quadrangle maps 
Ogden Dunes, Indiana (1991) and Dune Acres, Indiana (1991). Lands 
500 m (1640 ft) inland from normal high water line from the western 
boundary of the Cowels Bog/Dune Acres Unit, (located east of the 
Port of Indiana and the NIPSCO Baily Generating Station) east-
northeastward along the Indiana Dunes State Park to Kemil Road at 
Beverly Shores.


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.004
    
Map of Units MI-1 through MI-23

    MI-1: Chippewa, Luce, and Alger Counties, Michigan. From USGS 
1:24,000 quadrangle maps Whitefish Point, Michigan (1951); 
Vermilion, Michigan (1951); Betsy Lake North, Michigan (1968); 
Muskallonge Lake East, Michigan (1968); Muskallonge Lake West, 
Michigan (1968); and Grand Marais, Michigan (1968). Lands 500 m 
(1640 ft) inland from normal high water line within the junction of 
the southern boundary of T50N R5W section 6 (Whitefish Point quad) 
and including the shore of Lake Superior following the shoreline 
northeast to Whitefish Point, then following the Lake Superior 
shoreline westward around the point(Vermilion SE, Vermilion quads), 
crossing the Luce County line and continuing westward (Betsy Lake 
North, Betsy Lake Northwest) across the Alger County line (Grand 
Marais East) to Lonesome Point and the East Bay of the Sucker River 
(Grand Marais quad) and following the shoreline along the inner bay 
of Grand Marais Harbor past Carpenter Creek and ending at the 
shoreline north of the east end of the private road originating at 
the junction of Highway 58, Morris Road, and Veteran Road. The unit 
then continues from the breakwall north of the harbor, along the 
Lake Superior shoreline of Grand Marais near the former Coast Guard 
station (Grand Marais quad) westward along the Lake Superior 
shoreline to the Pictured Rocks National Lakeshore property boundary 
in T49N R14W section 1.
    MI-2: Mackinac County, Michigan. From USGS 1:24,000 quadrangle 
map Pointe Aux Chenes, Michigan (1964, photorevised 1975). Lands 500 
m (1640 ft) inland from normal high water line from the mouth of the 
Pointe Aux Chenes river following the Lake Michigan shoreline 
northwestward to the Hiawatha National Forest property boundary at 
the junction of T41N R5W sections 23 and 26.
    MI-3: Schoolcraft and Mackinac Counties, Michigan. From USGS 
1:24,000 quadrangle map Hughes Point, Michigan (1972). Lands 500 m 
(1640 ft) inland from normal high water line from the westernmost 
breakwall at the Port Inland Gaging Station following the Lake 
Michigan shoreline eastward along Hughes Point to the mouth of Swan 
Creek.
    MI-4: Emmet County, Michigan. From USGS 1:24,000 quadrangle maps 
Big Stone Bay, Michigan (1964, photoinspected 1975); Waugoshance 
Island, Michigan (provisonal 1982); Bliss, Michigan (1982); Cross 
Village, Michigan (1982). Lands 500 m (1640 ft) inland from normal 
high water line from the junction of the northeast corner of T39N 
R5W section 28 (Big Stone Bay quad) and Lake Michigan shoreline 
westward along the shoreline around and including Temperance and 
Waugoshance islands and any nearshore sandbars (Waugoshance Island 
quad), along the southern side of Waugoshance Point following the 
shoreline southeastward to Big Sucker Creek, continuing southward 
and southwestward along Sturgeon Bay Point (Bliss quad) and 
continuing southward along the Lake Michigan shoreline to the 
southwest boundary of T37N R6W section 5.
    MI-5: Emmet County, Michigan. From USGS 1:24,000 quadrangle map 
Forest Beach, Michigan. Lands 500 m (1640 ft) inland from normal 
high water line from the junction of Lake Michigan shoreline and the 
northwest boundary of T36N R6W section 30 south-southeastward along 
Lake Michigan shoreline to the junction of the shoreline and the 
southeast corner of T35N R6W section 9.

[[Page 22965]]

