[Federal Register Volume 66, Number 132 (Tuesday, July 10, 2001)]
[Rules and Regulations]
[Pages 36038-36143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16905]



[[Page 36037]]

-----------------------------------------------------------------------

Part II





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Determinations of 
Critical Habitat for Wintering Piping Plovers; Final Rule

  Federal Register / Vol. 66, No. 132 / Tuesday, July 10, 2001 / Rules 
and Regulations  

[[Page 36038]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG13


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for Wintering Piping Plovers

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the Fish and Wildlife Service (Service), designate 137 
areas along the coasts of North Carolina, South Carolina, Georgia, 
Florida, Alabama, Mississippi, Louisiana, and Texas as critical habitat 
for the wintering population of the piping plover (Charadrius melodus). 
This includes approximately 2,891.7 kilometers (km) (1,798.3 miles 
(mi)) of mapped shoreline and approximately 66,881 hectares (ha) 
(165,211 acres (ac)) of mapped area along the Gulf and Atlantic coasts 
and along margins of interior bays, inlets, and lagoons.
    The population of piping plovers that breeds in the Great Lakes 
States is listed as endangered, while all other piping plovers are 
threatened species under the Endangered Species Act of 1973, as amended 
(Act). All piping plovers are considered threatened species under the 
Act when on their wintering grounds. Critical habitat identifies 
specific areas that are essential to the conservation of a listed 
species, and that may require special management considerations or 
protection. The primary constituent elements for the piping plover 
wintering habitat are those habitat components that are essential for 
the primary biological needs of foraging, sheltering, and roosting, and 
only those areas containing these primary constituent elements within 
the designated boundaries are considered critical habitat. The primary 
constituent elements are found in coastal areas that support intertidal 
beaches and flats (between annual low tide and annual high tide) and 
associated dune systems and flats above annual high tide. Section 7 of 
the Act requires Federal agencies to ensure that actions they 
authorize, fund, or carry out are not likely to adversely modify 
designated 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.

DATES: This final rule is effective August 9, 2001.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Ecological Services Field 
Office, TAMUCC, Box 338, 6300 Ocean Drive, Corpus Christi, Texas, 
78412. You may view the complete file for this rule, by appointment, 
during normal business hours at the above address. Copies of the final 
economic analysis and information regarding this critical habitat 
designation are available on the Internet at http://plover.fws.gov.

FOR FURTHER INFORMATION CONTACT: Allan Strand, Acting Field Supervisor, 
at the above address (telephone 361/994-9005; facsimile 361/994-8262; 
email [email protected]).

SUPPLEMENTARY INFORMATION:

Background

Description

    The piping plover (Charadrius melodus), named for its melodic 
mating call, is a small, pale-colored North American shorebird. It 
weighs 43-63 grams (1.5-2.25 ounces) and is 17-18 centimeters (cm) 
(about 8 inches) long (Haig 1992). Its light sand-colored plumage 
blends in well with beaches and sand flats, part of its primary 
habitat. During the breeding season, the legs are bright orange, and 
the short stout bill is orange with a black tip. There are two single 
dark bands, one around the neck and one across the forehead between the 
eyes. Plumage and leg color help distinguish this bird from other 
plovers. In winter, the bill turns black, the legs remain orange but 
pale, and the black plumage bands on the head and neck are lost. Chicks 
have speckled gray, buff, and brown down, a black beak, orange legs, 
and a white collar around the neck. Juveniles resemble wintering adults 
and obtain their adult plumage the spring after they fledge (Prater et 
al. 1977).

Range and Biology

    Piping plovers breed in three discrete areas of North America: The 
Northern Great Plains, the Great Lakes, and the Atlantic Coast. The 
Northern Great Plains population historically bred from Alberta to 
Ontario, Canada, south to Kansas and Colorado. While Great Lakes 
breeding sites once ranged throughout the Great Lakes region, recent 
nesting records are limited to Michigan and Wisconsin. Atlantic Coast 
breeding sites are found from Newfoundland, Canada, south to North 
Carolina. Generally, piping plovers favor open sand, gravel, or cobble 
beaches for breeding. Breeding sites are generally found on islands, 
lake shores, coastal shorelines, and river margins.
    Piping plovers winter in coastal areas of the United States from 
North Carolina to Texas. They also winter along the coast of eastern 
Mexico and on Caribbean islands from Barbados to Cuba and the Bahamas 
(Haig 1992). The international piping plover winter censuses of 1991 
and 1996 located only 63 percent and 42 percent of the estimated number 
of breeding birds, respectively (Haig and Plissner 1993, Plissner and 
Haig 1997). Of the birds located on the United States wintering grounds 
during these two censuses, 89 percent were found on the Gulf Coast and 
8 percent were found on the Atlantic Coast. Information from 
observation of color-banded piping plovers indicates that the winter 
ranges of the breeding populations overlap to a significant degree. 
Therefore, the source breeding population of a given wintering 
individual cannot be determined in the field unless it has been banded 
or otherwise marked.
    Piping plovers begin arriving on the wintering grounds in July, 
with some late-nesting birds arriving in September. A few individuals 
can be found on the wintering grounds throughout the year, but 
sightings are rare in late May, June, and early July. Migration is 
poorly understood, but most piping plovers probably migrate non-stop 
from interior breeding areas to wintering grounds (Haig 1992). However, 
concentrations of spring and fall migrants have been observed along the 
Atlantic Coast (USFWS 1996).
    Behavioral observations of piping plovers on the wintering grounds 
suggest that they spend the majority of their time foraging (Nicholls 
and Baldassarre 1990b; Drake 1999a, 1999b). Primary prey for wintering 
plovers includes polychaete marine worms, various crustaceans, insects, 
and occasionally bivalve mollusks (Nicholls 1989; Zonick and Ryan 
1995), that they peck from on top or just beneath the surface. Foraging 
usually takes place on moist or wet sand, mud, or fine shell. In some 
cases, this substrate may be covered by a mat of blue-green algae. When 
not foraging, plovers can be found roosting, preening, bathing, in 
aggressive encounters (with other piping plovers and other species), 
and moving among available habitat locations (Zonick and Ryan 1996).
    The habitats used by wintering birds include beaches, mud flats, 
sand flats, algal flats, and washover passes (areas where breaks in the 
sand dunes result in an inlet). Individual plovers tend to return to 
the same wintering sites year after year (Nicholls and Baldassarre 
1990b, Drake 1999a). Wintering plovers are dependent on a mosaic of 
habitat

[[Page 36039]]

patches, and move among these patches depending on local weather and 
tidal conditions. One study by Drake (1999a) monitored the movement of 
48 piping plovers in south Texas, for one season. She found, using 95% 
of the documented locations, that these birds had a mean home range of 
1,262 ha (3,117 ac). Drake (1999) also noted that the mean linear 
distance moved per individual bird was 3,294 m (2 mi) for the fall 
through the spring of 1997-1998.
    In late February, piping plovers begin leaving the wintering 
grounds to migrate back to breeding sites. Northward migration peaks in 
late March, and by late May most birds have left the wintering grounds 
(Eubanks 1994).

Population Status

    In recent decades, piping plover populations have declined 
drastically, especially in the Great Lakes area. In the early 1900s, 
uncontrolled hunting drove them nearly to extinction. Protective 
legislation helped them to recover by 1925, and populations reached a 
high in the 1930s (USFWS 1994). These numbers soon plummeted, and 
numbers continued to decline in the 1940s and 1950s as shoreline 
development expanded, resulting in the loss of plover breeding habitat. 
River flow alteration, channelization, and reservoir construction have 
also led to loss of breeding habitat.
    In 1973, the piping plover was placed on the National Audubon 
Society's Blue List of threatened species. By that time, the Great 
Lakes population of piping plovers had been extirpated from shoreline 
beaches in Illinois, Indiana, Ohio, New York, Pennsylvania, Minnesota, 
and Ontario, Canada, and only a few birds continued to nest in 
Wisconsin (Russell 1983) and Michigan. The Canadian Committee on the 
Status of Endangered Wildlife in Canada designated the piping plover as 
``Threatened'' in 1978 and elevated the species'' status to 
``Endangered'' in 1985 (Canadian Wildlife Service 1989). At the time 
the species was listed under the Act in 1985, the Great Lakes 
population numbered only 17 known breeding pairs, and the breeding 
areas had been reduced from sites in eight States to only northern 
Michigan (Stucker and Cuthbert, unpublished data). In recent years, the 
Great Lakes population has gradually increased and expanded to the 
south and west as a result of intensive conservation measures. Recent 
increases in the Atlantic Coast breeding population have also been 
attributed to intensive management of nesting beaches. While overall 
the Atlantic Coast population is increasing, increases are regionally 
variable with some areas experiencing declining populations. Breeding 
census results show a marked decline of the population breeding in the 
Northern Great Plains of the United States (Plissner and Haig 1997).
    Overall winter habitat loss is difficult to document; however, a 
variety of human-caused disturbance factors have been noted that may 
affect plover survival or utilization of wintering habitat (Nicholls 
and Baldassarre 1990a, Haig and Plissner 1993). These factors include 
recreational activities (motorized and pedestrian), inlet and shoreline 
stabilization, dredging of inlets that can affect spit (a small point 
of land, especially sand, running into water) formation, beach 
maintenance and renourishment (renourishing the beach with sand that 
has been lost to erosion), and pollution (e.g., oil spills) (USFWS 
1996). The peer-reviewed, revised recovery plan for the Atlantic piping 
plover population recognizes the need to protect wintering habitat from 
direct and indirect impacts of shoreline stabilization, navigation 
projects, and development. Adult survivorship over the wintering period 
plays a significant role in maintaining current populations and in 
accomplishing increases in population levels required to achieve 
recovery.

Previous Federal Actions

    On December 30, 1982, we published a Notice of Review in the 
Federal Register (47 FR 58454) that identified vertebrate animal taxa 
being considered for addition to the List of Threatened and Endangered 
Wildlife. The notice included the piping plover as a Category 2 
Candidate species, indicating that we believed the species might 
warrant listing as threatened or endangered, but that we had 
insufficient data to support a listing at that time. Subsequent review 
of additional data indicated that the piping plover warranted listing, 
and in November 1984, we published a proposal to list the piping plover 
as endangered (Great Lakes breeding population) and threatened (all 
other piping plovers, including all birds on non-breeding areas) in the 
Federal Register (49 FR 44712).
    The proposed listing was based on the decline of the species and 
the magnitude of existing threats, including habitat destruction, 
disturbance by humans and pets, high levels of predation, and 
contaminants. On December 11, 1985, we published the final rule (50 FR 
50720), 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 elsewhere within its range. The listing includes piping 
plovers breeding in Canada, with their status under the Act determined 
by whether they breed in the watershed of the Great Lakes (endangered) 
or elsewhere (threatened). 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.
    In 1986, two U.S. recovery teams were appointed to develop recovery 
plans for the piping plovers breeding in the Atlantic Coast States and 
those breeding in the Great Lakes/Northern Great Plains region. We 
published those plans in 1988 (USFWS 1988a, 1988b). In 1994, we began 
to revise the plan for the Great Lakes/Northern Great Plains plovers by 
developing and distributing for public comment a draft that included 
updated information on the species. More recently, we decided that the 
recovery of these two regional populations would benefit from separate 
recovery plans that would direct separate recovery programs. Separate 
recovery plans for the Great Lakes and Northern Great Plains piping 
plovers are presently under development. The recovery plan for the 
Atlantic Coast-breeding plovers was revised in 1996 (USFWS 1996). We 
exchange observers and coordinate recovery activities with two Canadian 
recovery teams, with a strong focus on protection of the wintering 
habitat shared by piping plovers breeding in both countries.
    In December 1996, Defenders of Wildlife (Defenders) filed a lawsuit 
against the Department of the Interior and the Service for failing to 
designate critical habitat for the Great Lakes population of the piping 
plover. Defenders filed a second, similar lawsuit for the Northern 
Great Plains piping plover population in 1997. These lawsuits were 
subsequently combined (Defenders of Wildlife et al. v. Bruce Babbitt et 
al., Consolidated Cases Civil No. 1:96-CV-02695AER and Civil No. 1:97-
CV00777AER). In February 2000, the court issued an order directing us 
to publish a proposed critical habitat designation for the Great Lakes 
population of the piping plover by June 30, 2000. Publication of a 
proposal for nesting areas of the Northern Great Plains population of 
piping plover by May 31, 2001, was also ordered. Since we cannot 
distinguish the Great Lakes and Great Plains birds on their wintering 
grounds, we felt it was appropriate to propose critical habitat for all 
U.S.-wintering piping plovers collectively. Further, we determined

[[Page 36040]]

that the appropriate course of action would be to propose critical 
habitat for all U.S.-wintering piping plovers on the same schedule 
required, under court order, for the Great Lakes breeding population. A 
subsequent order, after requesting the court to reconsider its original 
order relating to final critical habitat designation, directed 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. On May 7, 2001, we published a notice in 
the Federal Register (66 FR 22983) announcing a 60-day delay, until 
June 29, 2001, in making our final determination of critical habitat 
for the wintering piping plover. The notice explained that we needed 
additional time to complete our analyses required under section 4(b)(2) 
of the Act.
    We published our proposed designation of critical habitat for 
wintering piping plovers in the Federal Register on July 6, 2000 (65 FR 
41782), and requested comments on the proposal by September 5, 2000. We 
held 10 public hearings and 10 public meetings on the proposed rule in 
Wilmington, North Carolina, on July 17, 2000; Savannah, Georgia, on 
July 19, 2000; Tallahassee, Florida, on July 21, 2000; Fort Myers, 
Florida, on July 24, 2000; Mobile, Alabama, on July 26, 2000; Baton 
Rouge, Louisiana, on July 27, 2000; Galveston, Texas, on July 31, 2000; 
Corpus Christi, Texas, on August 2, 2000; McAllen, Texas, on August 4, 
2000; and South Padre Island, Texas, on November 14, 2000. We held 
additional public meetings in Morehead City, North Carolina, on August 
16, 2000; in Manteo, North Carolina, on August 17, 2000; Marco Island, 
Florida, on October 10, 2000; and Rio Hondo, Texas, on August 23, 2000.
    On August 30, 2000 (65 FR 52691), we published a notice in the 
Federal Register extending the public comment period to October 30, 
2000, and announced the availability of the draft economic analysis. On 
October 27, 2000 (65 FR 64414), we again published a notice in the 
Federal Register extending the public comment period until (November 
24), 2000, and provided notice of a tenth public hearing on the 
proposed rule. On February 22, 2001 (66 FR 11134), we reopened the 
comment period until March 1, 2001, to allow for additional comments to 
be incorporated into the record and allow for us to base our final 
decision on the best scientific and commercial information available.

Summary of Comments and Recommendations

    As mentioned above, we requested all interested parties to submit 
comments or information that might bear on the designation of critical 
habitat for wintering piping plovers (65 FR 41782). We contacted all 
appropriate State and Federal agencies, Tribes, county governments, 
scientific organizations, and other interested parties and invited them 
to comment. In addition, we published newspaper notices inviting public 
comment and announcing the public hearings in the following 
newspapers--Wilmington Morning Star in North Carolina; Charleston Post 
and Courier in South Carolina; Savannah Morning News in Georgia; 
Florida Times Union, Tallahassee Democrat, Fort Myers News Press, Key 
West Free Press, St. Petersburg Times, Panama City News Herald, and 
Pensacola News Journal in Florida; Mobile Register, Alabama; Biloxi The 
Sun Herald, Mississippi; New Orleans Times Picayune and Baton Rouge The 
Advocate in Louisiana; and the Houston Chronicle, Galveston Daily News, 
Port Arthur News, Texas City Sun, Brownsville Herald, Corpus Christi 
Caller-Times, The Monitor (distributed from Rio Grande City to South 
Padre Island), and the Facts (Brazosport) in Texas.
    We held 10 public hearings on the proposed rule (see ``Previous 
Federal Action'' section above for dates and locations). Transcripts of 
these hearings are available for inspection (see ADDRESSES section).
    We received a total of 6,013 comments (counting both written and 
oral comments) from individuals, agencies, and organizations, plus one 
petition containing 537 signatures. Of these comments, 5,800 commenters 
and the petition were specific to the designation proposed for Marco 
Island, Florida. Of the Marco Island comments, 44 commenters and 537 
signatories to the petition favored the designation as proposed, 5,736 
opposed designation on Marco Island, and 20 supported a revised 
designation or only provided information relative to the proposal. 
There were 213 commenters who were not specific to Marco Island. Of 
those, 85 favored the designation, 94 opposed it, and 34 did not state 
a position but provided information.
    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and wintering piping plovers. Some 
comments resulted in changes between the proposed and final 
designations, and those comments are discussed in the ``Summary of 
Changes From the Proposed Rule'' section of this document. We address 
the rest of the substantive comments in the following summary. For 
readers' convenience we have assigned comments to major issue 
categories. Repeated or very similar comments are combined into single 
comments and responses.

Issue A: General Biological Comments

    A number of commenters touched on biological issues surrounding the 
piping plover.
    Comment 1: The Service's Southeast Region Home Page cites habitat 
loss due to navigation, dredging, and shoreline stabilization and 
replenishment projects as major contributors to the species' decline. 
That statement is unsupported in the literature. Piping plovers are 
extremely mobile and thrive in a changing environment. The cited 
activities do not adversely impact wintering piping plovers.
    Our Response: We disagree with the statement made by the commenter. 
The commenter is referring to our website at http://plover.fws.gov, 
that describes the life history and threats of the piping plover 
throughout its range. Dredging projects and shoreline manipulations in 
wintering areas can have an effect on the bird's food base, and result 
in permanent habitat loss and direct disturbance of individual birds. 
We already consult with Federal agencies that fund or carry out 
projects involving dredging, beach nourishment, and other shoreline 
stabilization activities, most notably with the Army Corps of 
Engineers, because of the effect of such projects on piping plover 
habitat. The purpose of many shoreline stabilization projects is the 
prevention of overwash processes (the method by which sediment (sand) 
is transported across a barrier island) that form inlets and perpetuate 
sand and mud flats. As sand and mud flats are identified as critical 
habitat for the plover, there is a connection between these activities 
and the formation and maintenance of habitat for the plover. Zonick's 
(2000) dissertation similarly highlights the importance of preserving 
``washover pass'' habitat in Texas. Zonick (2000) found that washover 
passes are used by piping plovers both as feeding and roosting areas. 
Washover areas are created by the flow of water through the primary 
dune line with deposition of sand on the barrier flats, marsh, or into 
the lagoon, depending on the storm magnitude and the width of the 
beach. Additionally, the peer-reviewed revised recovery plan for the 
Atlantic piping plover population recognizes the need to protect 
wintering habitat from direct and indirect impacts of shoreline 
stabilization, navigation projects, and

[[Page 36041]]

development. In general, through our consultations with other Federal 
agencies, we have found that these activities can be timed and designed 
to minimize effects on piping plovers.
    Comment 2: Army Corps of Engineers projects are designed to avoid 
and minimize impacts to listed species and, where feasible, features to 
promote species conservation are included in projects. Corps of 
Engineers dredged material disposal benefits plovers by providing 
foraging habitat. These benefits should have been discussed in the 
proposal.
    Our Response: We stated in the proposed rule that ``Several of 
these components (sparse vegetation, little or no topographic relief) 
are mimicked in artificial habitat types used less commonly by piping 
plovers (e.g., dredge spoil sites).'' Nicholls (1989) documented that 
piping plovers were observed on spoil areas 6 percent of the time and 
on sandflats 27 percent of the time. Her survey coverage included 2,705 
km (1,680 mi) of coastline along portions of nine states from Virginia 
to Texas. Spoil sites do not seem to be the preferred habitat for the 
piping plover, although when more suitable habitat is lacking, spoil 
sites do create some habitat for these birds. We appreciate the Corps' 
efforts to promote species conservation through design feature 
modification of projects.
    Comment 3: Project delays related to the critical habitat 
designation for wintering piping plovers, when added to already-narrow 
windows imposed by protection of other threatened and endangered 
species such as sea turtles, seabeach amaranth, and beach mice, may 
affect the Corps of Engineers' ability to conduct mission-related 
activities.
    Our Response: Since the species was listed in 1986, the Corps of 
Engineers has been subject to the consultation requirements of the Act, 
including analyzing the potential effects on the species habitat. 
Timing of projects has been considered in consultations conducted under 
the jeopardy standard since listing, and, in general, we have found 
that projects can be timed and designed to minimize effects on piping 
plovers.
    Comment 4: The causes for piping plover declines are unclear, but 
it is likely any declines are a result of threats to breeding areas 
rather than wintering habitat. Threats to wintering habitat are not 
discussed, nor are any declines in habitat acreage documented. 
Accordingly, how can the designation possibly benefit wintering piping 
plovers?
    Our Response: Historically, plovers were decimated by unregulated 
hunting. The major present-day threats are largely on breeding areas, 
but wintering habitats are also essential to the conservation of this 
species. Adult survivorship over the wintering period plays a 
significant role in maintaining current populations and in 
accomplishing increases in population levels required to achieve 
recovery. In the face of current and foreseeable continued coastal 
development and increased recreational use, less suitable habitat may 
be available each year for piping plover recovery. Therefore, we have 
designated the areas that have consistent plover use and best meet the 
biological needs of the species. The amount of wintering habitat 
included in this designation appears sufficient to support future 
recovered populations, and the existence of this habitat is essential 
to the conservation of this species. In addition, the designation 
benefits species conservation by alerting public and private entities 
to the importance of wintering habitat.
    Comment 5: Comments were received that questioned the relative use 
of a specific area compared to the overall population abundance. Of the 
50 percent of piping plovers accounted for in the 1996 census, only 8 
percent were documented on the Atlantic Coast. How can the Atlantic 
Coast be considered essential to the species' conservation?
    Our Response: We have determined that most sites with consistent 
occurrence of piping plovers should be designated as critical habitat 
in order to provide for the recovery of the species. There are an 
estimated 32 pairs remaining of the endangered Great Lakes breeding 
population of piping plovers. Current data shows that Atlantic Coast 
sites are even more important to the Great Lakes piping plovers than 
those on the Gulf Coast. Of the 39 individuals from the Great Lakes 
population sighted on the wintering ground between 1993 and spring of 
2000, 26 (67%) were in South Carolina, Georgia, or the Atlantic Coast 
of Florida (Wemmer 2000). Thus, we consider the Atlantic Coast to be 
essential to the recovery of the piping plover.
    Comment 6: In basing the critical habitat designation on 
observational data, the proposal is biased toward areas most frequently 
visited by bird watchers and other beach users. Meanwhile, many areas 
with restricted access but likely containing excellent habitat were not 
proposed. Given that situation and the fact that 50 percent of 
wintering plovers are unaccounted for, how can the Service say the 
proposed areas are essential for this species?
    Our Response: We believe the effect of observational bias is 
minimal because ornithologists and birders are persistent about seeking 
out birds. Data we received from state biologists documented surveys of 
the entire coastlines in many states. Some geographic data provided 
from the 1991 and 1996 International Censuses show that a large area of 
the coastline is not used by the birds. Only sites where plovers have 
been observed were included in the critical habitat designation.
    Comment 7: One-hundred-forty-seven areas are proposed as critical 
habitat. How could failure to designate any one of these areas lead to 
extinction of the piping plover?
    Our Response: The criterion for critical habitat designations is 
not whether the sites are essential to prevent extinction; it is 
whether the sites are essential to the conservation of the species and 
may require special management consideration or protection. 
Conservation means the use of all methods and procedures that are 
necessary to bring an endangered or threatened species to the point at 
which listing under the Act is no longer necessary (i.e., recovered). 
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.
    There are an estimated 32 pairs remaining of the endangered Great 
Lakes breeding population of piping plovers and data show that this 
population uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer 
2000). Therefore, identification of essential habitat should not rule 
out any sites where piping plovers consistently over-winter, since 
these sites may be used by the highly endangered Great Lakes 
population. We have determined that most sites with consistent 
occurrence of piping plovers should be designated as critical habitat 
in order to provide for the recovery of the species.
    Comment 8: The Service should define ``wintering.'' Does the 
designation include migrating piping plovers?
    Our Response: We define ``wintering'' as areas used by birds during 
the non-breeding season. Piping plovers begin arriving on the wintering 
grounds in July, with some late-nesting birds arriving in September. A 
few individuals can be found on the wintering grounds throughout the 
year, but sightings are rare in late May, June, and early July.