    MI-6: Emmet County, Michigan. From USGS 1:24,000 quadrangle map 
Harbor Springs, Michigan. Lands 500 m (1640 ft) inland from normal 
high water line from the mouth of Tannery Creek north along Lake 
Michigan shoreline of Little Traverse Bay crossing the northern 
property boundary of Petoskey State Park to include the shoreline of 
Mononaqua Beach within T35N R5W sections 22 and 21.
    MI-7: Charlevoix County, Michigan. From USGS 1:24,000 quadrangle 
maps Ironton, Michigan (1983) and Charlevoix, Michigan (1983). Lands 
500 m (1640 ft) inland from normal high water line within T34N R8W 
section 14.
    MI-8: Charlevoix County, Michigan. From USGS 1:24,000 quadrangle 
map Charlevoix, Michigan (1983). Lands 500 m (1640 ft) inland from 
normal high water line from the junction of the line separating T34N 
R8W section 31 and T33N R8W section 6 with the Lake Michigan shore 
then extends southwestward along the shoreline and including 
Fisherman's Island to the Fisherman's Island State Park property 
boundary at the end of Lakeshore Drive where it meets the line 
between T33N R9W sections 12 and 1.
    MI-9: Charlevoix County, Michigan. From USGS 1:24,000 quadrangle 
maps Garden Island West, Michigan (1980) and Beaver Island North 
(1986). Lands 500 m (1640 ft) inland from normal high water line 
from Indian Point (Garden Island West quad) T39N R10W section 20 
southward along the west Lake Michigan shoreline of Beaver Island 
including Donegal Bay and McCauley Point and ending at the junction 
of the dividing line of T39 N R10W and T38N R10W and the Lake 
Michigan shoreline (Beaver Island North quad).
    MI-10: Charlevoix County, Michigan. From USGS 1:24,000 
quadrangle map Beaver Island North (1986). Lands 500 m (1640 ft) 
inland from normal high water line from the junction of Lake 
Michigan and the northwest corner of T38N R11W section 25 southward 
along the Lake Michigan shoreline to the junction of the Lake 
Michigan shoreline and the dividing line between T39N and T38N R11W.
    MI-11: Charlevoix County, Michigan. From USGS 1:24,000 
quadrangle map High Island(1986). Lands 500 m (1640 ft) inland from 
normal high water line within T39N R11W sections 27 and 32 and T38N 
R11W section 5.
    MI-12: Leelanau County, Michigan. From USGS 1:24,000 quadrangle 
maps Northport, Michigan (provisional 1983)and Northport NW, 
Michigan (provisional 1983). Lands 500 m (1640 ft) inland from 
normal high water line from the intersection of the Lake Michigan 
shoreline and the line between T32N R11W section 12 and T32N R10W 
section 7--excluding lands covered by the Magic Carpet Woods 
Association HCP, approximately 2,600 feet of frontage on Cathead Bay 
within the east half of the southwest quarter and the west half of 
the southeast quarter of Section 14, T32N, R11W in Leelanau 
Township--then following the shoreline southwestward and past 
Cathead Point in T32N R11W section 15 (Northport quad) southwestward 
along the Lake Michigan shoreline to the intersection of the 
shoreline with the southern boundary of T32N R11W section 16 north 
of Christmas Cove (Northport NW quad).
    MI-13: Leelanau County, Michigan. From USGS 1:24,000 quadrangle 
map South Fox Island (provisional 1986). Lands 500 m (1640 ft) 
inland from normal high water line within T34N R13W sections 15, 16, 
and 21 and T35R13W section 30.
    MI-14: Leelanau County, Michigan. From USGS 1:24,000 quadrangle 
map North Manitou Island (provisional 1983). Lands 500 m (1640 ft) 
inland from normal high water line within T31N R14W sections 22, 23, 
27 and 28 on North Manitou Island.
    MI-15: Leelanau County, Michigan. From USGS 1:24,000 quadrangle 
maps Glen Arbor, Michigan (1983); Glen Haven, Michigan (1983); and 
Empire, Michigan (1983). Lands 500 m (1640 ft) inland from normal 
high water line from Crystal Run in T29N R14W section 14 (Glen Arbor 
quad) south-southwestward and westward along the Lake Michigan 
shoreline, then west-northwestward to Sleeping Bear Point (Glen 
Haven quad) and southwestward and south to the southern Sleeping 
Bear Dunes National Lakeshore property boundary in T28N R15W section 
13 (Empire quad).
    MI-16: Benzie County, Michigan. From USGS 1:24,000 quadrangle 
maps Empire, Michigan (1983); Beulah, Michigan (provisional 1983); 
and Frankfort, Michigan (1983). Lands 500 m (1640 ft) inland from 
normal high water line from Esch Road in T27N R15W section 1 (Empire 
quad) south-southwestward along the shoreline of Lake Michigan at 
Platte Bay (Beulah quad), then westward along the shoreline of Lake 
Michigan to Platte River Point (Frankfort quad) continuing west-
southwestward to the Sleeping Bear Dunes National Lakeshore property 
boundary at Sutter Road in T27N R16Wsection 26. Continuing from the 
junction of Lake Michigan shoreline and Point Betsie Natural Area 
property boundary in T27N R16W section 33 southward along the Lake 
Michigan shoreline to include all shoreline within T26N16W section 
4.
    MI-17: Mason County, Michigan. From USGS 1:24,000 quadrangle 
maps Manistee NW, Michigan (provisional 1923) and Hamlin Lake, 
Michigan (1982). Lands 500 m (1640 ft) inland from normal high water 
line from the mouth of Cooper Creek T20N R18W section 13 (Manistee 
NW quad) south-southwestward following the Lake Michigan shoreline 
along Big Sable Point (Hamlin Lake quad) to the mouth of the Big 
Sable River T19N R18W section 19.
    MI-18: Muskegon County, Michigan. From USGS 1:24,000 quadrangle 
map Muskegon West (1972, photoinspected 1980) and Dalton (1983). 
Lands 500 m (1640 ft) inland from normal high water line from the 
north breakwall of the canal joining Muskegon Lake and Lake Michigan 
(Muskegon West quad) north along the Lake Michigan shoreline to the 
northern Muskegon State Park property boundary at the shoreline 
(Dalton quad).
    MI-19: Chippewa County, Michigan. From USGS 1:24,000 quadrangle 
maps Albany Island, Michigan (1964, photoinspected 1976) and DeTour 
Village, Michigan (1964). Lands 500 m (1640 ft) inland from normal 
high water line from the State Forest boundary in T41N R3E section 
11 (Albany Island quad) and follows the Lake Huron shoreline east 
south eastward around and including St. Vital Point and then north 
to the mouth of Joe Straw Creek in T41N R3E section 12(De Tour 
Village quad).
    MI-20: Cheboygan County, Michigan. From USGS 1:24,000 quadrangle 
maps Cheboygan, Michigan (1982) and Cordwood Point, Michigan (1982). 
Lands 500 m (1640 ft) inland from normal high water line from the 
junction of the Lake Huron shoreline and the western boundary of 
T38N R1W section 22 (Cheboygan quad) eastward along the Lake Huron 
shoreline of Grass Bay, continuing to the western boundary of T38N 
R1E section 20 (Cordwood Point quad).
    MI-21: Presque Isle County, Michigan. From USGS 1:24,000 
quadrangle maps Roger's City, Michigan (1971) and Moltke, Michigan 
(1971). Lands 500 m (1640 ft) inland from normal high water line 
within T35N R5E section 6 and T36N R5E section 31 (Roger's City 
quad) continuing northwestward to the junction of Nagel Rd and Forty 
Mile Road at the junction of T36N R4E section 25 and T36N R5E 
section 30 (Moltke quad).
    MI-22: Presque Isle County, Michigan. From USGS 1:24,000 
quadrangle map Thompson's Harbor, Michigan (1971). Lands 500 m (1640 
ft) inland from normal high water line from Black Point to Grand 
Lake Outlet including shoreline within T34N R7E sections 10, 11, 14, 
and 15.
    MI-23: Iosco County, Michigan. From USGS 1:24,000 quadrangle map 
East Tawas, Michigan (1989). Lands 500 m (1640 ft) inland from 
normal high water line from the Tawas Sate Park boundary at the U.S. 
Coast Guard Station on the east side of Tawas Point southward along 
the Lake Huron shoreline including offshore sand spits and along the 
tip of the point and northeastward including all shoreline in T22N 
R8E section 34.