[[Page 36042]]

    This designation did not distinguish migrating birds; however, some 
areas designated as wintering habitat are also used by migrating and 
breeding birds in North Carolina and South Carolina. Migration is 
poorly understood, but it appears that inland birds may fly non-stop to 
Gulf coast sites (Haig 1992). It is believed that the Atlantic 
population follows a narrow strip along the Atlantic coast during 
spring and fall migration with some crossover to Gulf Coast wintering 
areas (USFWS 1996).
    Comment 9: The international censuses provide only a snapshot of 
mid-winter distribution and abundance, but tell little about seasonal 
variation in habitat use and plover movements. While many plovers 
appear relatively sedentary, observations at certain sites in North 
Carolina (McConnaughy et al. 1990) and Texas (Eubanks 1994) have 
reported large numbers during or prior to migration. These staging and 
migratory stopover areas may be particularly critical for migratory 
shorebirds (Myers 1983; Skagen and Knopf 1993) and should be included 
as critical habitat.
    Our Response: As stated above, migration is poorly understood, but 
it appears that inland birds may fly non-stop to Gulf Coast sites (Haig 
1992). Based on McConnaughy's study, some areas are used as staging or 
stopover areas, and we have included those areas in the designation 
when we have survey data to support consistent piping plover use. It is 
believed that the Atlantic population follows a narrow strip along the 
Atlantic coast during spring and fall migration from the Gulf coast 
(USFWS 1996). The sites that McConnaughey et al. (1990) documented in 
North Carolina as having relatively high numbers of plovers observed 
during migration are within the designated critical habitat units. The 
sites identified by Eubanks (1994) in Texas are not consistently used 
and were not included in the designation.
    Comment 10: The Louisiana coast is remote and not subject to 
extensive human presence. Further, there is no documentation that 
Louisiana supports a significant portion of the wintering plover 
population. Designation of over 1 million acres can only be considered 
excessive.
    Our Response: We agree that human development is not as great a 
threat along Louisiana's coasts as it is in other areas within the 
plover's wintering range. We disagree however, that there is no 
documentation that Louisiana supports a significant portion of the 
wintering plover population. The International Piping Plover Surveys 
have consistently identified Louisiana as having the second highest 
numbers of wintering piping plovers after Texas. Since publication of 
the proposed rule we were able to conduct surveys in the remote deltas 
of Louisiana, where access is difficult. Based on the results of these 
surveys, we refined our critical habitat designation to the maximum 
extent possible to include only those areas having documented use by 
piping plovers. This has resulted in less acreage being designated in 
Louisiana.
    Comment 11: No data were presented to show that piping plovers 
exhibit site fidelity and cannot simply move to other areas if an area 
is destroyed.
    Our Response: Johnson and Baldassarre (1988) found relatively high 
site fidelity for plovers wintering in the Mobile Bay area in Alabama. 
The revised recovery plan for the piping plover Atlantic coast 
population noted several reports of banded birds returning year after 
year to the same wintering sites on both the Atlantic and Gulf coasts 
(S. Bogert, pers. comm. 1988; T. Below, National Audubon Society, pers. 
comm. 1988; T. Eubanks, pers. comm. 1989; Zonick and Ryan 1993; J. 
Fussell, pers. comm. 1995). Wemmer (2000) presents information on 
intra- and inter-year site fidelity for Great Lakes plovers, which 
documents one bird that has been observed during 9 of 11 winters since 
1988 at Marco Island, Florida.
    Comment 12: Comments have been received expressing concerns with 
the size of designated areas. Most think that the designated areas are 
too large; a few think that the units are not large enough, thereby not 
allowing for changes that occur during known dynamic coastal processes.
    Our Response: As described in the ``Methods'' section of this rule, 
in the proposed rule, a single buffer distance was set for all units in 
all states (500 m (1,640 ft)). This buffering methodology resulted in 
areas of water (deeper than mean lower low water (MLLW)) and areas of 
dense vegetation being included in the designation, which are not 
utilized by piping plovers. MLLW is defined as the average of the lower 
low water height of each tidal day observed over the National Tidal 
Datum Epoch. In the final rule, we abandoned this methodology for a 
more precise means of defining the areas that contain the physical and 
biological features essential to the wintering piping plover. This 
change in methodology results in smaller units of designated critical 
habitat than that of the proposed rule. We also removed developed areas 
from mapped units where possible. (See our response to comments under 
``Issue G: Mapping and Primary Constituent Elements.'').
    In order to capture the dynamic nature of the coastal habitat and 
the intertidal areas used by the piping plover, we have textually 
described each unit as including the area extending out from the 
landward boundaries to the MLLW. Designating specific locations for 
critical habitat for the piping plovers is difficult because the 
coastal areas they use are constantly changing due to storm surges, 
flood events, and other natural geo-physical alterations of beaches and 
shorelines. Thus, to best insure that areas considered essential to the 
piping plover will remain in the designation over time, our textual 
unit descriptions will constitute the definitive determination as to 
whether an area is within the critical habitat boundary. Our textual 
unit descriptions describe the geography of the area using reference 
points, include the areas from the landward boundaries to the MLLW, 
which encompasses intertidal areas that are essential foraging areas 
for piping plovers, and may describe other areas within the unit that 
are utilized by the piping plover and contain the primary constituent 
elements (e.g., upland areas used for roosting and wind tidal flats 
used for foraging).
    Comment 13: Requests have been made to modify specific units in 
order to avoid areas where existing and future projects are planned or 
may occur.
    Our Response: Critical habitat is designated on the basis of 
scientific data, but areas may be excluded on the basis of economic 
impact or any other relevant impact if the Secretary determines that 
the benefits of exclusion outweigh the benefits of specifying such 
areas as critical habitat. We may not exclude areas if such exclusion 
will result in the extinction of the species. While the final Economic 
Analysis identifies some impacts following this critical habitat 
designation, this consultation activity is largely attributable to the 
listing. This is based on the fact that all the designated critical 
habitat units have documented use by piping plovers and planned 
projects are currently subject to the regulatory provisions of section 
7(a)(2) and section 9 of the Act due to the listing of the piping 
plover. See the ``Economic Analysis'' and the ``Exclusions Under 
4(b)(2) of the Act'' sections of this rule.
    Comment 14: Many commenters have asked why we do not designate 
areas that are not heavily used and inaccessible by man, therefore more 
ideal for piping plovers.

[[Page 36043]]

    Our Response: We have designated areas with consistent 
documentation of piping plover use. This includes both areas heavily 
used and inaccessible by man. Many inaccessible areas do not have the 
primary constituent elements needed by plovers. Piping plovers choose 
areas that meet their physical and biological needs. Plovers exhibit a 
certain amount of site fidelity and were using many of these places 
before they became developed.
    Comment 15: Commenter states that literature (Nicholls Baldassarre 
1990b) seems to suggest that people and off-road vehicles preclude 
piping plovers from occupying wintering sites. There are beaches where 
piping plovers and beach users successfully cohabit. Studies cited in 
the recovery plan do not provide conclusive scientific data on whether 
or not human-caused impacts influence wintering piping plovers.
    Our Response: Section 4 of the Act requires us to base our critical 
habitat designations on the best available scientific information. We 
note that there are several studies documenting the effects of human 
presence on the behavior of birds. Bird species vary in their response 
to human disturbances (pedestrian and vehicular) (Rodgers and Smith 
1997). On the breeding grounds piping plovers elicit a significantly 
higher response to humans than to potential predators or non-predator 
species (Flemming et al. 1988). Rodgers and Smith (1997) documented 
that shorebirds are more easily flushed than other species of coastal 
birds. This may be because shorebirds on the wintering grounds are 
migrant species that rarely interact with humans. Elliott and Teas 
(1996) evaluated direct and indirect measures of the effects of human 
disturbance on piping plovers in Texas. Piping plovers (breeding and 
wintering) not encountered by humans spend more time foraging and less 
time in active nonforaging behavior (Elliott and Teas 1996; Burger 
1991). Zonick and Ryan (1996) documented in Texas that beach vehicular 
density and piping plover abundance were negatively associated. On the 
breeding grounds, the effects of people have caused increased shifts in 
habitat use and decreased foraging time with more time devoted to 
alertness (Burger 1991; Staine and Burger 1994).
    Increased human disturbance increases energy expenditure by birds 
and reduces their food intake (Belanger and Bedard 1990). Whether this 
is enough to affect their maintenance of fat reserves for long-range 
migration or to maintain adequate body temperatures under cooler winter 
conditions is unknown. If the level of disturbance is high enough, 
piping plovers may be forced to move to less optimal habitat (Elliott 
and Teas 1996). We do not know what effect foraging in marginal areas 
has on the piping plover's ability to survive the winter, and 
successfully reach the breeding grounds, or on reproductive success 
once on the breeding grounds. Studies on the breeding grounds that may 
apply on the wintering grounds show that piping plovers that have 
diverse habitats available for foraging can more easily cope with space 
competition and human disturbances than those with fewer habitats 
(Burger 1994).
    Since the piping plover was listed in 1986, no beach closures have 
occurred due to the presence of piping plovers in their wintering 
range, although in the breeding range (e.g., Plymouth, Massachusetts), 
partial beach closures have occurred to protect chicks and adult piping 
plovers prior to the chicks fledging. Additionally, as stated in our 
response to B.18, we believe that the effect of normal human presence 
on piping plovers in their wintering habitat does not have serious 
consequences at the population level, and we do not expect this 
designation to affect recreational beach use.
    Comment 16: Several commenters suggested that certain units (Yent 
Bayou, Marco Island, Unit TX-34 (San Luis Pass), and Rollover Bay and 
surrounding areas) are not essential to the conservation of the species 
and should not be designated as critical habitat.
    Our Response: As required under the Act, we designated critical 
habitat essential for the conservation of the species based on the best 
scientific data available. We identified areas throughout a broad 
geographic coverage along the coast that contained the primary 
constituent elements and where occurrence data indicated a consistent 
use by piping plovers. The essential features found on the designated 
areas may require special management consideration or protection to 
ensure their contribution to the species' recovery. We believe that the 
designated areas are sufficient, and are needed to support piping 
plovers when recovered. We have addressed these areas specifically in 
``Issue B: Site-specific Biological Comments.''
    Comment 17: One commenter questioned the need to designate critical 
habitat in areas where the piping plover does not breed.
    Our Response: This designation is for wintering habitat only. 
Piping plovers spend up to 10 months (83 percent of their lifetime) of 
each year on the wintering grounds. It is, therefore, important to 
insure their biological and physical needs are met on the wintering 
grounds. See also response to A.4.
    Comment 18: Several commenters requested that vast areas of open 
sandy beaches, open water, and heavily vegetated dunes not be 
designated critical habitat and questioned why the designation includes 
areas up to 100 meters offshore.
    Our Response: We disagree with the statement that ``vast'' areas of 
open sandy beaches have been designated as critical habitat. Areas with 
documented piping plover use have been designated. These areas are used 
by piping plovers because they contain the primary constituent elements 
and are essential to the conservation of the species. The primary 
constituent elements are found in geologically dynamic coastal areas 
that support intertidal beaches and flats and associated dune systems 
and flats above annual high tide (i.e., sandy beaches). Because areas 
used by piping plovers are ephemeral habitats, we must consider their 
changing nature over time. As explained in the ``Methods'' section, we 
abandoned the buffering methodology used in the proposed rule and the 
revised textual unit descriptions are now the definitive source of 
determining unit boundaries. This change has resulted in critical 
habitat units that are significantly scaled down in size from what was 
presented in the proposed rule. We also believe that we have captured 
the ephemeral nature of the habitat within these unit descriptions, by 
including areas to MLLW.
    Comment 19: While there may be some sites within the piping 
plover's range that are very remote or logistically difficult to 
survey, only sites with documented occurrence of the species should be 
designated as critical habitat.
    Our Response: Since the initial proposal, we obtained data on 
piping plover occurrences in critical habitat areas where the primary 
constituent elements were present but where we had no piping plover 
occurrence data because the areas were logistically difficult to 
survey. We have subsequently refined our designation to include only 
those areas that contain the primary constituent elements essential for 
the conservation of the species and for that we have known piping 
plover occurrences. See the ``Summary of Changes From the Proposed 
Rule'' section and our response to A.10.

Issue B: Site-specific Biological Comments

    A number of commenters spoke to specific geographical areas of the 
designation.
    Comment 1: Several commenters have recommended the inclusion of

[[Page 36044]]

additional areas in the critical habitat designation and have submitted 
data supporting consistent use of these areas by piping plovers. The 
areas that fall under these criteria in South Carolina include Port 
Royal Mud Flats, Beaufort County. Areas in Florida include Dog Island, 
Franklin County; Big Hickory Island, Lee County; north tip of Anna 
Maria Island, Manatee County; high marsh and salt pans inland of Bunche 
Beach, Lee County (adjacent to Unit FL-25); Cape Haze/Gasparilla Sound 
State Buffer Preserve, Charlotte County; and northeast end of Spanish 
Harbor Keys ``Horseshoe Pit,'' Monroe County. In Alabama, Gulf State 
Park was recommended for inclusion.
    Our Response: We appreciate receiving the additional information. 
We will continue to monitor and collect new information and may revise 
the critical habitat designation in the future if sufficient new 
information supports a change. 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 (see response to E.5). Should new 
information become available to support the need to designate critical 
habitat in other areas, we will consider amending this designation.
    Comment 2: Other areas have been recommended for inclusion, based 
on presence of primary constituent elements; however, no significant 
data on plover occurrence was presented by commenters. Such areas 
recommended in North Carolina include expansion of units 6 and 7 to 
include all of the northern and southern Core Banks area. South 
Carolina areas are Fripp Island (habitat has been riprapped), Morse 
Creek, and St. Phillips Island, Beaufort. The areas in Florida include 
the South tip of Amelia Island, Nassau County; high marsh and salt pans 
of Charlotte Harbor State Buffer Preserve, Charlotte County; Passage 
Key National Wildlife Refuge, Manatee County; north end of Longboat 
Key, Sarasota County; Ft. Pickens, Santa Rosa County; Little Sabine, 
Santa Rosa County; Choctawhatchee Bay, Okaloosa County; Cape St. 
George, Franklin County; St. Marks National Wildlife Refuge, Piney 
Island, Wakulla County; Aucilla Wildlife Management Area, Steinhatchee 
Area, Taylor County; Cedar Key and area, Levy and Dixie Counties; 
Chassahowitzka National Wildlife Refuge, Homosassa Island, Citrus 
County; Siesta and Casey Keys, Sarasota County; Mouth of Peace River, 
Charlotte County; Pine Island and Pine Island National Wildlife Refuge, 
Mound Key, Carl Johnson Park, Lovers Key State Recreation Area, and 
Delnor Wiggins Pass, Lee County; Rookery Bay National Estuarine 
Sanctuary and Kice Island, Collier County; north end of Key Largo and 
other Keys in general, Monroe and Dade Counties; Hobe Sound National 
Wildlife Refuge and Blowing Rocks Preserve, near Jupiter Inlet, Martin 
County; Hutchinson Island, south of Ft. Pierce, St. Lucie County; 
Sebastian Inlet State Park, Pelican Island National Wildlife Refuge, 
Indian River County; Spessard Holland County Park, Brevard County; 
Canaveral National Seashore, Brevard and Volusia Counties; Anastasia 
State Recreation Area, St Augustine Beach to Ft. Matanzas Inlet, St. 
Johns County; Midnight Pass, Sarasota County; Sand Key, Pinellas 
County; St. Andrews State Recreation Area, Bay County; and Port 
Charlotte Beach State Recreation Area, Charlotte County. One area, Sand 
Island, was requested for inclusion in Mississippi. In Alabama, the 
area known as Alabama (also known as Florida) Point and Bon Secour 
National Wildlife Refuge were suggested for inclusion.
    Our Response: No data were provided to support the designation of 
the above areas as critical habitat. Many of these sites have been 
monitored as part of piping plover and other shorebird surveys. No 
consistent use by piping plovers was recorded.
    Comment 3: One commenter noted that observations of piping plovers 
occurred in the following areas during the international censuses, but 
that the areas were not included in the designated units in Texas--
Rachel Site, east of Whites Point, Nueces Bay, Nueces County, 1991; 
Tule Lake, Nueces County, 1996; Redfish Bay area, Nueces County, 1991, 
1996; Aransas Pass/Port Aransas causeway, Nueces County, 1991, 1996; 
Aransas National Wildlife Refuge, Calhoun and Aransas Counties, 1991; 
Aransas Bay/St Charles Bay reefs, Aransas County, 1991; Copano Bay 
bridge, Aransas County, 1991; Texas Point to McFaddin National Wildlife 
Refuge, Jefferson County, 1996 and Christmas Bird Counts.
    Our Response: We appreciate receiving the additional information. 
For the following reasons we did not include these areas in the 
designation. The Rachel Site, east of Whites Pt. in Nueces County was 
not surveyed in 1996, nor is there indication of any surveys taken that 
show piping plovers have been seen at this site. The area has the 
potential habitat for piping plovers, but there has been no data 
reported to support designation of critical habitat. Six piping plovers 
were found in St. Charles Bay in 1991, but the site was not visited in 
1996, and we did not include the area in the designation based upon a 
lack of documentation of consistent use. Although piping plovers were 
present on the margins of spoil islands at the Aransas National 
Wildlife Refuge in Calhoun and Aransas Counties in 1991, none were 
found at either site during the 1996 census, therefore we did not 
include this area in the designation because we lacked documentation of 
consistent use. Only one bird was found in both the 1991 and 1996 
censuses on the Port Aransas causeway. This area was not included due 
to these low numbers, plus the fact that much of the area is made up of 
emergent marsh or mangroves and the primary constituent elements are 
not present for the piping plover. There are no data to support the 
presence of piping plover at the Copano Bay bridge site, and there is 
not much habitat available for the bird except in extreme low tide 
events. The Texas Pt. to McFaddin National Wildlife Refuge in Jefferson 
County is a very highly erosive narrow stretch of beach, and it is 
likely that very few birds would be present. The area of Tule Lake in 
Nueces County was not censussed in 1991, but 8 birds were found in 
1996. This site is highly developed all around, and we determined that 
the characteristics of this area do not provide for the long-term 
essential needs of the piping plover. Redfish Bay in Nueces County 
supported 83 birds in 1991 and 20 birds were seen in 1996. Thus, this 
site could have been proposed for critical habitat designation. 
However, in order to include areas in this final rule, we would have to 
include them in our proposed designation and allow the public an 
opportunity to comment on their inclusion. As we stated in our response 
to Comment B.1 above, we may revise the critical habitat designation in 
the future if sufficient new information supports a change. 
Furthermore, 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.
    Comment 4: One commenter requested to see the data upon which Yent 
Bayou (unit FL-10) was chosen as critical habitat for piping plover 
because their data do not support such a designation. Yent Bayou is a 
good site

[[Page 36045]]

for many shorebirds, but not for piping plover.
    Our Response: We do not agree with the commenter. The 1996 
International Census documented 11 birds; Sprandel et al. (1997) 
documented 12 during the winter of 1993-94; Climo (1998) visited Yent 
Bayou 21 times between 1993 and 1996 and saw an average of 5.1 piping 
plovers per visit.
    Comment 5: At a public workshop, the Service failed to present 
scientific data supporting the inclusion of any portion of Marco Island 
in a critical habitat designation. There is no peer-reviewed published 
scientific literature to indicate that Florida or Marco Island beaches 
are essential to plover recovery.
    Our Response: Although we did not present data at the workshop, 
designation of unit FL-27 at Marco Island was based on ample 
documentation that shoals at the north end of the island are regularly 
used by piping plovers. Individuals with expertise in plover biology 
wrote the piping plover recovery plans. The revised Atlantic Coast and 
Great Lakes populations recovery plans were peer-reviewed and they 
specifically mention Marco Island as essential for conservation of the 
plover. We have also reviewed available information from the 1991 and 
1996 International Censuses (including field reports and notes) and the 
often-substantial data from local birders and ornithologists. Other 
publications used to evaluate Florida habitat included a ``Winter 
Shorebird Survey'' published by the Florida Game and Fresh Water Fish 
Commission (Sprandel et al. 1997), a thesis titled ``A landscape-level 
analysis of piping plover (Charadrius melodus) winter habitat'' by Lisa 
Climo (1998), and a thesis titled ``Distribution and other ecological 
aspects of piping plovers (Charadrius melodus) wintering along the 
Atlantic and Gulf Coasts' by Janice Nicholls (1989). While it would 
always be desirable to have more data, the critical habitat 
designations are based on the best scientific data available.
    Comment 6: Marco Island is unlike other beaches proposed to be 
designated as critical habitat in that it is completely developed.
    Our Response: With the reduction of the FL-27 (Marco Island) unit's 
size from the proposed rule, much of the highly developed areas are no 
longer included in the designation. We believe the new boundaries fully 
cover the areas regularly used by piping plovers and allow for the 
movement of sand bars and tidal flats. In general, if the primary 
constituent elements are present and we make a determination that the 
area is essential for the conservation of the species, the degree of 
development is irrelevant to critical habitat designations, except to 
the extent that there might be economic or other impacts that could 
outweigh the benefits of designating critical habitat. The final 
Economic Analysis did not identify economic impacts at Marco Island 
that suggested that this area should be excluded.
    Comment 7: Marco Island is the northernmost of the Ten Thousand 
Islands. Virtually all of the other islands cannot be developed, so 
they would make ideal plover habitat without interfering with human use 
of beaches on Marco Island. Why was Marco Island (unit FL-27) proposed 
for designation as critical habitat, while other populated areas, such 
as Naples, Florida, were not nor were isolated beaches, such as at 
Keewaydin Island or the 50 miles of the Gulf coast south of Marco 
Island?
    Our Response: The entire coastline of Lee and Collier Counties, 
including Marco Island and the Ten Thousand Islands, has been surveyed 
for shorebirds for many years. Naples lacks an inlet like Big Marco 
Pass, and the Ten Thousand Islands generally lack beaches or mud flats 
suitable for these birds. We have been provided reports of piping 
plovers using several sites near Marco Island, but do not have evidence 
of regular, repeated use that would indicate that they are essential to 
the conservation of the species. There is ample evidence that the 
critical habitat units designated in this rule are regularly used by 
piping plovers, and that other areas, including the coast south of 
Marco Island, are not.
    Comment 8: Designating Marco Island beachfront as critical habitat 
will encourage the Service to create conditions favorable to the 
plover. This will encourage the plover to become established in an 
artificially created area in contrast to its long-term interest of 
using areas of lesser human presence.
    Our Response: While the proposed rule included Marco Island's 
developed beachfront, nearly all of that developed beachfront has been 
excluded from the final rule based on data received during the comment 
period showing that piping plovers do not use that part of the beach. 
With regard to artificially created habitat, designation will not 
automatically require creation of wintering habitat for piping plovers. 
However, if it is possible to improve wintering habitat constituent 
elements as part of a Federal project, we will likely recommend such an 
action.
    Comment 9: Piping plover habitat at Marco Island consisting of the 
intertidal area is ephemeral, has undergone significant changes over 
the last decade as a result of coastal processes and will, consistent 
with prior history, eventually degrade to the point where foraging 
habitat for the plover may no longer exist.
    Our Response: Almost all piping plover wintering habitats are 
dynamic, consisting of beaches and flats that erode, accrete, or change 
position over time. We have included in our textual unit descriptions, 
the definitive legal source on unit boundaries, areas to the MLLW to 
insure that this critical habitat designation adequately captures the 
shifting primary constituent elements of critical habitat.
    Comment 10: The scientific literature has shown that, on the 
wintering grounds, piping plovers generally are restricted to sand 
flats and intertidal areas, not beaches such as on the majority of 
Marco Island. The proposed critical habitat unit FL-27 at Marco Island 
includes large areas, mostly beaches, that are not used by wintering 
piping plovers. The unit should be reduced in size to cover only the 
sand flats and intertidal areas at Sand Dollar Island and Tigertail 
Beach at the north end of the island.
    Our Response: The comment refers to the heavily developed portion 
of Marco Island's beach south of Tigertail Beach, that we now know is 
used little, if at all, by piping plovers. This area was removed from 
the FL-27 critical habitat unit.
    Comment 11: One commenter noted that the boundaries of unit FL-27 
at Marco Island extend far beyond the boundaries of a Critical Wildlife 
Area designated by the Florida Fish and Wildlife Conservation 
Commission to conserve shorebirds, especially breeding ones. Two other 
commenters provided data on piping plover use of the Marco Island area 
and aerial photographs.
    Our Response: We used the survey information and aerial photographs 
in adjusting the boundaries of the FL-27 critical habitat map unit. The 
southern boundary is now at the southern limit of sandbar formation 
since 1952. This southern boundary coincides with the southern boundary 
of the Critical Wildlife Area. The revised northern border of the 
critical habitat map unit includes isolated sand bars that are forming 
from just north of Sand Dollar Island to Coconut Island, but excludes 
Hideway Beach. The landward boundary does not extend inland from the 
vegetation line because this part of the island appears to be 
accreting. The seaward boundary extends only far enough to cover areas 
with sandbars. We believe the new boundaries fully cover the areas 
regularly used by piping

[[Page 36046]]

plovers and for the expected movement of sand bars and tidal flats.
    Comment 12: A few commenters stated that the NC-10 unit needs to 
reflect the continuity of habitat at this site. The narrative does a 
good job of describing the site, which includes the sandy shoal islands 
within the inlet. But the designated areas on the map leave out the 
sandy shoal islands within the inlet. The map should be drawn as one 
contiguous unit.
    Our Response: The sandy shoal islands referred to are northeast of 
the inlet. Trying to include all sandy shoals visible would have made 
NC-10 extremely large. We believe that NC-10 as described in the unit 
description is sufficient for conservation of the species in this area. 
Piping plovers still have protection under the Act whether they are 
within critical habitat or not.
    Comment 13: What effect will the final designation have on 
vehicular access to areas that already allow beach driving within 
critical habitat units?
    Our Response: Only actions involving a Federal agency are regulated 
by critical habitat. On non-Federal lands, beach driving is not 
regulated under the Act unless take of a listed animal is involved. 
Take of a listed animal could be authorized by an incidental take 
permit (ITP) from the Service. An ITP would be required regardless of 
critical habitat if take is involved. The issuance of the ITP is a 
Federal action and the decision to issue the ITP will include an 
evaluation of the effects to critical habitat. In most cases, measures 
to avoid and minimize harm would be incorporated in a habitat 
conservation plan that includes driving.
    For lands under Federal control (National Park Service, Air Force, 
etc.) the managing agency is responsible for ensuring that their 
actions do not jeopardize the continued existence of, or destroy or 
adversely modify critical habitat, of listed species. Often times, the 
managing agency is able to control impacts to listed species from beach 
driving by redesigning routes and beach access points, and by 
temporarily closing off specific areas during critical seasons.
    Comment 14: The critical habitat designations for North Carolina, 
South Carolina, Georgia, and Florida are conservative overall, as 
fairly discrete sites were selected. However, it seems a more 
comprehensive approach was taken for the selection of sites along a 
majority of the Gulf Coast from Alabama to Texas.
    Our Response: Based on comments received, we have refined our 
critical habitat designation to the maximum extent possible to include 
only those areas that have documented consistent use by piping plovers 
and removed all areas that do not have consistent use documentation. 
This was done in order to ensure consistency in the designation of 
critical habitat units for all States. The configuration of habitat 
units differs across the wintering range as a result of basic 
differences in beach morphology throughout the South Atlantic and Gulf 
of Mexico.
    Comment 15: It would be more cost-effective for the Service to 
designate all critical habitat for the Perdido Key and Choctawhatchee 
beach mice as critical habitat for the piping plover, since those 
species are already being monitored.
    Our Response: Designating critical habitat for piping plovers based 
on the existence of critical habitat and monitoring for another listed 
species does not meet our requirements under 50 CFR 424.12(b). In this 
case, critical habitat must be based upon a consideration of the 
physical and biological features essential to the conservation of the 
piping plover.
    Comment 16: One landowner in Louisiana voiced concern that his/her 
property was within proposed critical habitat boundaries even though it 
does not contain piping plover habitat.
    Our Response: We recognize that not all parcels of land within the 
initially proposed critical habitat designation contain the habitat 
components essential to piping plover conservation. Since the initial 
proposal, we have refined our critical habitat maps to exclude, to the 
maximum extent possible, those specific areas that are not currently 
believed to contain the constituent elements of piping plover habitat. 
Areas that do not contain the primary constituent elements, but are 
included in the textual unit descriptions, are not, by definition, 
considered critical habitat.
    Comment 17: Coastal land loss in Louisiana is more important than 
development in affecting critical habitat; the Service should shift its 
focus to fighting coastal land loss.
    Our Response: We agree that coastal land loss is a major factor 
affecting piping plover wintering habitat. We represent the Department 
of the Interior on the Louisiana Coastal Wetlands Conservation and 
Restoration Task Force. That Task Force oversees planning, evaluation, 
funding, and implementation of projects funded under the Coastal 
Wetlands Planning, Protection and Restoration Act. The projects 
approved to date by the Task Force are expected to protect and restore 
nearly 95,000 net acres of coastal wetlands in Louisiana. That, 
however, does not relieve us of our obligation to designate critical 
habitat for the piping plover.
    Comment 18: The designation of piping plover critical habitat on 
Grand Isle, Louisiana, could adversely impact the economy by curtailing 
recreational uses and limiting development of homes and businesses on 
the island.
    Our Response: We have refined our critical habitat unit description 
since the initial proposal to include only those areas of Grand Isle 
that contain the primary constituent elements. On Grand Isle, that 
habitat is found seaward of the hurricane protection levees. We do not 
anticipate the development of homes or business in that area. We 
believe that the effect of normal human presence on piping plovers in 
their wintering habitat does not have serious consequences at the 
population level, and we do not expect this designation to affect 
recreational beach use.
    Comment 19: Uninhabited barrier islands near Grand Isle, Louisiana, 
provide ideal habitat for piping plovers. The Service should work with 
local agencies to restore those islands rather than designate critical 
habitat on Grand Isle.
    Our Response: We agree that some of those islands contain piping 
plover habitat; however, we are required to designate critical habitat 
based on the biological or physical constituent elements essential to 
the conservation of the species. The portions of those islands 
(including Grand Isle) that met those criteria and where survey data 
indicated consistent use by piping plovers were included in critical 
habitat.
    Comment 20: Beach maintenance activities conducted by the Harrison 
County Development Commission (HCDC), Mississippi, are important in the 
overall protection of the seawall and U.S. Highway 90, and in 
maintaining sufficient habitat for piping plovers. HCDC supports the 
critical habitat designation provided it would not prohibit them from 
carrying out their mandate to maintain the beach in Harrison County, 
Mississippi.
    Our Response: We agree that beach maintenance activities are 
important for the protection of seawalls, highways, and piping plovers. 
In general, we have found that beach nourishment activities can be 
timed and designed to minimize effects on piping plovers. We do not 
expect this designation to affect those beach maintenance activities.
    Comment 21: At TX-12 (adjacent to Naval Air Station), the polygon 
provided by the Service for the critical habitat area appears to 
include a small part of the airfield.

[[Page 36047]]

    Our Response: It was impossible to map all sites exactly within the 
time constraints directed by the court to publish the proposed 
designation. Only those areas within the textual unit descriptions that 
contain the essential elements necessary to support the piping plover 
are considered critical habitat.
    Comment 22: We recommend that only land portions of South Bay be 
included in Texas Unit 1 and that the interior of the Boca Chica 
peninsula be excluded. Designation of the entire bay area as critical 
habitat seems excessive.
    Our Response: Only those land portions in South Bay that have the 
piping plover primary constituent elements are considered critical 
habitat. If portions of the land masses that have been designated 
change, either due to natural events such as gradual accretion or 
erosion or storm events, or man-made causes such as the placement of 
dredge material, then these changing areas will be considered critical 
habitat when the primary constituent elements are present. The Boca 
Chica peninsula is an ever-changing land mass with accretion and 
erosion rates that cannot be fixed on a map. Therefore, only those 
areas on the peninsula that contain the primary constituent elements 
(i.e., support the piping plover for roosting and feeding) will be 
considered critical habitat.
    Comment 23: We recommend including less of the interior area of 
South Padre Island (TX unit 3). Known use of these islands by piping 
plovers appears to be concentrated on the beach areas and exposed flats 
of both islands. The inclusion of interior areas appears to be 
inconsistent with the shore areas designated elsewhere along the coast.
    Our Response: There are areas of the interior of South Padre Island 
where piping plovers have been sighted. We included interior areas that 
are not sand, mud, or algal flats, because piping plovers use flats for 
foraging and sparsely vegetated areas for roosting purposes, and these 
areas are also needed for roosting during storms and strong winds.
    Comment 24: We recommend including less of the interior area of San 
Jose Island (TX Unit 18). Known use of these islands by piping plovers 
appears to be concentrated on the beach areas and exposed flats of both 
islands. The inclusion of interior areas appears to be inconsistent 
with the shore areas designated elsewhere along the coast.
    Our Response: San Jose Island is composed of a variety of habitats 
that support the piping plover. Although there are portions that do not 
contain all of the primary constituent elements needed by the plover, 
aerial photographs indicate that piping plover habitat is present on 
San Jose Island. Most of the designated inland areas on San Jose Island 
(TX 15 and TX18) are relict hurricane washover passes, known to be 
preferred piping plover habitat. Thus, it is suitable bayside habitat 
that is somewhat lacking in this portion of the Texas Coast, and we 
have included it in the designation. See our response to B. 23 above 
for a discussion on the importance of interior habitat.
    Comment 25: It appears that potential habitat in south and east 
sides of Galveston Bay has not been included, and should be.
    Our Response: No specific sites were suggested. However, potential 
piping plover habitat exists on the south and east sides of Galveston 
Bay, as well as along the shorelines, flats, beaches, and disposal 
areas throughout Galveston and other Texas bays. Although piping 
plovers are occasionally seen at many of these sites, we have not 
designated areas unless they have consistent piping plover use. Five 
sites on the upper Texas Coast (TX-36, TX-35, TX-34, TX-31, and TX-27) 
have accounted for well over 90 percent of sightings during the 
previous three International Piping Plover Winter Censuses and these 
areas are included in the final designation.
    Comment 26: The piping plovers that occur on the Sunset Lake Park 
area and other natural resources and public use values are already 
protected by an existing conservation easement. The Sunset Lake Park is 
already uniquely protected and preserved as a park under this easement 
and the park use designation by the City. The Act and Migratory Bird 
Treaty Act (MBTA) and the Sunset Lake Conservation Easement already 
provide adequate protection while enabling other compatible park 
recreational uses. Critical habitat designation will not help focus 
conservation activities for the species at Sunset Lake anymore than is 
already available for this public park operated under the existing 
easement.
    Our Response: The conservation easement for Sunset Lake protects 
the body of the lake and the improvements to the natural wildlife 
habitat and sightseeing amendments. The area outside of the lake proper 
where piping plovers have recently been sighted is in the highway 
right-of-way adjacent to the lake. Highway reconstruction or 
improvements may cause direct or indirect impacts to this important 
habitat. The highway right-of-way is outside of the conservation 
easement. In addition, the easement does not provide adequate special 
management for the piping plover which can only be adequately provided 
by a legally operative plan that addresses the maintenance and 
improvement of the primary constituent elements important to the 
species, and manages for the long-term conservation of the species 
(i.e., implements conservation management strategies and provides for 
periodic monitoring). Therefore, the existing special management is 
insufficient to satisfy the requirements of the definition of critical 
habitat. Additionally, the publicity and heightened awareness of a rare 
bird's presence should help to support Sunset Lake's Conservation Plan 
by bringing additional bird-watchers and wildlife enthusiasts to the 
area, potentially creating an increase in economic value of the Sunset 
Lake.
    It is also important to note that a critical habitat designation 
has no effect on situations where a Federal agency is not involved. For 
example, only private actions that involve Federal funding or a Federal 
permit, and where the Federal agency determines that the proposed 
action may affect a listed species or its critical habitat require 
consultation.
    The protection of the piping plover under the MBTA does not in any 
way obviate our duties under the Act with respect to designating 
critical habitat.
    Comment 27: Nothing in the data indicates that piping plovers were 
recorded from the vegetated portions of Unit TX-34. Data supporting the 
designation of vegetated areas within the critical habitat proposal 
does not exist. We request the Service to reconsider its proposed 
designation of Unit TX-34.
    Our Response: TX-34 (San Luis Pass flats and contiguous beach) is 
considered one of five important piping plover aggregation sites on the 
upper Texas Coast. Past winter surveys have found upwards of 20 
wintering birds there. Curt Zonick's (1993) study entitled ``Ecology 
and Conservation of Wintering Piping Plovers and Snowy Plovers,'' 
ranked San Luis Pass second of eight important Texas sites in density 
and fourth in population (average of 33.7 piping plovers). Sparsely 
vegetated areas as described in the ``Primary Constituent Elements'' 
section of this rule are used by the piping plover as roosting habitat 
in this unit.
    Comment 28: Based on the habitat assessment performed on October 
12, 2000, a review of 1995 and 1997 color aerial photographs, and U.S. 
Geological Survey (USGS) 7.5 minute quadrangle maps, most of Unit TX-34 
does not contain the primary constituent elements essential for the 
conservation of wintering piping plovers. At least 17 percent (250 ac) 
of the unit is vegetated and does not provide foraging, roosting,

[[Page 36048]]

or resting habitat. Additionally, the majority of the beach within the 
proposed unit is very narrow and does not provide optimum habitat. The 
majority of the unit north of Highway 3005 consists of open water and 
should not be considered a primary constituent element of critical 
habitat.
    Our Response: See our response to Comment B.27 above. Only those 
areas within the unit boundary, as described in the regulatory section 
of this rule, that provide the primary constituent elements for the 
piping plover are considered critical habitat. The critical habitat 
boundaries, as described in the regulatory section of this rule, stop 
landward where densely vegetated habitat, not used by the piping 
plover, begins and where constituent elements no longer occur.
    Comment 29: The biological information obtained for Unit TX-34 does 
not provide sufficient information supporting the designation of 
critical habitat for piping plover. Only 2 percent of the piping plover 
sightings during the 1991 and 1996 Texas mid-winter surveys were 
recorded from the San Luis Pass area.
    Our Response: While piping plover counts during winter survey 
periods have indeed been low, it should be noted that winter censuses 
have occurred for the most part during extreme low tidal events when 
both beach and tidal pass counts along the entire upper Texas Coast 
were very low. Other informal counts at this site, including a 1992 
Service field study on file at our Clear Lake Field Office, and Curt 
Zonick's definitive 1991-93 study (see our response to Comment B.27 
above) show clearly that this site is consistently used.
    Comment 30: Since the northern Gulf beaches of Unit TX-34 are very 
narrow, and since Zonick and Ryan (1996) demonstrated a positive 
correlation between beach width and piping plover densities, these 
areas should not be included in the critical habitat proposal.
    Our Response: Only those beaches shown to be consistently used by 
piping plovers, according to previous wintering bird censuses, are 
included in the designation.
    Comment 31: A very commendable job has been done in setting aside 
critical habitat areas along the long coast of Texas, but we note what 
appears to be the significant omission of any area near the mouth of 
the Sabine River at the Texas-Louisiana State Line. There should be 
some appropriate beach and dune area between the Bolivar Peninsula and 
the Sabine River. While the west bank of the Sabine is marshland, we 
understand that there is a good area for plovers at or near Sea Rim 
State Park where, for example, plovers were found in both 1997 and 
1998.
    Our Response: While potential habitat exists along this extensive 
beach area, and while piping plovers are occasionally seen along this 
stretch of beach, winter counts and other studies have failed to show 
consistent use here.
    Comment 32: Several commenters requested that Rollover Bay and the 
surrounding area not be designated as critical habitat for the piping 
plover. They feel that Rollover Bay is inconsistent with the Service's 
criteria for critical habitat. Rollover Bay and Pass is a major 
recreational area for the citizens of Texas and other States to enjoy 
fishing, boating, crabbing, and wading. Thousands of visitors come to 
Rollover Bay and Pass annually. The Intracoastal Waterway also crosses 
Rollover Bay. From time to time, the Army Corps of Engineers dredges 
sand from the waterway to renourish the beaches of Bolivar Peninsula, 
in order to keep the waterway open. This is done normally during the 
winter months. At this time the Texas General Lands Office (TGLO) and 
Galveston County are planning to dredge sand from Rollover Bay to 
renourish the beaches at Gilchrist and Caplin. This project will be one 
of the first major nourishment projects in Texas history. This project 
is vital to the above two communities. The Bolivar Peninsula Beaches 
are used during the winter months for citizens to drive and walk along 
hunting sea shells. This is also vital to the economy of their 
communities. Eight miles west of Rollover Bay there are 37 miles of 
beaches, and between High Island and Sabine Pass, thousands of acres of 
wetlands, and wildlife refuges that can be designated as critical 
habitat for the piping plover. They would not be disturbed by the 
public there because there is no highway for the public to get there. 
Highway 87 has been closed off and on for the past 18 years and 
completely for the last 11. We urge the Service to designate that area 
as critical habitat for the wintering piping plovers.
    Our Response: We acknowledge that the Rollover Bay and surrounding 
area are heavily used recreation areas and currently the site of 
important beach habitat restoration activities. The 1991 coast wide 
survey by Texas Parks and Wildlife (Performance Report, Project No. 9.1 
Piping Plover and Snowy Plover Winter Habitat Status Survey (Mitchell, 
Zonick, and Withers)) identified the Rollover Bay flats as holding a 
moderate winter population of piping plovers, an average of 12 birds 
(11, 14, and 12) for 3 survey trips. The average of 1990 through 1996 
Audubon Christmas Bird Count circles that included the Rollover Bay 
area was 13 birds. The 1991, 1996, and 2001 International Piping Plover 
Censuses found very low numbers of birds along the beaches between 
Bolivar Flats and High Island, but these surveys were done by driving 
and did not cover the Rollover Bay area. In summary, the Rollover Bay 
site (TX-37) holds a moderate but consistent wintering piping plover 
population. It is the only site shown to consistently hold wintering 
birds along the Texas coast east of Bolivar Flats (TX-36), and should 
be rated probably the sixth most important upper Texas coast wintering 
site. It should be noted that past section 7 consultations involving 
beach restoration in general, and this site in particular, have 
supported beach restoration activities as improving the quality of 
piping plover habitat in the long term by preserving and protecting 
eroding beach habitat. We have not previously found that normal beach 
recreation activities would significantly affect piping plovers or 
their habitat in these types of areas, and we do not anticipate that 
normal recreation would be restricted as a result of this designation.
    Comment 33: Commenters note that some areas of the Gulf coast were 
not proposed despite the fact that they are not developed and that they 
have all of the primary constituent elements of critical habitat. For 
example, the area between Rollover Pass, Texas, and the Louisiana/Texas 
state line appears to meet the requirements for piping plover wintering 
habitat. Similarly, the Gulf of Mexico shoreline on the last few miles 
of the western end of the Ft. Morgan peninsula, the shoreline of the 
Bon Secour National Wildlife Refuge's Perdue Unit, and other stretches 
of shoreline along the peninsula appear to meet the requirements for 
critical habitat. They question why these and similar shoreline areas 
have not been included in the proposed critical habitat designation. 
They assert that where census data are inadequate to prove consistent 
use by the wintering piping plover, the habitat in question contains 
the physical and biological features essential to the species, and the 
Service should include the area in the designation of critical habitat.
    Our Response: We, and most ornithologists, assume that areas 
consistently holding aggregations of this species are essential to the 
conservation of the piping plovers. Therefore, this designation was 
primarily based on areas of consistent use that contain one or more of 
the primary constituent elements. We did not consider it in the

[[Page 36049]]

best long-term conservation interests of the piping plover to designate 
critical habitat where it is only infrequently known to occur. However, 
should new information become available to support the need to 
designate critical habitat in other areas, we will consider amending 
this designation.
    Comment 34: Commenters request that the Service take under 
consideration the designation of portions of Long Island, Texas, 
located in Cameron County, Texas, as critical habitat for the piping 
plover. They feel that their close proximity to the current designated 
area and the physical and biological features of their island warrant 
serious consideration.
    Our Response: While potential habitat exists along this extensive 
area, and while piping plovers are occasionally seen, survey counts and 
other studies have failed to show consistent populations here and we 
have not been able to conclude that these areas are essential to the 
conservation of the species.
    Comment 35: The burden should be placed on the Service to prove to 
the land owners that their property is piping plover habitat and then 
negotiate with them the protection of the area. Almost the entire 
island from Gulf to Bay, including upland areas in the middle of South 
Padre Island, was designated as critical habitat. That is not fair or 
correct.
    Our Response: The South Padre Island community encourages 
protection of wildlife areas. We do not expect any additional burdens 
placed on landowners, or the need for negotiation for protection of the 
area. Only private activities with Federal sponsorship that may affect 
the piping plover or its critical habitat require the Federal agency to 
consult with us. Although the piping plover's feeding habitat is 
located on mud, sand, and algal flats, upland areas with sparse 
vegetation offer the birds roosting habitat which is also important for 
its survival.
    Comment 36: The spoil island area in Ingleside Cove was not 
included for consideration. It meets the criteria listed in the Federal 
Register for wintering piping plovers: intertidal beaches and flats, 
sand and/or mud flats with no or very sparse emergent vegetation. 
Piping plovers have been sighted in the spoil island area in Ingleside 
Cove Wildlife Sanctuary for many years, and it is possible that they 
may winter on the uninhabited spoil islands that border the Cove. Is 
the area around Ingleside Cove considered designated critical habitat 
for wintering piping plovers? These plovers have been sighted in 
Ingleside Cove Wildlife Sanctuary for many years, and commenters have 
felt that they may winter on the uninhabited spoil islands that abut 
the Cove.
    Our Response: We have not collected any data that indicate piping 
plovers use this area, and since the proposed designation was based on 
known scientific surveys for consistent usage by the birds, we did not 
propose that area as critical habitat. We will, however, attempt to 
survey this site in the future.
    Comment 37: The Cayo del Grullo arm of Baffin Bay and the tidal 
flats along Highway 48 from Highway 100 to where it intersects at 
Highway 48 were left out of the critical habitat designation. Plovers 
can be seen feeding near Vattman Creek near Kaufer-Hubert Memorial 
Park.
    Our Response: Based on surveys performed in these areas, piping 
plovers do not use the areas consistently, and since the proposed 
designation was based on consistent use from known scientific surveys, 
we did not propose these areas for designation.
    Comment 38: One commenter asked if the flats in Alazan Bay are used 
by piping plovers.
    Our Response: We have not located any data to indicate that piping 
plovers use this area, and because the proposed designation was based 
on known scientific surveys for consistent use by the birds, we did not 
designate this area as critical habitat.
    Comment 39: One commenter asked about Powderhorn Lake in Calhoun 
County. The Service owns the Whitmire Unit of Aransas National Wildlife 
Refuge. Those flats are used by lots of shorebirds.
    Our Response: We have not located any data to indicate that piping 
plovers use this area, and because the proposed designation was based 
on known scientific surveys for consistent use by the birds, we did not 
designate this area as critical habitat.
    Comment 40: Many residents of Padre Island oppose making the area 
of Pt. Aransas down to Pt. Mansfield nesting grounds for this or any 
bird species.
    Our Response: This rule is issued to designate critical habitat for 
the wintering population of piping plovers, not nesting piping plovers, 
as these birds nest in the northern parts of the United States and 
Canada.