    Note: Map follows:


[[Page 22966]]


[GRAPHIC] [TIFF OMITTED] TR07MY01.005


[[Page 22967]]



Map of Units OH-1 and OH-2

    OH-1: Erie County, Ohio. From USGS 1:24,000 quadrangle maps 
Huron, Ohio (1969) and Sandusky, Ohio (1969, photorevised 1975). 
Lands 500 m (1640 ft) inland from normal high water line from the 
mouth of Sawmill Creek (Huron quad) northwestward along the Lake 
Erie shoreline to the western property boundary of Sheldon Marsh 
State Natural Area in T6N R23W (Sandusky quad) at the point where 
the Cedar Point causeway turns west and south toward Sandusky.
    OH-2: Lake County, Ohio. From USGS 1:24,000 quadrangle map 
Mentor, Ohio (1963, revised 1992). Lands 500 m (1640 ft) inland from 
normal high water line from the eastern boundary line Headland Dunes 
Nature Preserve westward along the Lake Erie shoreline to the 
western boundary of the Nature Preserve and Headland Dunes State 
Park.


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.006
    

[[Page 22968]]



Map of Unit PA-1

    PA-1: Erie County, Pennsylvania. From USGS 1:24,000 quadrangle 
map Erie North, Pennsylvania (1957, revised 1969 and 1975, 
photoinspected 1977). Lands 500 m (1640 ft) inland from normal high 
water line from the lighthouse north of Peninsula Drive on the north 
side of Presque Isle (located at approximately 042 degrees 09' 
57.41" N and 080 degrees 06'57.57" W) eastward along the Lake Erie 
shoreline around the tip of Presque Isle peninsula to the southern 
terminus of the hiking trail on the southeast side of Gull Point 
(located at approximately 042 degrees 10' 3.13" N and 080 degrees 
04" 29.56" W). It includes any new beach habitat that may accrete 
along the present shoreline portion of the unit.


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.007
    

[[Page 22969]]



Map of Unit NY-1

    NY-1: Oswego County, New York. From USGS 1:24,000 quadrangle 
maps Pulaski, New York (1956), Ellisburg, New York (1958), and 
Henderson, New York (1959). Lands 500 m (1640 ft) inland from normal 
high water line from the mouth of the Salmon River (Pulaski quad) 
northward along the Lake Ontario shoreline to the Oswego County-
Jefferson County line (Ellisburg quad) and northward to the Eldorado 
Road (Henderson quad).


    Note: Map follows:

    [GRAPHIC] [TIFF OMITTED] TR07MY01.008
    
* * * * *

    Dated: April 30, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-11205 Filed 5-2-01; 12:41 pm]
BILLING CODE 4310-55-C