Issue C: National Environmental Policy Act (NEPA) Compliance

    Some commenters expressed concern about our alleged failure to 
comply with NEPA.
    Comment 1: The Service did not adequately comply with the 
requirements of the National Environmental Policy Act (NEPA). The 
decision to forego preparation of an Environmental Assessment (EA) and 
an Environmental Impact Statement (EIS) is based on reasons published 
in the Federal Register in 1983. Much has happened since 1983, and an 
EIS is required to properly analyze the full range of impacts of the 
designation, including social and economic effects. Contrary to species 
listings, where only the status of the species can be considered, 
critical habitat designation requires consideration of the economic and 
other relevant impacts of the designation. The commenters believe such 
considerations should be subject to a formal public process such as 
NEPA.
    Our Response: The commenter is correct that we determined, for the 
reasons stated in a Federal Register notice published on October 25, 
1983 (48 FR 49244), that neither an EA nor an EIS is required for 
actions taken under section 4(a) of the Act, including designation of 
critical habitat. We believe that the reasons for this determination 
remain valid despite the passing of nearly 18 years since our original 
determination. In addition, the economic impacts of the designation 
were analyzed in the Final Economic Analysis and considered in making 
this final determination. Finally, the public involvement and 
notification requirements under both the Endangered Species Act and 
Administrative Procedure Act provide ample opportunity for public 
involvement in the process.
    Comment 2: Council on Environmental Quality Regulations (50 CFR 
1502.21) state that no material may be incorporated by reference unless 
it is reasonably available for inspection by potentially interested 
parties within the time allowed for comment. The Federal Register 
document (48 FR 49244) referenced in the Service's determination that 
an EA or EIS is not necessary is not reasonably available.
    Our Response: That document, as well as any other information 
supporting this designation, is available by following the instructions 
provided under the FOR FURTHER INFORMATION CONTACT section in both the 
proposed and final rules. We believe this easily-reachable source meets 
the requirements on the availability of supporting information.
    Comment 3: According to a decision in Catron County Board of 
Commissioners v. United States Fish and Wildlife Service, 75 F3d 1429 
(10th Cir. 1996) and Oregon Natural Resources Council v. Lyns, 882 F2d 
1417 (9th Cir. 1989), the Service must prepare an EA on critical 
habitat

[[Page 36050]]

designation. In Catron County, the court noted that the Acts' 
procedures do not displace the NEPA requirements when critical habitat 
is proposed. The Service should follow Catron County, rather than 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), because the 
piping plover wintering critical habitat includes state and private 
lands, not just Federal land.
    Our Response: The Service acknowledges that the Tenth Circuit Court 
of Appeals determined in Catron County that NEPA requirements apply to 
designation of critical habitat. However the Ninth Circuit Court of 
Appeals held in Douglas County v. Babbitt that NEPA does not apply to 
the Service's designation of critical habitat because Congress intended 
that the Act's critical habitat procedures displace the NEPA 
procedures, NEPA is inapplicable to actions that do not change the 
physical environment, and the application of both NEPA and the Act's 
requirements would frustrate both statutes. The Ninth Circuit did not 
limit its decision to cases involving only Federal lands, holding 
instead that the public notice provisions and opportunities for comment 
under the Act's provisions were adequate to serve the NEPA function. 
Our current practice is to require NEPA compliance for designation of 
critical habitat only where the critical habitat designation is located 
within the Tenth Circuit (the states of Colorado, Kansas, Nebraska, New 
Mexico, Oklahoma, Utah, and Wyoming). That is not the case here. The 
decision in Oregon Natural Resources Council v. Lyng dealt with a U.S. 
Forest Service timber sale and is not applicable to the critical 
habitat designation issue.
    Comment 4: While there may be some overlap between the requirements 
of the ESA and NEPA, NEPA requires Federal agencies to look at the 
short- and long-term effects of their actions, as well as cumulative 
effects, which the ESA does not. The public and other Federal agencies 
have raised legitimate concerns that can only be properly analyzed 
through the NEPA process.
    Our Response: We disagree that NEPA is required for this action. We 
believe we have fully considered the relevant impacts of designation, 
as required by the ESA, and have found that these impacts are too 
insignificant to warrant a detailed analysis under NEPA.

Issue D: Legal Issues

    Numerous commenters raised issues pertaining to compliance with the 
Act or with other laws and regulations (excluding NEPA issues).
    Comment 1: Critical habitat may conflict with the public policy of 
the State of Texas, that stresses the need for open access to beaches 
for use by the public. Is this proposal subject to review by the Texas 
Coastal Management Program? There is potential for conflict between the 
designation and the Texas Open Beaches Act.
    Our Response: The designation of critical habitat is not a listed 
activity in the Coastal Management Plan for Texas, and therefore is not 
subject to consistency review. The Coastal Coordination Council does 
have the opportunity to look at impacts to federally listed species and 
their critical habitat when reviewing permit applications and other 
projects.
    Comment 2: In Texas, a mineral owner has unquestioned right to use 
as much of the surface as may be necessary to explore for oil, gas, and 
other minerals. The Federal Government should not pass laws that usurp 
State laws without providing just compensation to those affected.
    Our Response: As stated in the proposed and final rules, we do not 
expect critical habitat designation to result in restrictions beyond 
those that resulted from the species' listing. We, therefore, see no 
conflict with existing State laws governing mineral exploration.
    Comment 3: The court order does not require the Service to 
designate wintering habitat for the piping plover, only that critical 
habitat be designated for the Great Lakes and Great Plains populations.
    Our Response: The commenter is correct in that the court ordered us 
to designate critical habitat for the Great Lakes and Great Plains 
populations of piping plover. As discussed throughout this rule, 
critical habitat includes those areas essential to a species' 
conservation. Piping plovers spend up to 10 months a year on the 
wintering grounds. Wintering grounds provide for an essential part of 
the species' life cycle. Without adequate conservation of wintering 
habitat, recovery of the species would be limited.
    Comment 4: For the proposed rule, the Service drew broad boundaries 
and then excluded areas (e.g., buildings) within those areas. The only 
way to exclude areas from critical habitat is through 4(b)(2) of the 
Act, that requires an affirmative determination that the benefits of 
excluding an area outweigh the benefits of including it as critical 
habitat. No such cost-benefit analysis was provided in the proposal.
    Our Response: Areas designated as critical habitat must meet the 
legal definition of critical habitat provided in this final rule. One 
prong of the definition is that an area must contain the physical or 
biological features essential to the conservation of the species 
concerned. Human-made structures do not contain such features and 
therefore do not meet the definition of critical habitat.
    Comment 5: Critical habitat designation will provide opportunities 
for third parties to sue in order to stop activities like recreational 
use of the beach. In Palila v. Hawaii Department of Land and Natural 
Resources, 639 F. 2d. 495 (9th Cir. 1981), the court issued a mandatory 
injunction to eliminate the State's use of critical habitat in a way 
that was preventing the use of the habitat by the palila.
    Our Response: The primary authority for third parties to sue to 
enjoin activities that harm endangered and threatened species is found 
in the citizen suit provision of the Act, 16 U.S.C. 1540(g)(1), that 
authorizes anyone to file suit to enjoin violations of the Act. Section 
9 of the Act, 16 U.S.C. 1538(a)(1)(B) makes it unlawful for any person 
to ``take'' an endangered or threatened species. The Service's 
regulations define ``take'' as including actions that are likely to 
lead to the death or injury of threatened or endangered wildlife. 
Palila v. Hawaii Department of Land and Natural Resources was a citizen 
suit brought to enjoin the State of Hawaii from ``taking'' an 
endangered species by allowing goats to destroy the species' habitat. 
Neither section 7 consultation nor the designation of critical habitat 
were the basis of the suit. We do not expect that the designation of 
critical habitat for the wintering population of piping plover will 
increase the possibility of third party suits to enjoin use of beaches 
for recreational purposes.
    Comment 6: In Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154 
(1997), the Supreme Court cautioned that the requirement that the 
Service use the best scientific information available serves to 
``ensure that the Act is not implemented haphazardly, on the basis of 
speculation or surmise.'' Although the cited case involved section 7 
consultation, the same caution should be exercised in actions under 
section 4, such as designating over 1,600 miles of shoreline based on 
inconclusive or unavailable data.
    Our Response: We disagree that the critical habitat designation is 
based on inconclusive or unavailable data. The Act requires that our 
decisions be based on the best scientific and commercial information 
available. All areas chosen have documented consistent use by piping 
plovers and are limited to areas within the designated units that 
currently contain the principal

[[Page 36051]]

biological and physical features essential to the piping plover. In 
addition, an estimated 32 pairs remain of the endangered Great Lakes 
breeding population of piping plovers. Data show that this population 
uses both the Atlantic and Gulf Coasts (USFWS 1999; Wemmer 2000). 
Additional areas are likely used by Great Lakes piping plovers, as most 
birds have not been accounted for in winter. Therefore, identification 
of essential habitat should not rule out any sites where piping plovers 
consistently over-winter until the wintering distribution of the Great 
Lakes population can be more accurately defined (USFWS 1999). Based on 
these numbers, as well as other supporting site data, we have concluded 
that most sites with consistent occurrence of piping plovers should be 
designated as critical habitat in order to provide for the recovery of 
the species.
    Comment 7: Commenters called into question our conclusion that the 
designation will not have significant takings implications under the 
Fifth Amendment to the U.S. Constitution. They claim the Service needs 
to address takings implications as per the Supreme Court's rulings in 
such cases as Lucas v. South Carolina Coastal Commission, 505 U.S. 1003 
(1992); Penn Central Transportation Company v. City of New York, 438 
U.S. 104 (1978);. Pennsylvania Coal Company v. Mahon 260 U.S. 393 
(1922); and Dolan v. City of Tigard, 512 U.S. 374 (1994); Nollan v. 
California Coastal Commission, 483 U.S. 825 (1987).
    Our Response: As discussed in our responses to economic comments, 
the economic analysis found that designation of critical habitat would 
have no significant economic effect above that already imposed by 
listing. The primary effect of critical habitat designation on private 
property is to identify areas important for the conservation of the 
species. In addition, if a Federal action occurs on those private 
lands, such as issuance of a Clean Water Act section 404 permit, the 
Federal action agency would be required to consult with us pursuant to 
section 7 of the Act if that action may affect the piping plover, 
regardless of whether that habitat is officially designated critical 
habitat. If such a Federal nexus exists, we will work with the 
landowner and the appropriate Federal agency to ensure that the 
landowner's project can be completed without jeopardizing the species 
or adversely modifying critical habitat. Therefore, we do not believe 
that designation of critical habitat will cause a property owner to be 
deprived of such a substantial use of the property as to amount to a 
Fifth Amendment taking.
    Comment 8: Failure to properly consider the effects of the 
designation through a Takings Implication Assessment violates Executive 
Order 12630.
    Our Response: Executive Order 12630 requires that Federal actions 
that may affect the value or use of private property be accompanied by 
a takings implication assessment. For the reasons discussed above, we 
have complied with the requirements of the Executive Order.
    Comment 9: The Regulatory Flexibility Act requires that agencies 
consider the effects of their actions on small businesses, small non-
profit enterprises, and small local governments. If the action is 
expected to be significant, an initial regulatory flexibility analysis 
must be published with the proposed rule. If, as the Service did here, 
the agency certifies that the proposed rulemaking is not expected to be 
significant, it must publish with the certification a statement 
providing a factual basis for such a conclusion.
    Our Response: The Regulatory Planning and Review section of the 
proposed rule (65 FR 41794) discussed our reasons for determining that 
this action will not have significant economic effects on the small 
entities listed by the commenter. We believe this constitutes a 
statement providing the factual basis for our determination.

Issue E: Section 7 Consultation Issues

    A number of commenters, particularly Federal agencies, expressed 
concerns or had questions regarding the effects of designation on the 
section 7 consultation process.
    Comment 1: An unclear and ambiguous definition of what constitutes 
adverse modification of critical habitat will result in varying 
interpretations under section 7. The Service needs to more clearly 
define adverse modification and allow review by Federal agencies in 
order to assess the impact of designation on agency programs.
    Our Response: Section 4(b)(8) of the Act requires that we provide, 
in any proposed or final rule to designate critical habitat, a ``* * * 
brief description and evaluation of those activities * * * which * * * 
may adversely modify [critical] habitat, or may be modified by such 
designation.'' In the proposed rule, in the section titled ``Effects of 
Critical Habitat Designation'' (65 FR 41792), we provided a relatively 
detailed discussion of the types of programs that have typically 
undergone section 7 consultation since the species was listed under the 
Act. We identified the action agencies and programs conducting such 
actions, and stated our belief that actions likely to adversely modify 
critical habitat would likely also jeopardize the continued existence 
of the species. We then provided a discussion of the types of 
activities that we foresee may adversely modify critical habitat.
    We acknowledge the commenter's implication that specific standards 
should be given to properly advise citizens and Federal agencies as to 
what programs may be affected by critical habitat designation, but find 
such specificity impossible given the wide variety of projects and 
ecological conditions occurring throughout the designation area. In 
addition, the fact that we expect few or no restrictions to be imposed 
through the consultation process beyond those that have existed since 
the species was listed reinforces our belief that our discussion was 
adequate to meet the requirements of section 4(b)(8) of the Act.
    Comment 2: The Service has represented that no additional impacts 
will result from critical habitat designation beyond those already in 
place through the listing of the species and required consultation 
under section 7 of the Act. This is premised on the argument that the 
prohibition of jeopardy for listed species is nearly identical to the 
prohibition against adverse modification of critical habitat. In 
addition, the commenter cites 64 FR 31871-31872 as an example where the 
Service has previously acknowledged that the adverse modification 
standard (for projects affecting critical habitat) is not identical to 
the jeopardy standard (for projects affecting listed species). Finally, 
the Service requires that an analysis for a critical habitat 
consultation be conducted independently from an analysis under the 
jeopardy standard.
    Our Response: With regard to the commenters' contention that we 
have previously acknowledged the difference between jeopardy and 
adverse modification, the citation provided by the commenter is from 
our Notice of Intent To Clarify the Role of Habitat in Species 
Conservation (June 14, 1999; 64 FR 31871-31874). On cited page 31872, 
we stated ``According to our interpretation of the regulations, by 
definition, the adverse modification of critical habitat consultation 
standard is nearly identical to the jeopardy consultation standard.'' 
We also stated ``For almost all species, the adverse modification and 
jeopardy standards are the same * * * It should be noted that while the 
jeopardy and adverse

[[Page 36052]]

modification standards achieve similar results, the context of the 
analyses differ i.e., jeopardy analyses examine effects to the species 
while the adverse modification analyses examine effects to the habitat 
that supports the species. When addressing impacts to occupied habitat, 
effects to the habitat supporting the species will result in parallel 
effects to the species. If these effects rise to the level of adversely 
modifying designated critical habitat, then it is anticipated that 
these effects would also be sufficient to result in a jeopardy 
determination. We did acknowledge that in cases where unoccupied 
habitat is involved there may be additional consultation requirements 
because of critical habitat designation. However, we consider all 
designated wintering piping plover critical habitat units to be 
``occupied'' in the sense that, when the primary constituent elements 
are present during the appropriate season, those features will be used 
by piping plovers at least occasionally.
    Finally, the commenter is correct that our analysis of a project's 
effects on critical habitat and the analysis for the project's effects 
on the species are conducted independently (50 CFR 402). However, this 
has no bearing on our position that the results of the two analyses 
will essentially be the same under the jeopardy and adverse 
modification standards. This has been borne out as, after many years of 
conducting section 7 consultation, there have been no instances in 
recent times where a project was determined unlikely to jeopardize the 
continued existence of a species while at the same time deemed likely 
to destroy or adversely modify its critical habitat.
    Comment 3: The final rule should include a clause that excludes 
previously authorized Federal project areas from the definition of 
primary constituent elements. Federal agencies are legally obligated to 
conduct these actions when an agreement between the agency and non-
Federal sponsors exists. These types of projects should be 
``grandfathered'' from the critical habitat designation.
    Our Response: Federal actions that have already undergone section 7 
consultation on the effects of the action on piping plovers, and that 
were determined unlikely to jeopardize the continued existence of the 
species, must undergo further consultation on the projects' effects to 
critical habitat only in instances--(1) where the project has not 
already been completed, and (2) where the Federal agency still has the 
discretion within its legal authority to modify the project should it 
be determined likely to adversely modify critical habitat. Where a 
project has been completed, or where the action agency has no 
discretion to modify the project, no further consultation would be 
necessary.
    In cases where a previously consulted-upon action could still be 
modified within the agency's legal authority, and where that project 
may affect critical habitat, reinitiation of consultation is required 
(50 CFR 402.16). However, given that such a project would have already 
received a non-jeopardy biological opinion from us, and since actions 
unlikely to jeopardize the continued existence of the species would 
also usually be unlikely to adversely modify critical habitat, the 
project would likely proceed without additional constraints.
    The Service has only had one jeopardy opinion issued for the piping 
plover wintering population since its listing in 1986. The proposed 
project was in Texas and was not undertaken for various reasons.
    Comment 4: The Service should work with affected Federal agencies 
and others whose programs depend upon Federal funding or permits to 
develop general guidelines that can be used to expedite the 
consultation process. In this way the effects of designation will be 
minimized, especially if and when these guidelines are incorporated 
into project designs.
    Our Response: We agree with this recommendation and are prepared to 
work with local interests in developing guidelines to guide and 
expedite the section 7 consultation process. We invite interested 
agencies and individuals to contact their local Service offices to 
begin this programmatic consultation approach.
    Comment 5: Commenters have asked how the final designation will 
affect Federal and non-Federal projects currently under consideration 
for authorization within critical habitat units.
    Our Response: All landowners, public and private, are responsible 
for making sure their actions do not result in the unauthorized taking 
of a listed species, regardless of whether or not the activity occurs 
within designated critical habitat. Take is defined as ``harass, harm, 
pursue, hunt, shoot, wound, capture, collect, or attempt to engage in 
any such conduct.'' Take is further defined by regulation to include 
``significant habitat modification or degradation that actually kills 
or injures wildlife,'' which was upheld by the U.S. Supreme Court in 
Sweet Home Chapter of Communities for a Great Oregon et al. v. Babbitt, 
515 U.S. 687 (1995).
    All Federal agencies are responsible to ensure that the actions 
they fund, permit, or carry out do not result in jeopardizing the 
continued existence of a listed species, regardless of critical habitat 
designation. ``Jeopardize the continued existence of'' means to engage 
in an action that would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species (50 CFR 402.02). Because we designated 
only areas within the geographic range occupied by the piping plover, 
any activity that would result in an adverse modification of the 
plover's critical habitat would virtually always also jeopardize the 
continued existence of the species. Federal agencies must consult 
pursuant to section 7 of the Act on all activities that will adversely 
affect the plover both within and outside designated critical habitat.
    The consultation process will change only to the extent that 
Biological Assessments must consider the effect of the project on 
critical habitat. However, we already need to consider the effect of 
the project on habitat (in the absence of critical habitat designation) 
based on the listing of the piping plover. Therefore, we anticipate 
that the additional workload burden created by critical habitat will 
not result in different outcomes of the jeopardy and adverse 
modification standards.

Issue F: Public Involvement/Coordination

     Several commenters expressed concerns about the adequacy of the 
opportunity for public input and other coordination issues.
    Comment 1: All landowners within the area affected by the 
designation should have been notified.
    Our Response: Given the wide-ranging nature of this designation, 
the thousands of landowners involved, and the amount of time available 
to complete the designation due to court order, contacting each 
individual landowner within the proposed area was not possible. 
However, we went well beyond the general notification requirements of 
the Act and the Administrative Procedure Act. This included 
notification of all State and local governments; mailings to over 898 
interested parties; publication of notices in 23 newspapers; issuance 
of press releases for each public hearing and comment period reopening; 
and other informational materials. Given that we received over 6,000 
letters of comment on the proposal, we believe that we adequately 
publicized the proposed action. We regret any instances where

[[Page 36053]]

interested parties may have been unaware of the proposed designation, 
but believe these instances are few.
    Comment 2: The Service is attempting to implement critical habitat 
without giving landowners adequate time to review the information.
    Our Response: The initial public comment period on this action was 
open from July 6, 2000, through September 5, 2000 (60 days). When the 
draft economic analysis of the proposal was completed, we extended the 
comment period until October 30, 2000 (65 FR 52691), and again until 
November 24, 2000 (65 FR 64414), for a total extension of 80 days. 
Finally, we reopened the comment period for 7 additional days (66 FR 
11134) to accept further public comment on any and all aspects of the 
proposal and associated economic analysis. The public therefore had 147 
days of open comment period on the proposed rule, and 87 days of open 
comment period on the draft economic analysis. The Act requires that a 
minimum of 60 days be allowed for comment on a critical habitat 
proposal. Thus, we exceeded the statutory requirement.
    Comment 3: Some commenters felt that there were too few public 
hearings held, some questioned the geographic distribution of the 
hearing sites, and some were concerned that the hearings were poorly 
publicized or that too short a notice was given.
    Our Response: The Act requires that at least one public hearing be 
held on a proposed designation of critical habitat if requested within 
45 days of publication of a proposed rule. As described previously, in 
anticipation of the public's interest in the proposed designation we 
announced in the proposal that we would hold 9 public hearings. We 
added a tenth public hearing, that we announced in the Federal Register 
and local newspapers (for a complete discussion on the public hearings 
and our efforts at publicizing them please see the beginning of this 
``Summary of Comments and Recommendations'' section). While we would 
have preferred to conduct more public hearings, budgetary, workforce, 
and time constraints prohibited us from doing so. Nonetheless, we far 
exceeded the requirement that one public hearing be held if requested. 
Further, given the large geographic distribution of wintering piping 
plovers and the resulting large area proposed as critical habitat, we 
chose our hearing locations to spread the sites as evenly as possible 
throughout the eight affected States. Once requested, four additional 
public meetings were held after the initial public meetings and 
hearings.
    We disagree that the public hearings were poorly publicized, as we 
conducted extensive outreach prior to the hearing (see the discussion 
in F.1). We acknowledge, however, that notification of the Wilmington, 
North Carolina, and Savannah, Georgia, hearings was less than desired. 
Regulations (50 CFR 424.16(c)(3)) require 15 days notification prior to 
public hearings being held, but the Wilmington and Savannah hearings 
were publicized only 11 and 13 days, respectively, before they were 
held. While we regret this short notification, since only one hearing 
is required to meet our statutory obligations under the Act, we did not 
violate our regulatory requirements.
    Finally, it is important to note that a public hearing is one part 
of the public participation opportunities provided under the Act and 
Administrative Procedure Act. Written comments receive equal 
consideration as oral comments, and we far exceeded the public comment 
period requirements in allowing ample time for submission of written 
comments. In addition, we were ordered by the court to complete the 
proposed and final designation in a 10-month period. Thus we could not 
have extended the comment period any longer and met the court deadline 
of April 30, 2001.
    Comment 4: The proposed rule does not describe the type and level 
of coordination that has occurred with State wildlife agencies; their 
views should have been included in the proposal.
    Our Response: We have long recognized the roles of States in 
management of listed species and their habitats, and coordinate with 
States to the extent practicable. The Act at (4)(b)(5)(A)(ii)) requires 
that States be given notification of, and opportunity to comment on, 
proposed listing actions. However, we generally coordinate with States 
during the proposal development process, as we did here.
    Our biologists coordinated with the appropriate State agencies from 
all eight affected States in developing piping plover distribution 
information along the coast by meeting with them personally and 
soliciting their input prior to the proposed rule and/or during the 
comment periods. We incorporated their input and expertise into the 
proposed and final rules.
    Comment 5: Why were persons with known experience in piping plovers 
not contacted for information prior to publication of the proposed 
rule? As a result of the Service's failure to seek local expertise, 
important areas were left out of the designation.
    Our Response: It is our judgement that information collected pre-
proposal was sufficient for a thorough and comprehensive designation to 
support all three populations of piping plovers when recovered. 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 prohibitions, as determined on the 
basis of the best available information at the time of the action. In 
developing the proposed and final rules, we coordinated with biologists 
in the appropriate State agencies from the eight affected States (see 
response to F.4).

Issue G: Mapping and Primary Constituent Elements

    A number of commenters expressed concerns about map quality, the 
broad extent of the designation, the definition of the primary 
constituent elements, and other issues surrounding spatial aspects of 
the designation.
    Comment 1: The critical habitat units are non-specific in that they 
include lands that do not contain the primary constituent elements. 
This will result in unnecessary section 7 consultations and add an 
unnecessary administrative burden to government agencies and private 
entities included within the mapped boundaries.
    Our Response: While it would be ideal if we could map only areas 
that currently contain the primary constituent elements, there are 
three primary reasons why we were unable to do so. First, we are 
unaware of the existence of sufficient data with which to conduct the 
precise mapping requested by the commenters. Second, even if the data 
were available, the large extent of the species' range would render 
such fine-scale mapping impractical, especially given workforce and 
time limitations. Most importantly, the coastal areas inhabited by the 
piping plover are so highly dynamic that any map of currently suitable 
habitat would rapidly become obsolete.
    For the reasons cited above, we mapped the critical habitat 
boundaries on a relatively coarse scale, and identified the areas 
within those boundaries that are essential to the species by describing 
those habitat features (primary constituent elements) essential to the 
plover's life-history requirements. In this way, critical habitat 
designation will accommodate the dynamic nature of the habitat, 
changing through time as the primary constituent elements form in one 
area while disappearing in another. We

[[Page 36054]]

believe that this approach is the only scientifically credible way to 
ensure that the critical habitat designation is compatible with the 
species' habitats' naturally ephemeral character. As suggested by one 
commenter, to ensure that interested persons understand that critical 
habitat is found only in areas where the primary constituent elements 
are present, our final critical habitat maps are footnoted to that 
effect. This is consistent with our regulations at 50 CFR 17.94(c), 
that indicate the management of critical habitat focuses only on the 
biological or physical constituent elements within the defined area of 
critical habitat.
    Finally, as stated in both the proposed and final rules, section 7 
consultation on piping plover critical habitat will only be required 
when a proposed Federal action may affect the primary constituent 
elements. Thus, no consultation will be necessary if those habitat 
features are not present, since consultation is triggered by a 
determination on the part of the Federal action agency that their 
proposed activity may affect piping plovers or their critical habitat. 
Our Ecological Services Field Offices (see contact information under 
``Effects of Critical Habitat Designation'' section) will gladly work 
with Federal agencies and landowners to help determine whether piping 
plover habitat occurs on their property.
    Comment 2: Including an area as critical habitat because it may 
support the primary constituent elements in the future violates the 
criteria specified in regulations at 50 CFR 424.12(b). This approach 
also circumvents the rulemaking requirements under the Act and the 
Administrative Procedure Act.
    Our Response: The referenced regulation speaks to the definition of 
the primary constituent elements and lists the types of life-history 
requirements that may be included in critical habitat. One of those 
life-history requirements is ``(1) Space for individual and population 
growth, and for normal behavior.'' We believe the designation reflects 
this life-history requirement, in that critical habitat units were 
developed to take into account the shifting nature of primary 
constituent elements in coastal systems. That is compatible with piping 
plovers' normal behavior of shifting use areas based on tide, weather, 
food supply, etc. (Drake 1999a). Thus, we believe the designation 
accurately reflects the intent of 50 CFR 424.12(b).
    We also dispute the contention that this approach violates the 
rulemaking requirements of the Act or Administrative Procedure Act. The 
proposed rule and this final rule notify the affected public of the 
boundaries of the critical habitat designation and of the fact that the 
essential physical and biological features important to the piping 
plover are dependent upon a dynamic coastal system that changes through 
time. As explained above and throughout the proposed and final rules, 
we can think of no other approach consistent with the dynamic nature of 
the species' habitat.
    Comment 3: Regulations at 50 CFR 17.94(c) state that the Service 
must focus on the biological or physical elements within the critical 
habitat area that are essential to the conservation of the species and 
that are known to require special management considerations or 
protection. Designation of such broad geographical areas expands the 
``best available information'' requirement to render moot the fact that 
the data must be ``available'' and the presence of constituent elements 
``known''.
    Our Response: Regulations at 50 CFR 17.94(c) require that those 
constituent elements ``known to require special management 
considerations or protection'' be listed with the description of 
critical habitat. As stated in our response to G.2, critical habitat 
units were developed to take into account the shifting nature of 
primary constituent elements. We believe we have used the best 
information available and made a biologically sound designation based 
on the ephemeral nature of piping plover habitat.
    Comment 4: Additional explanation of what constitutes the primary 
constituent elements would aid the general public in recognizing the 
species' critical habitat.
    Our Response: We believe the primary constituent elements were 
well-described in the proposed rule. Further, we received information 
from state and county biologists who have documented the use of 
salterns (also called salinas, salt flats, salt barrens, and salt pans) 
by piping plovers in southwest Florida. They are bare sand flats in the 
center of mangrove ecosystems that are found above mean high water and 
are only irregularly flushed with sea water (Myers and Ewel 1990). We 
have added the term ``salterns'' to the description of primary 
constituent elements.
    Comment 5: Critical habitat units should be mapped in sufficient 
detail to exclude developed areas. Merely excluding these areas 
verbally is inadequate.
    Our Response: In the final rule we excluded a number of larger 
developed areas from the mapped units. We did this to the extent 
practicable given the available information and time to complete the 
mapping effort. We could not exclude every structure, road, or other 
feature from the critical habitat boundaries. However, these areas are 
not included by definition.
    Comment 6: The designation should be revised to exclude developed 
and other areas that do not currently contain the primary constituent 
elements. By including non-habitat areas within the designation, the 
Service will not be able to distinguish which areas are habitat, and 
merit protection, and those areas that do not support plovers. This may 
result in adverse activities proceeding because the Service will not be 
able to distinguish between those areas adversely affected before the 
designation from those occurring after the designation.
    Our Response: We believe we can assess whether an action area is 
habitat for piping plovers, much as we have done over the 15 years that 
the species has been listed. We will use aerial photographs and local 
records to determine the extent of development at the time of this 
critical habitat designation. When an action agency is contemplating an 
action, it is up to that agency to determine whether or not that action 
may affect a listed species or its critical habitat. If the agency 
determines its action may affect a listed species' habitat, it then 
initiates section 7 consultation. We then evaluate the effects of the 
action on the species or its critical habitat.
    Comment 7: The Service should clarify that not all human-made 
structures are excluded from critical habitat. Some areas, such as 
renourished beaches, may benefit plovers if done correctly.
    Our Response: We agree that not all human-made structures are 
excluded from critical habitat. Only those areas (whether human-made or 
natural) containing the primary constituent elements are considered 
critical habitat. We agree that beach renourishment is an example of 
human-made habitat that may benefit piping plovers. Habitat restoration 
and creation projects including beach nourishment, barrier island 
restoration, and islands created using dredged material may benefit 
plovers and such sites have been included in the critical habitat 
designation.
    Comment 8: Areas should not be excluded from critical habitat 
merely because they are ``developed sites.'' Just because an area is 
already degraded does not preclude its designation if it is essential 
to the species' recovery.
    Our Response: The proposed designation constitutes our assessment

[[Page 36055]]

of the wintering habitat needed to support a recovered piping plover 
population. In arriving at this designation we included areas that have 
documented consistent use. We mapped around developments adjacent to or 
directly on the beaches and only excluded developments that do not 
contain any primary constituent elements. For example, Grand Isle is a 
barrier island in Louisiana that is highly developed. Christmas bird 
count data indicate consistent use by plovers. We only mapped from the 
hurricane protection levee gulfward. The developed areas are currently 
from the levee landward.
    Comment 9: One commenter suggested we add such terms as ``bridges, 
piers, and aids to navigation'' to the list of ``developed sites.''
    Our Response: We elected not to list every conceivable type of 
``developed site'' because such a list would be extensive and we would 
risk leaving out some type of development. Thus we believe that the 
appropriate course is to remain fairly general on this issue and allow 
the Federal action agencies the flexibility to determine which areas do 
or do not contain the primary constituent elements.
    Comment 10: In the text of the rule, the Service excludes areas 
from critical habitat that do not contain the primary constituent 
elements, but fails to do so in the language amending 50 CFR 17.95.
    Our Response: This assertion is incorrect, as the discussion on 
non-inclusion of non-suitable areas is given at the end of the 
regulatory section of the proposed rule (see 65 FR 41812), after the 
legal descriptions for the Texas units. However, in order to make this 
language more obvious and so that it clearly pertains to the entire 
designation, we have moved this discussion to the beginning of the 
regulatory portion of this final rule.
    Comment 11: Verbally excluding areas from critical habitat is 
counter to regulations at 50 CFR 17.94(a), that require that critical 
habitat areas be defined by surveyable landmarks found on standard 
topographic maps of the area.
    Our Response: This commenter is likely referring to 50 CFR 
17.94(b), which states that critical habitats are described by 
reference to surveyable landmarks found on standard topographic maps of 
the area. As stated above and elsewhere in this final rule, piping 
plover habitat is composed of highly dynamic areas that can change 
quite rapidly, and are thus by their nature ephemeral. Thus, we defined 
the critical habitat boundaries textually using visual references found 
on Digital Orthophoto Quarter Quads (DOQQs) (i.e., digital aerial 
photography) and reference locations found on published maps. For the 
piping plover designation, we believe that textual unit descriptions, 
as described in the ``Methods'' section of this rule, will provide for 
a more precise means of defining the areas that contain the physical 
and biological features essential to the wintering piping plover and 
will allow the public to better determine the critical habitat 
boundaries. The textual unit descriptions allow us to capture the 
dynamic nature of the coastal habitat by describing each unit as 
including the area extending out from the landward boundaries to the 
MLLW. In this way we can include in the designation intertidal areas 
that are essential foraging areas for piping plovers. Our textual unit 
descriptions may also describe important areas within the unit that are 
utilized by the piping plover, such as wind-tidal flats, and areas that 
contain the primary constituent elements.
    Comment 12: One commenter suggested that the critical habitat 
boundaries not be fixed, but rather be flexible so as to take into 
account the ever-changing nature of the coastal areas and account for 
shifts in the locations of important piping plover habitat features.
    Our Response: As stated and described in the ``Methods'' section of 
this final rule, we believe the needed flexibility is provided in the 
textual unit by unit descriptions that account for the dynamic nature 
of plover habitat. These unit descriptions are being published in the 
regulatory section of this rule as the definitive source for 
determining the critical habitat boundaries. We recognize that 
important plover habitat may form over time in areas outside the 
designated boundaries and if it is determined to be warranted, the 
critical habitat designation could be revised through the rulemaking 
process in the future.
    Comment 13: Some commenters expressed concern that the Universal 
Transverse Mercator System (UTM) coordinates published in the proposed 
rule resulted in boundaries that were in error. The final rule should 
be written to ensure that the UTM coordinates are consistent with the 
written descriptions of the critical habitat units.
    Our Response: The coordinates we reported were generated by the 
Geographic Information System (GIS) software that was used to create 
the units. A GIS is a mapping software that links information about 
where things are with information about the area. Unlike a paper map, a 
GIS map can combine many layers of information and tools to analyze 
that information. The coordinates printed in the Federal Register were 
created from the text files that were generated from the GIS. During 
this process potential errors may have occurred due to the interpretive 
process of the coordinates. One known error was the reporting of 
Florida coordinates. We reported Florida coordinates to be UTM 
coordinates, when in actuality they were the map projection coordinates 
used within the State of Florida (Albers projection).
    Another error was identified after the unit coordinates were 
published. This error occurred in the North Carolina data. The datum of 
the source imagery DOQQs (i.e., digital aerial photography) we obtained 
was reported inaccurately. The imagery was reported as North American 
Datum 1927 (NAD27), when it was actually North American Datum 1983 
(NAD83). By utilizing the on-the-fly projection capability of the GIS 
software, the data was projected to NAD27 and all line work was 
digitized. This introduced an error in the data that shifted the 
features up to 500 meters. We have resolved this problem in this final 
rule. As noted within this rule, our textual unit descriptions are the 
definitive source for determining the legal boundaries of the critical 
habitat designation. Thus, we will not be publishing UTMs or Latitude 
Longitude coordinates as part of this final rule.
    Comment 14: Some commenters pointed out that there were various 
errors in the legal descriptions. For example, the legal description 
for unit FL-27, when plotted, did not match the Federal Register maps. 
As such, landowners within erroneously described units were not 
properly notified of the designation, and critical habitat should 
therefore be re-proposed.
    Our Response: See response to G.13. Due to an inadvertent error, 
the detailed maps we made were not published in the proposed rule; only 
the index maps were published. However, verbal unit descriptions were 
published, as well as who to contact for more information. Detailed 
maps were available to the public on the web at http://southeast.fws.gov. Legal notices were published in major newspapers 
announcing the public hearings and included contact information and the 
website address. In addition, site-specific maps were available at the 
public hearings. Thus, we believe that the public had ample opportunity 
to determine whether an area was included in the designation, based on 
the verbal unit descriptions, and to comment on the proposal.

[[Page 36056]]

    Comment 15: The maps in the proposed rule were of insufficient 
detail for landowners to determine whether their property is within the 
critical habitat boundaries. The final maps should correct this.
    Our Response: We acknowledge that there was a problem with the maps 
as published in the proposed rule. Through an inadvertent error, the 
more detailed maps provided for publication were not included in the 
proposed rule. However, due to Federal Register constraints of page 
size, even more detailed maps may not provide enough resolution to 
allow some individual landowners the ability to determine whether their 
property is in or out of a critical habitat unit. Thus, the maps 
published in the Federal Register are intended for general guidance 
only, while the textual unit descriptions should be used for definitive 
determinations.
    Comment 16: It is difficult to determine from the maps published 
with the proposed rule the exact boundaries of the critical habitat 
units. In some areas it appears that highways were used as boundaries, 
and it is difficult to tell whether highway rights-of-way are within 
the critical habitat units. The final rule should explicitly exclude 
highway rights-of-way.
    Our Response: We did not explicitly exclude highway rights-of-way 
in this final designation, because some rights-of-way containing the 
primary constituent elements may be essential to piping plover 
conservation. Unit map boundary lines as printed in the Federal 
Register cannot be used to determine whether a project would be 
affecting the species or adversely modifying its critical habitat. The 
textual unit descriptions should be used for definitive determinations 
as to whether an area is within the designated critical habitat 
boundary. Federal agencies will need to determine whether actions they 
fund, authorize, or carry out may affect wintering piping plovers or 
their critical habitat.
    Comment 17: Only the 86 percent of the proposal that is public land 
should be designated.
    Our Response: In selecting areas to propose as critical habitat, we 
did not consider land ownership per se, but rather selected areas based 
on whether or not they were essential as indicated by recorded 
consistent plover use or areas where the habitat conditions indicated 
probable use by plovers. Areas for which habitat conditions indicated 
probable plover use in Louisiana, were confirmed for occupancy this 
winter.
    The Act does not allow exclusion of areas based on land ownership 
unless we determine under section 4(b)(2) of the Act that the benefits 
of excluding an area from the designation outweigh the benefits of 
including the area as critical habitat. See the Exclusions Under 
4(b)(2) of the Act'' section of this rule for a further discussion of 
this issue.
    Comment 18: The proposed rule incorrectly characterized Unit TX-34 
as comprising almost entirely State-owned lands. In fact, the gulf 
beach is privately owned to the mean high-tide line, and the proposed 
area includes upland areas that are privately owned. Further, the area 
on the southernmost end of Galveston Island includes 300 acres of 
privately owned land, that were inaccurately portrayed on the map. The 
map of Unit TX-34 is woefully outdated.
    Our Response: As described in the proposed rule, Unit TX-34 
includes gulf beach and sand flats that belong to the State of Texas, 
and of which 57% is in the floodtide delta. The area is described as 
only including the delta to the northwest of the causeway, and the 
beach to the northeast of the causeway. Both sides of the San Luis Pass 
experience extremely high levels of erosion averaging 10.2 m (33.8 ft) 
per year on the Galveston Island side, and 18 m (60.1 ft) per year on 
the Follet's Island side (Morton 1989). As a result, maps of this 
dynamic area are out of date before they are published. We have 
described the area in narrative form, and mapped the area using aerial 
photography dated 1995.
    Comment 19: Latitude and longitude information should be given to 
facilitate inclusion in the GIS of Federal, State, and local agencies.
    Our Response: Because the source data DOQQs imagery used to map 
critical habitat were projected, we chose to report the legal 
descriptions in the proposed rule in projected values and not latitude 
and longitude. We believed that this methodology will facilitate 
overlaying the data in any GIS with the source imagery. However, in 
this final rule the definitive source for determining the precise legal 
boundaries of the designation are the textual unit descriptions.

Issue H: Best Information/Science

     A number of commenters questioned the accuracy of the information 
on which the proposal was based and whether or not we used the best 
scientific and commercial information available.
    Comment 1: The Service should follow the scientific decision-making 
process used for all Federal water and related land resource studies. 
This requires six significant steps-(1) identify and inventory problems 
and opportunities; (2) inventory and forecast conditions; (3) formulate 
alternative plans; (4) evaluate alternative plans; (5) compare 
alternative plans; (6) select a plan. The proposal does not explain how 
the Service went through this process.
    Our Response: Please see our ``Methods'' discussions in the 
proposed and final rules, that explain the process we went through in 
arriving at this final designation. Although the process does not 
precisely mirror the one suggested by the commenter, we believe that 
our approach was a logical and rational approach to meeting the 
mandates of the Act. The Act requires that our decisions be based on 
the best scientific and commercial information available, and does not 
require ``reasonable scientific certainty.''
    Comment 2: The proposal provides very limited information on the 
criteria and data used to determine the areas proposed as critical 
habitat. For example, there was no discussion of the data upon which 
the Service relied in concluding that the proposed areas contain the 
primary constituent elements, particularly in areas where plovers have 
not been recorded. More supporting data should be provided.
    Our Response: We refer you to the ``Methods'' sections of the 
proposed and final rules. In those discussions, we provide information 
on the data considered throughout this process. While those discussions 
only summarize the data used, we welcome interested individuals to 
contact us if they wish to review the detailed supporting information 
in our files. Additional survey data this winter confirmed that all 
units are occupied.
    The only areas included in the proposed rule that did not have 
survey data showing that they are used by plovers were the Mississippi 
River and the Wax Lake Outlet Deltas. We included those areas because 
of the high probability of use by plovers due to the broad expanse of 
mudflats known to exist in the river deltas. Those areas are remote and 
difficult to access and thus had not been surveyed. We have surveyed 
these areas since the proposed rule (Mississippi River Delta in 
December 2000, and the Wax Lake Outlet Delta during the February 
International Piping Plover Survey). Forty plovers were found on a few 
small dredged material islands in the Mississippi River Delta, none 
were found in the Wax Lake Outlet Delta. Those areas of the Mississippi 
Delta where no plovers were observed were not included and the entire 
Wax Lake Outlet Delta was likewise not included in the final rule. 
Additionally, during the International Census in February

[[Page 36057]]

2001, 40 piping plovers were observed on the same dredged material 
islands in the Mississippi River Delta. Although we do not have data to 
document use of these areas from previous wintering seasons, based on 
studies indicating that plovers exhibit a certain amount of site 
fidelity (see our response to Comment A.11 above), and the large 
numbers of plovers observed at these sites, we have included these 
areas in the designation because of the virtual certainty that they are 
consistently used. As we have stated, this designation is based on the 
best scientific and commercial information available, as required by 
the Act. We welcome any additional data on the piping plover and its 
habitat.
    Comment 3: Critical habitat should be designated only in areas 
where the species is present. Some areas have been proposed where there 
are no data to show that the piping plover occurs there.
    Our Response: In the proposed rule, we acknowledged that ``In some 
areas, adequate census data are not available to provide reliable 
presence or absence information for the plover. These areas are in 
remote locations where censuses are logistically difficult. However, 
the physical and biological features essential to piping plovers are 
known to be at least sporadically present in these dynamic areas, and 
our belief that these areas support piping plovers when essential 
habitat features are present is biologically sound'' (65 FR 41785).
    The only areas included in the proposed rule that did not have data 
on piping plover presence were the Mississippi River and the Wax Lake 
Outlet Deltas. These areas were surveyed twice since the proposed rule. 
For the final rule, we have included those areas that contain piping 
plover habitat and for which we had documented use by piping plovers. 
See response to H.2.
    Comment 4: The Service should provide the population data upon 
which this proposal is based. The Service should also census each 
proposed area and designate only those areas with high plover 
concentrations as critical habitat.
    Our Response: As stated in the proposed rule, the data upon which 
the designation is based are available by contacting our Corpus 
Christi, Texas, Ecological Services Field Office (see ADDRESSES 
section). Inclusion of all the survey data in the proposed or final 
rules would be impracticable.
    We agree that areas of high plover concentrations indicate that the 
areas are important to wintering piping plovers. But areas with low, 
yet consistent numbers are also important. This is true particularly 
for the endangered Great Lakes population. This population has 
approximately 32 pairs remaining, which winter in locations throughout 
the southeast, thereby making each critical habitat unit important to 
the survival and recovery of that endangered population. Plover use 
patterns may shift through time, both within and among seasons and 
years.
    Comment 5: The designation should be delayed until plover activity 
is studied in detail.
    Our Response: In this case, the court determined that we had failed 
to abide by the requirements of the Act for designating critical 
habitat when prudent and determinable and ordered us to complete the 
critical habitat determination. We did so using the best scientific and 
commercial information available, as required by the Act (4(b)(2)). 
While it is always preferable to have more information on virtually 
every listed species, the Act does not allow for indefinite delays 
until such information is acquired. Nonetheless, we will continue to 
use the best information available as we continue the species' recovery 
process, and may revise the critical habitat designation in the future 
if appropriate and necessary.
    Comment 6: Has the Service considered less drastic alternatives 
such as designating only preserved areas or less developed areas, and 
regulating only those activities that are troublesome to the plover?
    Our Response: As described in both the proposed and final rules, 
the intent of the critical habitat designation is to include all areas 
believed essential for the species' conservation, which includes its 
recovery. It is our biological conclusion that merely designating 
``preserved'' areas or areas not subject to habitat threats would not 
be sufficient to provide for the species' eventual recovery. We did, 
however, avoid a number of developed areas within the range of the 
plover, designating only those areas we believe necessary for the 
species' conservation.
    As to the regulatory effects of the designation, we will only 
formally review actions under section 7 consultation when Federal 
actions are likely to adversely affect the species or its habitat. In 
these cases we recommend that consultation be conducted regardless of 
whether the habitat is officially designated as critical. As indicated 
in the Final Economic Analysis, we believe that little if any 
incremental regulatory or economic effects above the listing will 
result from this designation.
    Comment 7: Based on population numbers and the proposed acreage, 
the Service has allotted 600 acres per bird. Why does a 6-inch tall, 2-
ounce bird need so much habitat?
    Our Response: The actual area of critical habitat, as defined by 
the primary constituent elements, is considerably less than the coarse 
acreage included within the proposed boundaries. Critical habitat is 
designated to identify areas essential to the conservation of the 
species, including identifying sufficient habitat to achieve recovery. 
Further, wintering piping plovers do not simply ``occupy'' a certain 
static location, but rather move throughout an area as its needs (e.g., 
foraging, roosting, refuge from high winds or severe storms) change 
from day to day and over time as a result of the tides, weather, and 
other factors.

Issue I: Definition of Critical Habitat

    Numerous commenters expressed concerns that the areas designated 
were either not essential to the conservation of the species, not in 
need of special management considerations or protection, or otherwise 
inconsistent with the statutory requirements for selecting areas to 
designate as critical habitat.
    Comment 1: Why is critical habitat being designated in otherwise 
protected areas, such as State lands, national seashores, refuges, or 
parks? Managers should have the opportunity to implement management 
actions that would avoid the additional regulatory burden of critical 
habitat designation.
    Our Response: As implied by this commenter, areas not in need of 
special management do not meet the definition of critical habitat and 
are therefore not included in a critical habitat designation. We use 
the following three criteria to determine if a management plan provides 
adequate special management or protection: (1) A current plan/agreement 
must be complete and provide sufficient conservation benefit specific 
to the species; (2) the plan must provide assurances that the 
conservation management strategies will be implemented; and (3) the 
plan must provide assurances that the conservation management 
strategies will be effective, i.e., provide for periodic monitoring and 
revisions as necessary. If all of these criteria are met, then the 
lands covered under the plan would no longer meet the definition of 
critical habitat.
    Given the amount of time allowed to prepare the proposed 
designation, the wide distribution of wintering piping plovers, and the 
myriad of landowners and land managers within the species' range, we 
were unable to do a

[[Page 36058]]

comprehensive evaluation of all management plans that could potentially 
meet the criteria listed above. Although we did identify areas that 
have the potential for having a management plan, primarily Federal 
lands, and evaluated those plans if one was completed for the area. In 
the proposed rule we also solicited information on reasons why any area 
should or should not be considered critical habitat (65 FR 41793). The 
ensuing public comments included several instances where commenters 
believed certain areas are currently managed compatibly with the 
species and should therefore be excluded from the final designation. 
Those suggestions are addressed under the ``Site-specific Comments'' 
portion of this ``Summary of Comments and Recommendations'' section. We 
received no information that indicated that any of the public land 
management plans met our three criteria; therefore, no lands were 
excluded based on ``not [being] in need of special management 
protection.'' We did, however, exclude the Padre Island National 
Seashore based on section 4(b)(2) of the Act. Please refer to the 
``Exclusions Under 4(b)(2) of the Act'' section of this rule.
    We also note that we encourage management plans compatible with the 
conservation of threatened and endangered species, and that critical 
habitat designation neither discourages such voluntary actions nor adds 
significant regulatory burden. Management that does not adversely 
affect listed species or their critical habitat is not required to 
undergo formal section 7 consultation.
    Comment 2: The piping plover already receives substantial 
protections, such as under sections 7 and 9 of the Act. Why is 
additional protection necessary? The Service has repeatedly claimed 
that they expect no adverse economic impacts beyond those attributable 
to listing. If this is so, why not abandon this designation? Why 
subject landowners to uncertainty and additional bureaucracy?
    Our Response: We agree that protections afforded listed species 
under sections 7 and 9 are substantial, and that critical habitat 
designation usually adds only marginal protections above those already 
afforded listed species. Under section 7, Federal agencies are required 
to utilize their authorities to further the conservation of species and 
the ecosystems upon which they depend. Federal agencies are prohibited 
from implementing actions likely to jeopardize the continued existence 
of a species or to destroy or adversely modify a listed species' 
designated critical habitat. Regulations implementing the requirements 
of section 7 (50 CFR 402.02) define ``jeopardize the continued 
existence'' (of a species) and ``destruction or adverse modification'' 
(of critical habitat) so similarly that the two prohibitions are nearly 
identical, thus resulting in little additional protection through 
critical habitat designation.
    Section 9 of the Act also provides substantial protection to listed 
species by prohibiting any person (as opposed to section 7 that 
involves only Federal agencies) from such activities as taking listed 
species without proper permits, as well as controlling transportation, 
selling, and importing or exporting listed species. Critical habitat is 
not protected under section 9, so no effect on strictly non-Federal 
activities are added through critical habitat designation.
    Despite the little additional regulatory benefit critical habitat 
may provide listed species, section 4(a)(3) of the Act requires that 
critical habitat be designated for species listed as threatened or 
endangered unless such designation would not be prudent. Further, we 
believe designation of critical habitat for wintering piping plovers 
may be of some benefit. A critical habitat designation benefits species 
conservation by identifying important areas and by describing the 
features within those areas that are essential to conservation of the 
species, and alerting public and private entities to the areas' 
importance. Although the designation of critical habitat does not, in 
and of itself, restrict human activities within an area or mandate any 
specific management or recovery actions, it does help focus Federal, 
State, and private conservation and management efforts in such areas. 
Designating critical habitat may also provide some educational or 
informational benefits.
    Comment 3: When the Service listed the piping plover in the 1980's 
it did not designate critical habitat because it was believed 
unnecessary. Some commenters questioned why we now believe critical 
habitat designation is prudent.
    Our Response: Section 4(a)(3) of the Act states that when a species 
is added to the endangered species list, we must designate critical 
habitat to the maximum extent prudent and determinable. The 1985 final 
listing rule for the piping plover did not include a critical habitat 
designation, not because it was unnecessary, but because it was not 
determinable and so it was deferred for one year. We did not make a 
prudency determination or designate critical habitat by the end of that 
year. Because of this omission, in December 1996, Defenders of Wildlife 
(Defenders) filed a lawsuit against the Department of the Interior and 
the Service for failing to designate critical habitat for the piping 
plover. As a result of the lawsuit, the court ordered us to publish a 
proposed critical habitat designation for the piping plover in the 
breeding area in the Great Lakes by June 30, 2000, with a final rule by 
April 30, 2001. We were also ordered to designate critical habitat for 
the Great Plains population by May 31, 2001, with a final rule by March 
15, 2002. We have no evidence of vandalism or other threats that may 
occur based on disclosing the location of this species. Thus, we 
determined that the appropriate course of action would be to propose 
critical habitat for all US wintering piping plovers on the same 
schedule required, under court order, for the Great Lakes breeding 
population.
    Comment 4: The Service has disregarded the prohibitions in section 
3(5)(C) of the Act against designating the entire geographical area 
that could be occupied by the piping plover.
    Our Response: We did not designate the entire geographical area 
that can be occupied by wintering piping plovers. In fact, the censuses 
upon which we based our initial identification of potential critical 
habitat areas have detected less than half the piping plover numbers 
known from their breeding areas. One may infer that at least some 
piping plovers winter in areas other than those designated as critical 
habitat. Areas that were not included in critical habitat include many 
sites where plovers have been documented at least once, but records do 
not indicate a consistent use. For example, in Florida we did not 
include the South tip of Amelia Island, Nassau County; high marsh and 
salt pans of Charlotte Harbor State Buffer Preserve, Charlotte County; 
and Passage Key National Wildlife Refuge, Manatee County. Additional 
sites are listed in Comments B.2 and B.3. A piping plover may be 
observed at any given time at any location along the Gulf and Atlantic 
coasts. We included in this designation only the areas essential for 
the conservation and recovery of the species as supported by consistent 
use by piping plovers.
    Comment 5: Critical habitat for wintering piping plovers is not 
determinable because their biological needs are not sufficiently well 
known. Recovery plans for the species recommend significant research on 
wintering plovers; without such information it cannot be determined 
with reasonable scientific certainty which areas are essential to the 
species.

[[Page 36059]]

    Our Response: We are required to designate critical habitat for 
species at the time they are listed under the Act to the extent prudent 
and determinable under section 4(a)(3). Regulations implementing the 
listing provisions of the Act state that critical habitat is not 
determinable when the biological needs of the species are not 
sufficiently well known to permit identification of an area as critical 
habitat (50 CFR 424.12(a)(2)(ii)). In cases where critical habitat is 
not determinable the regulations allow only a one-year extension. At 
the end of the extension critical habitat must be designated based on 
such data available at that time (50 CFR 424.17(b)(2)).
    It has been over 15 years since the piping plover was listed under 
the Act, and a great deal of information has become available since the 
listing occurred. While we agree that more information would be 
preferable, we do not believe further delays in making this designation 
would be legally defensible under the statute and its regulations. In 
addition, the Act requires that our decisions be based on the best 
scientific and commercial information available, and does not require 
``reasonable scientific certainty.''
    Comment 6: A conclusion that areas identified during population 
surveys are essential to the plover population is speculative. Because 
a plover was sighted in an area does not make the area essential to the 
species' conservation.
    Our Response: We agree that the mere sighting of one or more 
individuals of a species does not necessarily mean the area of the 
sighting is essential to the species' conservation. In fact, for most 
species it is difficult to know with certainty that a particular area 
is essential to its conservation. However, the Act clearly requires 
that we make such judgements based on the best scientific and 
commercial information available. The census data tell us that plovers 
occur in an area, from which we can infer that the animal derives some 
useful life-history benefit. We believe these occurrence data 
constitute the best available information upon which to base this 
designation. We also note that the commenter did not suggest an 
alternative approach to arriving at a biologically sound critical 
habitat designation. Other research has shown what type of habitat 
features are necessary to provide for the life-cycle needs of the 
species. Together, this information suggests to us which areas are 
essential for the conservation of the species.
    Comment 7: Critical habitat should include only the minimum amount 
of habitat needed to avoid short-term jeopardy or habitat in need of 
immediate intervention.
    Our Response: We disagree. The Act requires that areas designated 
as critical habitat be essential to the conservation of the species. 
The term ``conservation'' is defined as ``* * * the use of all methods 
and procedures necessary to bring any [listed] species to the point at 
which measures provided pursuant to this Act are no longer necessary * 
* *'' (i.e., the species is recovered and eligible for removal from the 
list of threatened and endangered species). Since the stated purpose of 
the Act includes ``* * * to provide a program for the conservation of 
such endangered species and threatened species * * *'', it is clear 
that Congress intended the provisions of the Act to be used for such 
conservation purposes rather than as stop-gap measures to prevent 
extinction.
    Comment 8: The proposal contains 686 miles of privately owned 
shoreline. The Service justifies this by stating that shoreline 
development poses the biggest threat to plover habitat, especially 
along the Texas Coast. However, the regulatory basis for designation 
should be the evaluation of the habitat rather than the potential for 
development.
    Our Response: As discussed above, the critical habitat designation 
is based on an evaluation of habitat and the survey data on piping 
plovers. This critical habitat designation for the wintering population 
of the piping plover includes areas that we know currently support the 
species. Areas described in the approved recovery plans (USFWS 1988, 
1996) as essential to the conservation of the wintering population of 
the piping plover are being designated as critical habitat, if recent 
data support consistent use and the habitat remains suitable.
    Comment 9: The Service designated areas that are inhabited by 
people and where plovers and people co-exist. Therefore critical 
habitat is unnecessary.
    Our Response: We agree that piping plovers and people can co-exist 
in wintering areas. However, as explained in this final rule, critical 
habitat is not considered to be an optional process, and the fact that 
people use areas used by plovers does not provide sufficient 
justification for not designating critical habitat. We believe that the 
effect on plovers of normal human presence in their wintering habitat 
does not have serious consequences to the plover at the population 
level. See our response to Issue A.15 above.

Issue J: Effects of Designation

    These comments involve issues related to the effects of designation 
on land management and habitat-modifying activities within the 
designated areas.
    Comment 1: How will the proposed designation impact the future of 
Packery Channel? Will it have a minimal effect as discussed, or will it 
cause the Packery Channel opening to be shut down completely?
    Our Response: We completed a Biological Opinion (BO) on August 1, 
1994, for U.S. Army Corps of Engineers Permit Number 18344(01) Fish 
Trackers/Reopen Packery Channel Association. The BO included a 
``finding of not likely to jeopardize the continued existence of the 
threatened and endangered populations of the piping plover'' based on 
the project design included in Permit 18344(01). Refer to Comment E.3 
for the circumstances requiring Federal actions that have already 
undergone section 7 consultation to reinitiate that consultation.
    Comment 2: Is it necessary to obtain a permit and contract an 
environmental consultant at the private landowner's expense, because 
the property that he/she wishes to build a house on is on the 
beachfront, upland area, or sand dune?
    Our Response: Prior to procuring a consultant, we suggest that you 
contact the Service representative in your particular State (see the 
contact list in the ``Effects of Critical Habitat Designation'' section 
of this rule for the name and phone number of the person to contact). 
As discussed in comment E.5, all landowners, public and private, are 
responsible for making sure their actions do not result in the 
unauthorized taking of a listed species, regardless of whether or not 
the activity occurs within designated critical habitat. Take is defined 
as ``harass, harm, pursue, hunt, shoot, wound, capture, collect, or 
attempt to engage in any such conduct.'' Take is further defined by 
regulation to include ``significant habitat modification or degradation 
that actually kills or injures wildlife.'' This definition was upheld 
by the U.S. Supreme Court in Sweet Home Chapter of Communities for a 
Great Oregon et al. v. Babbitt, 515 U.S. 687 (1995).
    All Federal agencies are responsible to ensure that the actions 
they fund, permit, or carry out do not result in jeopardizing the 
continued existence of a listed species, regardless of critical habitat 
designation. ``Jeopardize the continued existence of'' means to engage 
in an action that would be expected, directly or indirectly, to reduce 
appreciably the likelihood of both the survival and recovery of a 
listed species in the wild by reducing the reproduction, numbers, or

[[Page 36060]]

distribution of that species (50 CFR 402.02). Because we designated 
only areas within the geographic range occupied by the piping plover, 
any activity that would result in an adverse modification of the 
plover's critical habitat would virtually always also jeopardize the 
continued existence of the species. Federal agencies must consult 
pursuant to section 7 of the Act on all activities that will adversely 
affect the plover both within and outside designated critical habitat.

Issue K: Economic Comments

    Numerous persons commented on the expected economic effects of the 
designation and on the draft economic analysis.
    Comment 1: The designation of critical habitat on Padre Island 
National Seashore would restrict the ability to explore and develop 
mineral operations and cause a sizable economic impact if indeed these 
restrictions are upheld.
    Our Response: As discussed in the ``Exclusions Under 4(b)(2) of the 
Act'' section of this rule, we considered the effects on exploration 
and development of mineral operations that would result from including 
Padre Island National Seashore in the final designation. Based on our 
analysis under section 4(b)(2), we concluded that the benefits of 
excluding Padre Island National Seashore were greater than the benefits 
of including, and therefore, we have excluded that area from the final 
designation.
    Comment 2: Some commenters stated that the DEA was inadequate 
because it is based on the faulty assumption that the designation will 
not result in any greater burden than under the ``baseline'' of the 
listing of the plover. Relatedly, some commenters believed that we 
should have quantified the cost of designating the plover as an 
endangered species in our baseline calculations.
    Our Response: The economic analysis does determine that there is a 
slight additional burden due to the designation of critical habitat for 
wintering piping plover and the economists attempted to quantify these 
costs in their analysis. See the ``Economics Analysis'' section of this 
rule.
    While listing effects can be significant in some cases due to the 
prohibition on ``taking'' a listed species, Congress specifically 
directed the Service to base its listing decisions strictly on 
biological considerations. Economic effects caused by listing the 
wintering population of the piping plover as a federally protected 
threatened species, and by other statutes, are the baseline against 
which we evaluated, under section 4(b)(2) of the Act, the effects of 
the critical habitat designation.
    Comment 3: Some commenters stated that they believed that the 
economic analysis should be completed before the rule is formally 
proposed.
    Our Response: Given the nature of this rulemaking, we were unable 
to complete the economic analysis at the time we formally proposed this 
rule to the public. Both the proposed rule date and final rule date 
were established as a result of court rulings, that allowed less time 
than generally preferred by us to conduct a rulemaking. As a result, 
although we began the economic analysis before the rule was formally 
proposed, we were not able to complete it until later. Once we 
completed the economic analysis, we published in the Federal Register a 
Notice of Availability (65 FR 52691, August 30, 2000) and gave the 
public 90 days to comment on the analysis, along with other aspects of 
the rule. We have considered these comments and have produced a revised 
economic analysis, that we have submitted to OMB for review as part of 
this rulemaking package.
    Comment 4: Some commenters believed that our economic analysis 
focused too narrowly on either current or near-term planned activities 
at the expense of longer-term planned activities.
    Our Response: The revised analysis used a ten-year time horizon to 
identify likely current and planned activities that may be affected by 
critical habitat designation. We limited our analysis to a ten-year 
horizon because the estimation of future impacts becomes extremely 
speculative beyond that point. As stated in the analysis, our approach 
for estimating the potential effects of critical habitat designation 
followed four basic steps. First, the analysis identified land uses and 
activities likely to be affected by critical habitat designation. 
Second, the analysis looked at Federal nexuses that may allow certain 
land uses and activities conducted on critical habitat to be consulted 
on under section 7 of the Act. Third, out of the activities likely to 
occur on critical habitat having a Federal nexus, the analysis 
considered the likelihood that the Service would consult with the 
Federal agency under section 7 of the Act because such activities have 
the potential to adversely affect the plover or its critical habitat. 
Under this consideration, the analysis considered the likelihood that 
critical habitat designation would impose additional effects beyond 
listing, including effects on section 7 consultations and potential 
mitigation. Finally, the analysis also considered the potential for any 
further indirect effects resulting from the designation. While we 
believe the analysis did a credible job in identifying both current and 
planned future land use activities within proposed critical habitat, we 
also believe that to speculate about long-term, future activities on 
particular units, that are different than those currently being 
conducted or envisioned, adds little information of value to the 
decision-making process.
    Comment 5: We received many comments concerning the impact that 
dredging and the disposal of dredged materials, along with beach 
nourishment, would have on critical habitat.
    Our Response: Our revised economic analysis addresses this issue in 
greater specificity. In summary, we do not believe that beach 
nourishment activities, along with dredging and disposal activities, 
are likely to be impacted by this critical habitat designation. In the 
vast majority of cases we support beach nourishment activities as they 
benefit the wintering plover by providing them increased foraging 
habitat. Dredging and disposal activities have also not been 
significantly impacted by the presence of the plover, and we see no 
reason why critical habitat designation would alter this scenario.
    Comment 6: We received several comments from citizens concerned 
specifically about the impact that critical habitat designation would 
have on Texas Gulf Coast activities including: (1) The exploration, 
development, and production of oil and gas reserves; (2) recreational 
use of coastal areas; (3) real-estate development projects for 
residential and commercial use; and (4) transportation of commodities 
on the Gulf Intracoastal Waterway. One economic study submitted by a 
commenter suggested that critical habitat designation could result in a 
total net present value cost over 30 years of $261 to $979 million to 
the Laguna Madre Environs economy.
    Our Response: We believe that the above mentioned economic study 
submitted by BNP Petroleum Corporation overstates the effects that may 
result from this designation. The economic costs developed by the 
study's authors depend on two main assumptions. First, the authors 
assume that the critical habitat being designated for the wintering 
plover, contrary to our descriptions, consists of large areas of 
unoccupied territory lacking the necessary primary constituent elements 
needed to support the plover. As a result, the authors believe that 
delays will occur to future activities as project

[[Page 36061]]

proponents will need to enter into consultations with the Service, that 
will enviably lead to delays causing economic effects.
    Regarding the first assumption, critical habitat, by definition, 
only includes those areas containing the primary constituent elements 
identified in the rule. We believe that all of these areas are 
currently occupied by the wintering plover and that Federal agencies 
are already required to ensure that the activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of the plover. Federal agencies already must notify us of activities 
that may adversely affect the plover. Because we are only designating 
areas occupied by the plover and because any activities that may 
adversely modify critical habitat would also likely jeopardize the 
continued existence of the species, we do not believe that critical 
habitat designation will have any appreciable economic effect above 
current effects resulting from the listing of the plover in 1985.
    The BNP study estimates impacts to the natural gas industry, which 
constitutes the majority of their study's effects, based on the key 
assumption that critical habitat designation could result in project 
delays between six months and two years arising from section 7 
consultations. In a review of piping plover section 7 consultations in 
the Gulf Coast Sates where critical habitat is being designated, very 
few involved oil and gas exploration and production activities. Mostly 
this is because existing oil and gas production activity takes place 
offshore and is not on the beaches or flats occupied by plover and as a 
result these activities were not likely to adversely affect the 
species. Also, in many instances where oil and gas production 
activities affect the areas occupied by the plover, such as pipeline 
crossings and gathering stations for near shore production, either the 
environmental impacts to the plover were not significant enough to 
warrant a formal consultation or the activity lacked a Federal nexus. 
Although the permitting process for oil and gas exploration and 
production activities is complex and involves a myriad of Federal, 
State, and local requirements, a formal consultation is normally 
completed within 135 days. We therefore disagree with the study's 
authors that section 7 consultations can lead to significant project 
delays for the industry.
    Also, as noted in the BNP study, future production in the Gulf 
Coast is likely to occur in very deep water (14,000 to 18,000 feet), 
well away from critical habitat areas. This makes it highly unlikely 
critical habitat would have any effect. Due to the distance future 
production areas are from the shoreline, products will most likely be 
barged into existing ports with offloading facilities because it will 
be uneconomical or technologically infeasible to connect deepwater 
platforms to the existing infrastructure of near-shore pipelines. As a 
result, critical habitat areas are highly unlikely to be affected by 
future industry activities. In addition, we do not believe that the oil 
and gas industry will be affected by any significant increase in 
section 7 consultations because of this rulemaking, and we disagree 
with the findings in their study.
    That being said, the economic analysis prepared for the Service 
finds that the designation of critical habitat for the piping plover 
may result in additional section 7 consultation costs because future 
consultations would need to address critical habitat issues, in 
addition to the effects on the species, and would therefore require 
more time. Additionally, we acknowledge that some Federal agencies may 
initiate consultation more often than before, because critical habitat 
has increased their awareness of the species. Even though consideration 
of critical habitat is not likely to impose further project 
modifications beyond those required by the listing of the plover, 
project proponents may nonetheless incur costs above and beyond those 
attributable to the listing of the plover as a threatened species. 
These costs might include the value of time spent in conducting section 
7 consultations beyond those associated with the listing, and/or delays 
in implementing oil and gas activities. Refer to the ``Exclusions Under 
4(b)(2) of the Act'' section of this rule for our analysis under 
section 4(b)(2) of the Act.
    Similarly, we do not believe that this rule will have a significant 
effect on the other three factors: (1) Recreational use of coastal 
areas; (2) real-estate development projects for residential and 
commercial use; and (3) transportation of commodities on the Gulf 
Intracoastal Waterway. First, we do not believe that recreational use 
of coastal areas will be affected because no such effects have been 
experienced since the plover was listed in 1985, combined with the fact 
that we are only designating occupied critical habitat. Furthermore, 
the plovers spend the wintering season foraging and roosting and then 
migrate north in the summer where they breed. Breeding areas in the 
north may experience partial or temporary closures during the breeding 
season to protect ground level nests but such effects are not expected 
to occur in the wintering areas affected by this rule because of the 
fact that the birds are mobile and not nesting during the wintering 
season. Furthermore, in a recent study that looked at the effect of 
beach closures in breeding areas, no significant economic effects were 
identified due to the availability of nearby beaches (Unsworth, et al., 
An Economic Analysis of Piping Plover Recovery Activities in the 
Atlantic Coast, 1998).
    Our revised economic analysis also considered in greater detail the 
effect the rule could have on real-estate development projects. Using a 
conservative assumption that critical habitat designation could result 
in one to two and one-half percent of forgone future lot development 
due to project modifications resulting from critical habitat 
designation, the analysis found that total costs to developers over a 
ten-year time frame could range from about $1.5 million to $4.5 
million. This represents less than one percent of the total estimated 
value of future planned housing in southern Texas. Furthermore, the 
revised analysis found no evidence to support the claim that the 
section 7 consultation process has resulted in significant time delay 
estimates as argued by the commenter.
    Finally, the revised economic analysis also further considered the 
effect the rule could have on commodity transportation within the Gulf 
Intracoastal Waterway. The commenter was specifically concerned that 
the designation of critical habitat could result in the closure of the 
waterway because the Service could require disposal of dredged 
materials to be disposed further from the beach areas, which could 
become cost prohibitive. This scenario, however, is highly unlikely as 
dredging and disposal operations in the area have taken place 
continually since the plover was originally listed as an endangered 
species in 1985. Because this area is occupied by the plover, any 
effects on dredging and disposal activities in the future would occur 
regardless of critical habitat designation. However, with a single, 
unique exception that is addressed in the revised analysis, dredging 
and disposal activities have not been negatively impacted by the 
presence of the plover and consequently are not expected to be further 
impacted by critical habitat.
    Comment 7: We received many comments from citizens of Marco Island, 
Florida concerned over the impact that critical habitat would have on 
their recreational beach-use activities

[[Page 36062]]

as well as spillover effects to their local housing values.
    Our Response: As mentioned previously, we do not believe that 
recreational use of coastal areas will be significantly affected 
because recreational impacts since listing have been minimal and only 
habitat that is currently occupied by the wintering plover is being 
designated. Again, while beach closures, or more commonly beach 
restrictions, have occurred to protect the piping plover, these 
closures occur during breeding season in the summer. Plovers typically 
migrate north in the spring and summer seasons to breed and occupy 
areas outside of wintering habitat, which this rule addresses. 
Furthermore, in a recent study that looked at the possible effects of 
beach closures in breeding areas, no significant economic effects were 
identified due to the availability of nearby beaches (Unsworth, et al., 
An Economic Analysis of Piping Plover Recovery Activities in the 
Atlantic Coast, 1998).
    Comment 8: Many commenters expressed concern that the designation 
includes unoccupied habitat that does not contain the primary 
constituent elements necessary to support the plovers and that the DEA 
overlooked this effect.
    Our Response: The determination of whether or not proposed critical 
habitat is within the geographic range occupied by the plovers is part 
of the biological decision-making process and lies beyond the scope of 
an economic analysis. For a discussion of the biological justification 
of why we believe the area being designated is within the geographical 
area occupied by the plover, see our responses to Issue A.
    Comment 9: The Environmental Protection Agency (EPA) indicated that 
our economic analysis should evaluate Executive Order 12898, Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations.
    Our Response: Executive Order 12898 requires that each Federal 
agency make achieving environmental justice part of its mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects of its programs, 
policies, and activities on minorities and low-income populations. We 
do not believe that the designation of critical habitat for endangered 
and threatened species results in any changes to human health or 
environmental effects on surrounding human populations, regardless of 
their socioeconomic characterization. As such, we do not believe that 
Executive Order 12898 applies to critical habitat designations.

Issue L: Critical Habitat and Habitat Conservation Plans (HCPs)

    In the proposed rule we requested input on alternative approaches 
to issuing any future incidental take permits under section 10(a)(1)(B) 
of the Act, and how that process may be influenced by critical habitat 
designation. Five alternatives were provided:
    (1) Retain critical habitat designation within the HCP boundaries 
and use the section 7 consultation process on the issuance of the 
incidental take permit to ensure that any take we authorize will not 
destroy or adversely modify critical habitat;
    (2) Revise the critical habitat designation upon approval of the 
HCP and issuance of the section 10(a)(1)(B) permit to retain only 
preserve areas, on the premise that they encompass areas essential for 
the conservation of the species within the HCP area and require special 
management and protection in the future. Assuming that we conclude, at 
the time an HCP is approved and the associated incidental take permit 
is issued, that the plan protects those areas essential to the 
conservation of the piping plover, we would revise the critical habitat 
designation to exclude areas outside the reserves, preserves, or other 
conservation lands established under the plan. Consistent with our 
listing program priorities, we would publish a proposed rule in the 
Federal Register to revise the critical habitat boundaries;
    (3) As in (2) above, retain only preserve lands within the critical 
habitat designation, on the premise that they encompass areas essential 
for conservation of the species within the HCP area and require special 
management and protection in the future. However, under this approach, 
the exclusion of areas outside the preserve lands from critical habitat 
would occur automatically upon issuance of the incidental take permit. 
The public would be notified and have the opportunity to comment on the 
boundaries of the preserve lands and the revision of designated 
critical habitat during the public review and comment process for HCP 
approval and permitting;
    (4) Remove designated critical habitat entirely from within the 
boundaries of an HCP when the plan is approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no further special management or protection 
is required. Consistent with our listing program priorities, we would 
publish a proposed rule in the Federal Register to revise the critical 
habitat boundaries; or
    (5) Remove designated critical habitat entirely from within the 
boundaries of HCPs when the plans are approved (including preserve 
lands), on the premise that the HCP establishes long-term commitments 
to conserve the species and no additional special management or 
protection is required. This exclusion from critical habitat would 
occur automatically upon issuance of the incidental take permit. The 
public would be notified and have the opportunity to comment on the 
revision of designated critical habitat during the public notification 
process for HCP approval and permitting.
    Comment 1: All who commented on this issue favor alternative 1, to 
retain critical habitat within any future HCP boundaries and use the 
section 7 consultation process to evaluate the effects of the HCP on 
critical habitat. Most commenters believed that alternatives 3 through 
5 are illegal under the Act, and that alternative 2 would likely be 
illegal as well.
    Our 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. A detailed rationale for this determination can be found in the 
``Exclusions Under 4(b)(2) of the Act'' section of this final rule.
    We anticipate that any future HCPs in the range of wintering 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 states 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

[[Page 36063]]

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 wintering piping plovers 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 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 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, we may reassess the relevant 
critical habitat boundaries in light of the protection and management 
provided by the HCP. We may 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.

Issue M: Other Comments

    Comment 1: The Service was ordered to designate critical habitat 
for piping plovers breeding in the Great Lakes and Great Plains states. 
How is the Service addressing the Atlantic Coast breeding population 
that might breed or winter in Great Lakes/Great Plains wintering 
locations?
    Our Response: The wintering range of piping plovers from all three 
breeding populations overlaps the documented breeding range of the 
Atlantic Coast population in North Carolina and at one site in northern 
South Carolina. The designation of critical habitat for wintering and 
migrating piping plovers in this final rule, however, reflects the 
known distribution and habitat requirements of piping plovers during 
the non-breeding portion of their life-cycle, but provides the 
protection offered by critical habitat year-round. Outside of their 
breeding range, piping plovers are protected as a threatened species 
regardless of their originating breeding population, and this critical 
habitat designation encompasses wintering habitat essential to the 
conservation of piping plovers from all three breeding populations.
    Comment 2: In order to comply with the Act the Service must 
designate critical habitat for breeding and migratory piping plovers on 
the Atlantic Coast.
    Our 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 Act's 
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. The other two peer reviewers did not respond.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent expert opinions from five persons who 
are familiar with this species to peer-review the proposed critical 
habitat designation. Three of these experts provided us with a written 
response generally supporting the designation and providing additional 
information, that we have incorporated into the rule as appropriate.
    One of the reviewers stated her view that only sites with recorded 
plover use should be designated, and that the designation could be 
subsequently revised as new sites become known. However, she also 
stated her support for designating larger areas when at least some of 
these larger units have records of plover use. This is generally the 
approach we took. We sincerely appreciate the responses of these peer 
reviewers, and believe their input has provided a great deal of support 
for this designation.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) 
The specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' means the use of all methods and procedures 
that are necessary to bring an endangered or threatened species to the 
point at which listing under the Act is no longer necessary. Thus, 
critical habitat areas should provide sufficient habitat to support the 
species at the population level and geographic distribution that are 
necessary for recovery.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
excluding those areas outweigh the benefits of including the areas 
within the critical habitat, providing the exclusion will not result in 
the extinction of the species.
    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, to the extent known using 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)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. We 
are required to base our designations on what, at the time of 
designation, we believe to be essential to the species and in need of 
special management considerations or protection.
    Our regulations state that, ``The Secretary shall designate as 
critical

[[Page 36064]]

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, we will not designate critical habitat in 
areas outside the geographic area occupied by the species, unless the 
best available scientific and commercial data demonstrate that the 
conservation needs of the species can not be met by a designation that 
is limited to areas occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (Vol. 
59, p. 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, all should understand 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. We 
specifically anticipate that 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.
    This critical habitat designation for the wintering population of 
the piping plover includes areas that we know currently support the 
species. Areas described in the approved recovery plans (USFWS 1988, 
1996) as essential to the conservation of the wintering population of 
the piping plover are being designated as critical habitat, if recent 
data support consistent use and the habitat remains suitable. However, 
the recovery plans did not include the most recent comprehensive winter 
survey data and, therefore, the plans did not identify all possible 
areas essential to the survival and recovery of the species. Thus, we 
identified additional areas essential to the species' conservation, 
based upon unpublished data collected by state agencies, Christmas bird 
counts, individual birders, master's theses (Nicholls 1989, Climo 1998) 
and published data (Sprandel et al. 1997).
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas that contain the 
physical and biological features that are essential for the 
conservation of that species. Designation of critical habitat alerts 
the public as well as land-managing agencies to the importance of these 
areas.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat by actions carried out, funded, or authorized by a 
Federal agency. Aside from the protection that may be provided under 
section 7, the Act does not provide other forms of protection to lands 
designated as critical habitat. Because consultation under section 7 of 
the Act does not apply to activities on private or other non-Federal 
land that do not involve a Federal action, critical habitat designation 
would not afford any protection under the Act from such activities on 
these lands.
    Designating critical habitat does not, in itself, lead to the 
recovery of a listed species. The designation does not establish a 
reserve, create a management plan, establish numerical population 
goals, prescribe specific management practices (inside or outside of 
critical habitat), or directly affect areas not designated as critical 
habitat. Specific management recommendations for areas designated as 
critical habitat are most appropriately addressed in recovery and 
management plans, and through section 7 consultation.

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 and to consider those 
physical and biological features that are essential to the conservation 
of the species and that may require special management considerations 
and protection. Such requirements include, but are not limited to, 
space for individual and population growth, and for normal behavior; 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; and habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of a species.
    Behavioral observations of piping plovers on the wintering grounds 
suggest that they spend the majority of their time foraging (Nicholls 
and Baldassarre 1990b; Drake 1999a, 1999b). Primary prey for wintering 
plovers includes polychaete marine worms, various crustaceans, insects, 
and occasionally bivalve mollusks (Nicholls 1989; Zonick and Ryan 
1995), which they peck from on top or just beneath the surface of moist 
or wet sand, mud, or fine shell. In some cases, this substrate may be 
covered by a mat of blue-green algae. When not foraging, plovers 
undertake various maintenance activities including roosting, preening, 
bathing, aggressive encounters (with other piping plovers and other 
species), and moving among available habitat locations (Zonick and Ryan 
1996). The habitats used by wintering birds include beaches, mud flats, 
sand flats, algal flats, and washover passes (areas where breaks in the 
sand dunes result in an inlet). Individual plovers tend to return to 
the same wintering sites year after year (Nicholls and Baldassarre 
1990b, Drake 1999a). Wintering plovers are dependent on a mosaic of 
habitat patches, and move among these patches depending on local 
weather and tidal conditions (Drake 1999b).
    Based upon the behavioral characteristics of wintering piping 
plovers, we have determined that the primary constituent elements 
essential for the conservation of wintering piping plovers are those 
habitat components that support foraging, roosting, and sheltering and 
the physical features

[[Page 36065]]

necessary for maintaining the natural processes that support these 
habitat components. The primary constituent elements are found in 
geologically dynamic coastal areas that support intertidal beaches and 
flats (between annual low tide and annual high tide) and associated 
dune systems and flats above annual high tide.
    Important components (primary constituent elements) of intertidal 
flats include sand and/or mud flats with no or very sparse emergent 
vegetation. In some cases, these flats may be covered or partially 
covered by a mat of blue-green algae. Adjacent unvegetated or sparsely 
vegetated sand, mud, or algal flats above high tide are also important, 
especially for roosting piping plovers. Such sites may have debris, 
detritus (decaying organic matter), or micro-topographic relief (less 
than 50 cm above substrate surface) offering refuge from high winds and 
cold weather. Important components of the beach/dune ecosystem include 
surf-cast algae for feeding of prey, sparsely vegetated backbeach 
(beach area above mean high tide seaward of the dune line, or in cases 
where no dunes exist, seaward of a delineating feature such as a 
vegetation line, structure, or road) for roosting and refuge during 
storms, spits (a small point of land, especially sand, running into 
water) for feeding and roosting, salterns (bare sand flats in the 
center of mangrove ecosystems that are found above mean high water and 
are only irregularly flushed with sea water (Myers and Ewel 1990)) 
(biologists have documented use of salterns by piping plovers in 
southwest Florida) and washover areas for feeding and roosting. 
Washover areas are broad, unvegetated zones with little or no 
topographic relief, that are formed and maintained by the action of 
hurricanes, storm surge, or other extreme wave action. Several of these 
components (sparse vegetation, little or no topographic relief) are 
mimicked in artificial habitat types used less commonly by piping 
plovers, but that are considered critical habitat (e.g., dredge spoil 
sites).
    These habitat components are a result of the dynamic geological 
processes that dominate coastal landforms throughout the wintering 
range of piping plovers. These geologically dynamic coastal regions are 
controlled by processes of erosion, accretion, succession, and sea-
level change. The integrity of the habitat components depends upon 
daily tidal events and regular sediment transport processes, as well as 
episodic, high-magnitude storm events; these processes are associated 
with the formation and movement of barrier islands, inlets, and other 
coastal landforms. By their nature, these features are in a constant 
state of change; they may disappear, only to be replaced nearby as 
coastal processes act on these habitats. Given that piping plovers 
evolved in this dynamic system, and that they are dependent upon these 
ever-changing features for their continued survival and eventual 
recovery, our critical habitat boundaries incorporate sites that 
experience these natural processes and include sites that may lose and 
later develop appropriate habitat components.
    In most areas, wintering piping plovers are dependent on a mosaic 
of sites distributed throughout the landscape. The annual, daily, and 
even hourly availability of the habitat patches is dependent on local 
weather and tidal conditions. For example, a single piping plover may 
leave a site if it becomes inundated by a high tide or storm event, or 
if high winds or cold temperatures make the site unsuitable for 
foraging or roosting. This bird will move to other patches within the 
landscape mosaic that might provide refuge from inclement weather 
conditions, or that simply provide a roosting site until conditions 
become favorable to resume foraging.

Methods

    In determining areas that are essential to conserve the wintering 
population of piping plover, we solicited information from 
knowledgeable biologists and reviewed the available information 
pertaining to habitat requirements of the species. We used areas 
identified in approved recovery plans and current draft recovery plans 
to initially suggest important areas essential for the recovery of the 
species. These areas were then further evaluated using site-specific 
data, such as documented bird observations. To map areas essential to 
the conservation of the species, we used GIS (described in our response 
to comment G.3) and data on known piping plover wintering locations, 
digital aerial photographs and regional shoreline-defining electronic 
files. Sources of data providing these locations include two 
international piping plover censuses (conducted by State and Federal 
biologists and local birders) carried out in January of 1991 and 1996, 
published reports (a complete list of all references cited in this 
final rule are available upon request from the Corpus Christi 
Ecological Services Field Office, see ADDRESSES section), Christmas 
bird counts, and other data from surveys focusing on shorebird 
distribution and abundance.
    We have included those areas along the coast for which occurrence 
data indicate a consistent use (observations over more than one 
wintering season) by piping plovers within this designation. The only 
areas included in the proposed rule that did not have survey data 
showing that they are used by plovers were the Mississippi River and 
the Wax Lake Outlet Deltas. We included those areas in the proposed 
rule because of the high probability of use by plovers due to the broad 
expanse of mudflats known to exist in the river deltas. However, 
adequate census data were not available to provide reliable presence or 
absence information for the plover until recently (U.S. Fish and 
Wildlife Service and Louisiana Department of Wildlife and Fisheries 
unpublished data, 2001), because these areas are remote and difficult 
to access and thus had not been surveyed. Since the proposed rule, we 
have surveyed these areas (Mississippi River Delta in December 2000; 
and the Wax Lake Outlet Delta during the February International Piping 
Plover Survey). Forty plovers were found on a few small dredged 
material islands in the Mississippi River Delta, none were found in the 
Wax Lake Outlet Delta. Those areas of the Mississippi Delta where no 
plovers were observed were not included (portions of LA-6) and the 
entire Wax Lake Outlet Delta (portions of Unit LA-2) was also not 
included in the final rule. This has resulted in less acreage being 
designated in Louisiana. Additionally, during the International Census 
in February 2001, 40 piping plovers were observed on the same dredged 
material islands in the Mississippi River Delta. Although we do not 
have data to document use of these areas over more than one wintering 
season, based on studies indicating that plovers exhibit a certain 
amount of site fidelity (see our response to Comment A.11 above.), and 
the large numbers of plovers observed at these sites, we consider it 
virtually certain that these areas are consistently used and have 
included them in the designation and consider these areas essential to 
the conservation of the species.
    For the proposed rule, units and shorelines were mapped at variable 
scales (zoom factors) and with less detail. For the final rule, all 
units and shoreline were mapped at 1:5000 or larger (greater zoom) 
scale. In addition to the standardized mapping scale, the units and 
shoreline were mapped more precisely. This change in mapping technique 
and detail resulted in an increase in reported total mapped shoreline 
kilometers and miles for some states. This also resulted in increases 
in reported mapped shoreline distances by ownership for some states. It 
also affected the reported total and

[[Page 36066]]

ownership acreages, in some cases resulting in an apparent increased 
area while in others the result was an apparent decrease in area. 
However, the areas included in the critical habitat designation are the 
same areas that we verbally described in the unit-by-unit descriptions 
in the proposed rule, except for areas which we omitted in the final 
designation (as described below in the ``Summary of Changes From the 
Proposed Rule'' section).
    In the proposed rule, a single buffer distance was set for all 
units in all states (500 m (1,640 ft)). Since this methodology resulted 
in areas of water (deeper than MLLW) and areas of dense vegetation 
being included in the designation, which are not utilized by piping 
plovers, we abandoned this methodology for a more precise means of 
defining the areas that contain the physical and biological features 
essential to the wintering piping plover. This change in methodology 
results in smaller units of designated critical habitat than that of 
the proposed rule. In order to capture the dynamic nature of the 
coastal habitat, and the intertidal areas used by the piping plover, we 
have textually described each unit as including the area extending out 
from the landward boundaries to the MLLW. MLLW, as defined in our 
response to comment A.12, is the mean of the lower low water height of 
each tidal day observed over the National Tidal Datum Epoch. While, 
MLLW is published information that can be determined through nautical 
charts, it is not currently available in a GIS version.
    Designating specific locations for critical habitat for the piping 
plovers is difficult because the coastal areas they use are constantly 
changing due to storm surges, flood events, and other natural geo-
physical alterations of beaches and shorelines. Thus, to best insure 
that areas considered essential to the piping plover are included in 
this designation, our textual unit descriptions will constitute the 
definitive determination as to whether an area is within the critical 
habitat boundary. Our textual unit descriptions describe the geography 
of the area using reference points, including the areas from the 
landward boundaries to the MLLW (which encompasses intertidal areas 
that are essential foraging areas for piping plovers) and describes 
areas within the unit that are utilized by the piping plover and 
contain the primary constituent elements (e.g., upland areas used for 
roosting and wind tidal flats used for foraging).
    For the proposed rule, ownership was assigned to three classes 
within a unit (Federal, State, and private). Federal lands were those 
federally owned; State lands and waters were those State owned; and 
private were all non-Federal or non-State owned lands. For this final 
rule, we have 3 classes (Federal, State, and other) for mapped 
shoreline and 3 classes (Federal, State, and other) for mapped unit 
area. Assignment is as follows: Federal--federally owned lands, State--
State owned lands, and Other--non-Federal or non-State owned lands. In 
the proposed rule, there were errors in the values reported in Table 2 
for Alabama and Texas, which we have corrected.
    In the final rule, to the maximum extent practicable, we mapped 
critical habitat in sufficient detail to exclude currently developed 
sites. However, we were unable to exclude all buildings, marinas, paved 
areas, boat ramps, exposed oil and gas pipelines, and similar 
structures. These areas do not contain primary constituent elements 
essential for piping plover conservation and are not considered 
critical habitat even though they are within the mapped critical 
habitat unit boundaries. The Service will continue to explore ways in 
which to identify areas within mapped critical habitat boundaries that 
are not considered critical habitat because they do not contain the 
primary constituent elements essential for piping plover conservation.

Critical Habitat Designation/Land Ownership

    The critical habitat areas contained within the conservation units 
described below constitute our best evaluation of areas needed for the 
conservation of the wintering piping plover. We may revise critical 
habitat through a rulemaking process if new information becomes 
available in the future.
    We calculated linear distances of critical habitat shoreline (in 
kilometers and miles) by ownership for each State (Table 1). In 
addition, State-level values of area in hectares and acres were 
calculated for the critical habitat units by ownership (Table 2). 
Ownership for both the shoreline and units were broken into three 
classes (Federal--Federally owned lands, State--State owned lands, and 
Other--non-Federal or non-State mapped lands). Assignment of ownership 
was based on existing digital State-level managed/protected lands 
geodataset (GIS data set) where possible. If no existing digital data 
were available, ownership was assigned based on other data sources.

  Table 1.--Approximate Shoreline Distances of Designated Critical Habitat for Wintering Piping Plover by State
                              (Rows) and Ownership (Columns) in Kilometers (Miles)
----------------------------------------------------------------------------------------------------------------
                                        Federal              State               Other               Total
----------------------------------------------------------------------------------------------------------------
NC..............................        1,24.9(77.4)          44.9(27.8)          33.5(20.8)        203.3(126.0)
SC..............................          25.2(15.6)          31.6(19.6)          43.9(27.2)         100.7(62.4)
GA..............................          52.3(32.4)          42.7(26.5)          39.7(24.6)         134.7(83.5)
FL..............................         109.0(67.6)        193.2(119.8)          38.6(23.9)       340.8(211.3 )
AL..............................          16.1(10.1)          21.8(13.6)          38.5(24.0)          76.4(47.7)
MS..............................          98.2(61.4)            0.0(0.0)         105.9(66.2)       204.1(127.6 )
LA..............................         143.2(89.5)        236.1(147.6)        168.6(105.4)        547.9(342.5)
TX..............................          88.2(54.7)          38.8(24.1)      1,156.8(718.5)      1,283.8(797.3)
                                 -------------------------------------------------------------------------------
    Total.......................        657.1(408.7)        609.1(379.0)    1,625.5(1,010.6)    2,891.7(1,798.3)
----------------------------------------------------------------------------------------------------------------


Table 2.--Approximate Land Area of Designated Critical Habitat Units for Wintering Piping Plover by State (Rows)
                                   and Ownership (Columns) in Hectares (Acres)
----------------------------------------------------------------------------------------------------------------
                                      Federal \1\          State \1\           Other \1\             Total
----------------------------------------------------------------------------------------------------------------
NC..............................       5,614(13,866)        2,062(5,093)          938(2,318)       8,614(21,277)
SC..............................            388(958)          663(1,639)        1,222(3,018)        2,273(5,615)
GA..............................        1,734(4,285)        1,437(3,551)        1,333(3,294)       4,504(11,130)

[[Page 36067]]

 
FL..............................       5,135(12,683)       5,070(12,524)          858(2,121)      11,063(27,328)
AL..............................            294(726)            292(722)          600(1,481)        1,186(2,929)
MS..............................        2,376(5,870)            0.0(0.0)        1,479(3,655)        3,855(9,525)
LA..............................        3,042(7,515)        3,246(8,019)        3,812(9,416)      10,100(24,950)
TX..............................        1,934(4,777)        2,604(6,432)      20,748(51,248)      25,285(62,454)
                                 -------------------------------------------------------------------------------
    Total.......................      20,517(50,680)      15,374(37,980)      30,990(76,551)     66,881(165,211)
----------------------------------------------------------------------------------------------------------------
\1\ Approximate land mass values that do not include intertidal areas.

    We have divided the lands designated as critical habitat into 142 
critical habitat conservation units that contain areas with the primary 
constituent elements for the piping plover in the wintering range of 
the species. These units are found in all eight States where piping 
plovers winter. Below, we describe each unit in terms of its location, 
approximate size, and ownership. Due to data limitations (resolution & 
availability) intertidal zone (area between high and low tide) could 
not be mapped; therefore, the size of each unit is considered 
approximate. These unit descriptions can be found in the regulatory 
section at the end of this rule, and are the definitive source for 
determining the critical habitat boundaries.

North Carolina (Maps Were Digitized Using 1993 DOQQs, Except NC-3 (1993 
DRG)

    Unit NC-1: Oregon Inlet. 404 ha (997 ac) in Dare County. This unit 
extends from the southern portion of Bodie Island to the northern 
portion of Pea Island. It includes all land south of the Oregon Inlet 
Marina and Fishing Center to 0.50 km (0.31 mile) south of the junction 
of Highway 12 and SR 1257. This unit includes lands from MLLW on the 
Pamlico Sound across (and including all land) to MLLW on Atlantic Ocean 
shoreline. Any emergent sandbars south and west of Oregon Inlet are 
included.
    Unit NC-2: Cape Hatteras Point. 465 ha (1149 ac) in Dare County. 
The majority of the unit is within Cape Hatteras National Seashore. 
This unit extends south from the Cape Hatteras Lighthouse to the point 
of Cape Hatteras and then extends west 6.4 km (4.0 mi) along Hatteras 
Cove shoreline. The unit includes lands from the MLLW on the Atlantic 
Ocean and stops landward where densely vegetated habitat, not used by 
the piping plover, begins and where constituent elements no longer 
occur.
    Unit NC-3: Clam Shoals. 28 ha (70 ac) in Dare County. The entire 
unit is owned by the State. This unit includes several islands in 
Pamlico Sound known as Bird Islands. This unit includes lands on all 
islands to the MLLW.
    Unit NC-4: Hatteras Inlet. 516 ha (1273 ac) in Dare and Hyde 
Counties. The majority of the unit is surrounded by Cape Hatteras 
National Seashore, but is privately owned. This unit extends west from 
the end of Highway 12 on the western portion of Hatteras Island to 1.25 
km (0.78 mi) southwest of the ferry terminal at the end of Highway 12 
on Ocracoke Island. It includes all lands where constituent elements 
occur from MLLW on the Atlantic Ocean across to MLLW on Pamlico Sound. 
All emergent sandbars within Hatteras Inlet between Hatteras Island and 
Ocracoke Island are also included.
    Unit NC-5: Ocracoke Island. 80 ha (197 ac) in Hyde County. The 
majority of this unit is within Cape Hatteras National Seashore. It 
includes the western portion of Ocracoke Island beginning 3.5 km (2.2 
mi) west of the junction of Highway 12 and the local road (no name) 
extending west to Ocracoke Inlet. It includes all land from MLLW on the 
Atlantic Ocean across to MLLW on Pamlico Sound. All emergent sandbars 
within Ocracoke Inlet are also included.
    Unit NC-6: Portsmouth Island-Cape Lookout. 3187 ha (7873 ac) in 
Carteret County. The entire unit is within Cape Lookout National 
Seashore. This unit includes all land to MLLW on Atlantic Ocean to MLLW 
on Pamlico Sound, from Ocracoke Inlet extending west to the western end 
of Pilontary Islands. This unit includes the islands of Casey, Sheep, 
Evergreen, Portsmouth, Whalebone, Kathryne Jane, and Merkle Hammock. 
This unit also extends west from the eastern side of Old Drum Inlet to 
1.6 km (1.0 mi) west of New Drum Inlet and includes all lands from MLLW 
on Atlantic Ocean to MLLW on Core Sound.
    Unit NC-7: South Core Banks. 552 ha (1364 ac) in Carteret County. 
The entire unit is within Cape Lookout National Seashore. This unit 
extends south from Cape Lookout Lighthouse, along Cape Lookout, to Cape 
Point and northwest to the northwestern peninsula. All lands from MLLW 
on the Atlantic Ocean, Onslow Bay, and Lookout Bight up to where 
densely vegetated habitat, not used by the piping plover, begins and 
the constituent elements no longer occur are included.
    Unit NC-8: Shackleford Banks. 716 ha (1769 ac) in Carteret County. 
The entire unit is within Cape Lookout National Seashore. This unit is 
in two parts: (1) The eastern end of Shackleford Banks from MLLW of 
Barden Inlet extending west 2.4 km (1.5 mi), including Diamond City 
Hills, Great Marsh Island, and Blinds Hammock; and, (2) The western end 
of Shackleford Banks from MLLW extending east 3.2 km (2.0 mi) from 
Beaufort Inlet. The unit includes all land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur and any emergent sandbars within 
Beaufort Inlet. This unit is bordered by Onslow Bay, Shackleford Slue, 
and Back Sound.
    Unit NC-9: Rachel Carson. 445 ha (1100 ac) in Carteret County. The 
entire unit is within the Rachel Carson National Estuarine Research 
Reserve. This unit includes islands south of Beaufort including Horse 
Island, Carrot Island, and Lennox Point. This unit includes entire 
islands to MLLW.
    Unit NC-10: Bogue Inlet. 143 ha (354 ac) in Carteret and Onslow 
Counties. The majority of the unit is privately owned, with the 
remainder falling within Hammocks Beach State Park. This unit includes 
contiguous land south, west, and north of Bogue Court to MLLW line of 
Bogue Inlet on the western end of Bogue Banks. It includes the sandy 
shoals north and adjacent to Bogue Banks and the land on Atlantic Ocean 
side to MLLW. This unit also extends 1.3 km (0.8 mi) west from MLLW of 
Bogue Inlet on the eastern portion of Bear Island.

[[Page 36068]]

    Unit NC-11: Topsail. 451 ha (1114 ac) in Pender County and Hanover 
County. The entire area is privately owned. This unit extends southwest 
from 1.0 km (0.65 mi) northeast of MLLW of New Topsail Inlet on Topsail 
Island to 0.53 km (0.33 mi) southwest of MLLW of Rich Inlet on Figure 
Eight Island. It includes both Rich Inlet and New Topsail Inlet and the 
former Old Topsail Inlet. All land, including emergent sandbars, from 
MLLW on Atlantic Ocean and sound side to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. In Topsail Sound, the unit stops 
as the entrance to tidal creeks become narrow and channelized.
    Unit NC-12: Figure Eight Island. 134 ha (331 ac) in New Hanover 
County. The majority of the unit is privately owned. This unit extends 
south from the western end of Beach Road on Figure Eight Island to the 
northern end of Highway 74 on Wrightsville Beach. The unit includes 
Mason Inlet and the sand and mudflats northwest of the inlet from MLLW 
on Atlantic Ocean to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.
    Unit NC-13: Masonboro. 61 ha (150 ac) in New Hanover County. The 
entire unit is within the North Carolina National Estuarine Research 
Reserve. This unit extends 1.1 km (0.70 mi) south from the MLLW of 
Masonboro Inlet on Masonboro Island. This unit includes all lands along 
the Atlantic Ocean, Masonboro Inlet, and Masonboro Sound from MLLW to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur.
    Unit NC-14: Carolina Beach Inlet. 374 ha (924 ac) in New Hanover 
County. The majority of the unit is within Myrtle Grove Sound on 
Masonboro Island and is owned by the North Carolina National Estuarine 
Research Reserve. It extends 1.80 km (1.12 mi) west along the south 
shoreline of Wolf Island from the mouth of the Altamaja sound. This 
unit extends south from 3.2 km (2.0 mi) north of MLLW at Carolina Beach 
Inlet on Masonboro Island to 1.1 km (0.70 mi) south of MLLW at Carolina 
Beach Inlet on Carolina Beach. It includes land from MLLW on Atlantic 
Ocean across and including lands to MLLW on the western side of 
Masonboro Island, excluding existing dredge spoil piles. Emergent sand 
bars within Carolina Beach Inlet are also included.
    Unit NC-15: Ft. Fisher. 790 ha (1951 ac) in New Hanover and 
Brunswick Counties. This unit is within Ft. Fisher State Recreation 
Area and Zeke's Island Estuarine Reserve. This unit extends south from 
Ft. Fisher Islands (from the rocks), south of the ferry terminal, to 
approximately 0.8 km (0.5 mi) south of MLLW at Corn Cake Inlet on Smith 
Island. It includes all land (including Zeke's Island) from MLLW on 
Atlantic Ocean across to MLLW on the eastern side of the Cape Fear 
River.
    Unit NC-16: Lockwood Folly Inlet. 36 ha (90 ac) in Brunswick 
County. The entire unit is on Oak Island (formerly known as the Town of 
Long Beach) and is privately owned. This unit extends from the end of 
West Beach Drive, west to MLLW at Lockwood Folly Inlet, including 
emergent sandbars south and adjacent to the island. This unit includes 
land from MLLW on Atlantic Ocean across to MLLW adjacent to the Eastern 
Channel and the Intracoastal Waterway.
    Unit NC-17: Shallotte Inlet. 120 ha (296 ac) in Brunswick 
County.The entire unit is privately owned. This unit begins just west 
of Skimmer Court on the western end of Holden Beach. It includes land 
south of SR 1116, to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur to the MLLW along the Atlantic Ocean. It includes the contiguous 
shoreline from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur along the Atlantic Ocean, Shallotte Inlet, and Intracoastal 
Waterway stopping north of Skimmer Court Road. The unnamed island and 
emergent sandbars to MLLW within Shallotte Inlet are also included.
    Unit NC-18: Mad Inlet. 112 ha (278 ac) in Brunswick County. The 
entire unit is privately owned. This unit extends west 1.2 km (0.75 mi) 
from the end of Main Street (SR 1177) on western Sunset Beach to the 
eastern portion of Bird Island and includes the marsh areas north of 
western Sunset Beach shoreline. The shoreline area begins at MLLW on 
the Atlantic Ocean and continues landward to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.

South Carolina (Maps Were Digitized Using 1994 DOQQs)

    Unit SC-1: Waites Island-North. 75 ha (186 ac) in Horry County. 
This unit includes the northern tip of Waites Island from the MLLW at 
Little River Inlet and runs west along the Atlantic Ocean shoreline 2.0 
km (1.25 mi) and includes land from the MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The unit continues north and west 
of Little River Inlet stopping at Sheephead Creek, including land from 
MLLW to dense vegetation line. The majority of the unit is privately 
owned.
    Unit SC-2: Waites Island-South. 58 ha (142 ac) in Horry County.This 
unit includes the southern tip of Waites Island from the MLLW at Hog 
Inlet and runs east along the Atlantic Ocean shoreline 0.80 km (0.50 
mi) and includes MLLW to where densely vegetated habitat, not used by 
the piping plover, begins and where the constituent elements no longer 
occur. It continues north and west of the Hog inlet, stopping at the 
first major tributary. Critical habitat includes from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur. Emerging sandbars 
within Hog Inlet and adjacent to the tip if eastern Cherry Grove Beach 
are also included from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begins and where 
the constituent elements no longer occur. The majority of this unit is 
privately owned.
    Unit SC-3: Murrells Inlet/Huntington Beach. 135 ha (334 ac) in 
Georgetown County. The majority of the unit is within Huntington Beach 
State Park. This unit extends from the southern tip of Garden City 
Beach, just south of the groins (a rigid structure or structures built 
out from a shore to protect the shore from erosion or to trap sand) 
north of Murrells Inlet from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begins and where 
the constituent elements no longer occur stopping perpendicular with 
the southern end of Inlet Point Drive. It includes from MLLW south of 
Murrells Inlet to the northern edge of North Litchfield Beach 
approximately 4.5 km (3.0 mi). The unit includes the MLLW from the 
Atlantic Ocean up to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. The lagoon at the north end of Huntington Beach State Park is 
also included.
    Unit SC-4: Litchfield. 11 ha (28 ac) in Georgetown County. This 
unit includes the southern tip of Litchfield Beach beginning 0.50 km 
(0.30 mi) north of Midway Inlet and stopping at the MLLW at Midway 
Inlet. It includes from the MLLW on the Atlantic Ocean shoreline across 
and including land to the MLLW on the back bayside. This unit is mostly 
privately owned.

[[Page 36069]]

    Unit SC-5: North Inlet. 99 ha (245 ac) in Georgetown County. The 
majority of the unit is within Tom Yawley Wildlife Center Heritage 
Preserve. This unit extends from MLLW to 1.0 km (.62 mi) north of North 
Inlet on Debidue Beach. It includes shoreline on the Atlantic Ocean 
from MLLW to the MLLW on the western side of the peninsula. This unit 
also includes from the MLLW south of North Inlet 1.6 km (1.0 mi). It 
includes the shoreline on the Atlantic Ocean from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. It includes shoreline running 
south and west of the inlet from the MLLW stopping at the MLLW at the 
first large tributary (no name).
    Unit SC-6: North Santee Bay Inlet. 305 ha (753 ac) in Georgetown 
County. The majority of the unit is within the Tom Yawley Wildlife 
Center Heritage Preserve and the Santee-Delta Wildlife Management Area. 
This unit is at the North Santee Bay inlet and includes lands of South 
Island, Santee Point, Cedar Island, and all of North Santee Sandbar. 
This unit includes from MLLW at North Santee Bay Inlet running north 
along the Atlantic Ocean side of South Island 7.2 km (4.5 mi), stopping 
0.60 km (0.4 mi) north of an unnamed inlet. It includes areas from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur. This unit 
includes the eastern side of Cedar Island adjacent to the North Santee 
Bay Inlet from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. All of North Santee Sandbar to MLLW is included.
    Unit SC-7: Cape Romain. 315 ha (777 ac) in Charleston County.The 
majority of the unit is within Cape Romain National Wildlife Refuge. 
This unit includes the MLLW to where densely vegetated habitat, not 
used by the piping plover, begins and where the constituent elements no 
longer occur on the southern and southeastern most 1.9 km (1.2 mi) 
portion of Cape Island, the southernmost portion of Lighthouse Island 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur, all 
of Lighthouse Island South to MLLW, and the southern side of the far 
eastern tip of Raccoon Key from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit SC-8: Bull Island. 134 ha (332 ac) in Charleston County. The 
majority of the unit is within Cape Romain National Wildlife Refuge and 
land owned by the South Carolina Department of Natural Resources. This 
unit includes from Schooner Creek on north and south of the river to 
north of Price's Inlet on the southern portion of Bull Island along the 
Atlantic Ocean 1.6 km (1.0 mi) and south of Price's Inlet on the 
northeast tip of Capers Island Heritage Preserve 1.4 km (.86 mi) along 
the Atlantic Ocean. All areas begin at MLLW and extend to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit SC-9: Stono Inlet. 495 ha (1223 ac) in Charleston County.Most 
of this unit is privately owned. It includes the eastern end of Kiawah 
Island (approximately 4.0 km (2.5 mi)) from MLLW on Atlantic Ocean 
running north to MLLW on first large tributary connecting east of Bass 
Creek running northeast into Stono River. It includes MLLW up to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur along Stono Inlet and 
River. All of Bird Key-Stono Heritage Preserve and all of Skimmer Flats 
to MLLW are included. The Golf course and densely vegetated areas are 
not included.
    Unit SC-10: Seabrook Island. 117 ha (290 ac) in Charleston 
County.This unit runs from just 0.16 km (0.10 mi) north of Captain Sams 
Inlet to the southwest approximately 3.4 km (2.1 mi) along the Atlantic 
Ocean shoreline. It includes land areas from the MLLW on the Atlantic 
Ocean to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur. Most 
of this unit is privately owned.
    Unit SC-11: Deveaux Bank. 130 ha (322 ac) in Charleston County. The 
entire unit is within Deveaux Bank Heritage Preserve. This unit 
includes all of Deveaux Island to the MLLW and is State-owned.
    Unit SC-12: Otter Island. 68 ha (169 ac) in Colleton County.The 
majority of the unit is within St. Helena Sound Heritage Preserve. This 
unit includes the southern portion of Otter Island to the eastern mouth 
of Otter Creek. It includes the MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The entire unit is State-owned.
    Unit SC-13: Harbor Island. 50 ha (122 ac) in Beaufort County. The 
majority of the unit is State-owned. This unit extends from the 
northeastern tip of Harbor Island and includes all of Harbor Spit. It 
begins at the shoreline east of Cedar Reef Drive running south, 
stopping at the mouth of Johnson Creek. It includes the MLLW on the 
Atlantic Ocean and St. Helena Sound to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur. All of Harber Spit to MLLW is included.
    Unit SC-14: Caper's Island. 238 ha (589 ac) in Beaufort County. 
Most of this unit is privately owned. This unit includes the southern-
most 4.5 km (2.8 mi) along the Atlantic Coast shoreline of Little 
Caper's Island beginning at MLLW on south side of the inlet (un-named). 
It includes the MLLW on the Atlantic Ocean shoreline to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit SC-15: Hilton Head. 43 ha (106 ac) in Beaufort County. The 
majority of this unit is State-owned. This unit includes the 
northeastern tip (Atlantic Ocean side) of Hilton Head Island and all of 
Joiner Bank. It begins at the shoreline east of northern Planters Row 
and ends at the shoreline east of Donax Road. It includes the MLLW of 
Port Royal Sound and the Atlantic Ocean to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. All of Joiner Bank to MLLW is 
included.

Georgia (Maps Were Digitized Using 1993-94 DOQQs)

    Unit GA-1: Tybee Island. 37 ha (91 ac) in Chatham County. The 
majority of the unit is privately owned. This unit extends along the 
northern tip of Tybee Island starting from 0.8 km (0.5 mi) northeast 
from the intersection of Crab Creek and Highway 80 to 0.7 km (0.41 mi) 
northeast from the intersection of Highway 80 and Horse Pen Creek. The 
unit includes MLLW on Savannah River and Atlantic Ocean to where 
densely vegetated habitat or developed structures, not used by the 
piping plover, begin and where the constituent elements no longer 
occur.
    Unit GA-2: Little Tybee Island. 719 ha (1776 ac) in Chatham County. 
The majority of the unit is within Little Tybee Island State Heritage 
Preserve. This unit extends just south of the first inlet to Wassaw 
Sound along the Atlantic Ocean coastline, extending north along the 
sound 1.7 km (1.1 mi). It includes habitat from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit GA-3: North Wassaw Island. 108 ha (267 ac) in Chatham County. 
The

[[Page 36070]]

entire unit is within Wassaw National Wildlife Refuge. This unit 
includes the north-east tip of Wassaw Sound, 1.6 km (1.0 mi) along the 
inlet side and extending south along the Atlantic Ocean shoreline for 
1.6 km (1.0 mi). It includes land from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit GA-4: South Wassaw Island. 61 ha (151 ac) in Chatham County. 
The entire unit is within Wassaw National Wildlife Refuge. This unit 
extends from the last southern 1.6 km (1.0 mi.) on Atlantic Ocean side, 
around the southern tip of Wassaw Island, up to mouth of Odingsell 
River. It includes land from MLLW to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur.
    Unit GA-5: Ossabaw Island. 434 ha (1072 ac) in Chatham County. 
entire unit is within Ossabaw Island State Heritage Preserve. This unit 
includes the northeastern tip from the mouth of the Bradley River east 
and 12 km (7.5 mi) south along the Atlantic Ocean shoreline to a point 
0.4 km (0.25 mi) past the south-center inlet. It includes land from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit GA-6: St. Catherine's Island Bar. 54 ha (135 ac) in Liberty 
County. The entire unit is State owned and located east-northeast of 
St. Catherine's Island. This unit includes the entire St. Catherine's 
Island Bar to MLLW.
    Unit GA-7: McQueen's Inlet. 215 ha (532 ac) in Liberty County. The 
majority of the unit is private land along the eastern-central 
coastline on St. Catherine's Island. This unit extends from McQueen's 
Inlet north approximately 3.5 km (2.2 mi) and south approximately 1.8 
km (1.1 mi). It includes land from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit GA-8: St. Catherine's Island. 60 ha (147 ac) in Liberty 
County. The majority of the unit is private land on the southern tip of 
St. Catherine's Island. This unit starts 1.2 km (0.75 mi) north of 
Sapelo Sound (along Atlantic Ocean shoreline) and stops inland at 
Brunsen Creek. It includes land from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit GA-9: Blackbeard Island. 129 ha (319 ac) in McIntosh County. 
The entire unit is within the Blackbeard Island National Wildlife 
Refuge. This unit includes the northeastern portion of the island 
beginning just east of the mouth of the confluence of McCloy Creek and 
Blackbeard Creek and continuing east and running south along the 
Atlantic Ocean shoreline for 1.4 km (.90 mi). It includes land from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit GA-10: Sapelo Island. 85 ha (210 ac) in McIntosh County. The 
entire unit is State-owned and within Sapelo Island. The unit extends 
south of Cabretta Tip approximately 0.2 km (0.13 mi) and north of 
Cabretta Tip 1.6 km (1.0 mi). It includes land from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur.
    Unit GA-11: Wolf Island. 238 ha (590 ac) in McIntosh County. The 
majority of the unit is within Wolf Island National Wildlife Refuge and 
private lands just north of the Refuge. This unit includes the 
southeastern tip of Queen's island adjacent to the Doboy Sound and 
includes the eastern shoreline of Wolf Island. It includes land from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit GA-12: Egg Island Bar. 61 ha (151 ac) in McIntosh County. This 
unit is State owned and includes all of Egg Island Bar to the MLLW.
    Unit GA-13: Little St. Simon's Island. 609 ha (1505 ac) in Glynn 
County. The majority of the unit is private land on Little St. Simon's 
Island. This unit includes the entire eastern coastline along Little 
St. Simon's Island. It begins 1.1 km (.70 mi) west of the northeast tip 
of Little St. Simon's Island and runs east and then south along the 
Atlantic Ocean shoreline stopping at the minor tributary (no name) on 
the southeast tip of Little St. Simon's Island north of Hampton Creek. 
It includes land from MLLW to where densely vegetated habitat, not used 
by the piping plover, begins and where the constituent elements no 
longer occur. All of Pelican Spit to MLLW is included when this sand 
bar is emergent.
    Unit GA-14: Sea/St. Simon's Island. 191 ha (471 ac) in Glynn 
County. The majority of the unit is private land on the south tip of 
Sea Island and on the east beach of St. Simons Island. This unit 
extends north of Gould's Inlet (Sea Island) 2.5 km (1.54 mi) starting 
just south of the groin and extends south of Gould's Inlet (St. Simons 
Island) 1.6 km (1.0 mi). It includes land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit GA-15: Jekyll Island. 49 ha (121 ac) in Glynn County. The 
majority of the unit is within State lands on Jekyll Island. This unit 
includes the southern region of Jekyll Island beginning at the mouth of 
Beach Creek, running towards the tip of Jekyll Island and includes the 
shoreline running north along the Atlantic Ocean shoreline 1.9 km (1.20 
mi) from the southern tip of Jekyll Island. It includes land from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit GA-16: Cumberland Island. 1454 ha (3591 ac) in Camden County. 
The majority of the unit is along Cumberland Island Wilderness Area and 
Cumberland Island National Seashore. This unit includes the majority of 
the eastern Atlantic Ocean shoreline of Cumberland Island. It begins 
.50 km (.31 mi) north of the inlet at Long Point, continues south along 
the Atlantic Ocean shoreline stopping 1.8 km (1.1 mi) west of the 
southern tip of Cumberland Island National Seashore. It includes land 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur.

Florida (Maps Were Digitized Using 1994-95 DOQQs)

    Unit FL-1: Big Lagoon. 8 ha (19 ac) in Escambia County. The 
majority of the unit is within Big Lagoon State Recreation Area. This 
unit includes the peninsula and emerging sand and mudflats between 0.33 
km (0.21 mi) west of the lookout tower along the shoreline and 0.24 km 
(0.15 mi) east of the lookout tower along the shoreline. Land along the 
shoreline from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. All emerging sandbars to MLLW are included.
    Unit FL-2: Big Sabine. 182 ha (450 ac) in Escambia County. The 
majority of the unit is owned by the University of West Florida. This 
unit includes areas adjacent to Santa Rosa Sound of Big Sabine Point 
and adjacent embayment between 8.0 km (5.0 mi) and 11.6 (7.2 mi) east 
of the Bob Sike's Bridge. It begins 0.10 km (.06 mi) north of SR 399 to 
MLLW on the Santa Rosa Sound.
    Unit FL-3: Navarre Beach. 48 ha (118 ac) in Escambia and Santa Rosa 
Counties. The majority of the unit is owned by Eglin Air Force Base and 
Santa Rosa Island Authority. This unit includes lands on Santa Rosa 
Island Sound side, between 0.09 and 0.76 mi

[[Page 36071]]

east of the eastern end of SR 399 to MLLW on Santa Rosa Sound side.
    Unit FL-4: Marifarms in Bay County. Excluded. The proposed rule 
included this unit, but it was deleted for lack of evidence of regular 
use by piping plovers.
    Unit FL-5: Shell/Crooked Islands. 1789 ha (4419 ac) in Bay 
County.The majority of the unit is within Tyndall Air Force Base and 
St. Andrews State Recreation Area. This unit includes all of Shell 
Island, Crooked Island West, and Crooked Island East from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur.
    Unit FL-6: Upper St. Joe Peninsula. 182 ha (449 ac) in Gulf 
County.The majority of the unit is within St. Joseph State Park. This 
unit includes the northern portion of the peninsula from the tip to 8.0 
km (5.0 mi) south along the Gulf of Mexico from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit FL-7: Cape San Blas. 158 ha (390 ac) in Gulf County.The entire 
unit is within Eglin Air Force Base. This unit includes the area known 
as the Cape between the eastern boundary of Eglin and mile marker 2.1, 
including the peninsula and all emerging sandbars. It includes land 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur.
    Unit FL-8: St. Vincent Island. 146 ha (361 ac) in Franklin 
County.The majority of the unit is within St. Vincent National Wildlife 
Refuge. This unit includes the western tip of St. Vincent Island that 
is adjacent to Indian Pass (0.80 km (0.50 mi) east of tip along Indian 
Pass, and 1.9 km (1.2 mi) from tip southeast along Gulf of Mexico). The 
unit also includes St. Vincent Point from the inlet at Sheepshead Bayou 
east 1.6 km (1.0 mi) to include emerging oysters shoals and sand bars 
and extends south 0.21 km (0.13 mi) of St. Vincent Point. The unit 
includes the southeastern tip of St. Vincent Island extending north 1.4 
km (0.90 mi) and south and west 2.1 km (1.3 mi). The western tip of 
Little St. George Island 0.80 km (0.50 mi) from West Pass is included 
(state owned lands). All sections of this unit include land from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit FL-9: East St. George Island. 1433 ha (3540 ac) in Franklin 
County. The majority of the unit is within St. George State Park. This 
unit begins 5.3 km (3.3 mi) east of the bridge and extends to East 
Pass. Shell Point, Rattlesnake Cove, Goose Island, East Cove, Gap 
Point, and Marsh Island are included. This unit includes land from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur on the Gulf 
of Mexico, East Pass and St. George Sound.
    Unit FL-10: Yent Bayou. 153 ha (378 ac) in Franklin County. The 
majority of the unit is State owned. This unit is adjacent to the area 
known as Royal Bluff. It includes the St. George Sound shoreline 
between 5.9 km (3.7 mi) and 9.5 km (5.9mi) east of SR 65. It includes 
from MLLW to where densely vegetated habitat or developed structures 
such as SR 65, not used by the piping plover, begin and where the 
constituent elements no longer occur.
    Unit FL-11: Carabelle Beach. 56 ha (139 ac) in Franklin County. The 
area within this unit is privately owned. This unit is the peninsula 
created by Boggy Jordan Bayou. It includes St. George Sound shoreline 
(south of US 98) 1.6 km (1.0 mi) southwest along US 98 from the 
Carrabelle River Bridge and extends 1.9 km (1.2 mi) east along the St. 
George Sound shoreline. It includes from MLLW to where densely 
vegetated habitat or developed structures such as US 98, not used by 
the piping plover, begin and where the constituent elements no longer 
occur.
    Unit FL-12: Lanark Reef. 260 ha (643 ac) in Franklin County. The 
entire unit is State owned. This unit includes the entire island and 
emerging sandbars to MLLW.
    Unit FL-13: Phipps Preserve. 42 ha (104 ac) in Franklin County. 
This unit includes all of Phipps Preserve (owned by The Nature 
Conservancy) and any emerging sandbars from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit FL-14: Hagens Cove. 486 ha (1200 ac) in Taylor County. The 
majority of the unit is within Big Bend Wildlife Management Area. This 
unit includes all of Hagens Cove and extends from MLLW on north side of 
Sponge Point to MLLW on south side of Piney Point. The eastern boundary 
of this unit ends (0.20 mi) west of SR 361. It includes from MLLW to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur.
    Unit FL-15: Anclote Key and North Anclote Bar. 146 ha (360 ac) in 
Pasco and Pinellas Counties. The majority of the unit is within Anclote 
Key State Preserve. This unit includes all of North Anclote Bar to the 
MLLW and the north, south and western sides of Anclote Key from MLLW to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur.
    Unit FL-16: Three Rooker Bar Island. 76 ha (188 ac) in Pinellas 
County. The majority of the unit is within Pinellas County Aquatic 
Preserve. This unit includes all the islands and emerging sandbars of 
this complex to MLLW.
    Unit FL-17: North Honeymoon Island. 45 ha (112 ac) in Pinellas 
County. The majority of the unit is within Honeymoon Island State 
Recreation Area. This unit includes from Pelican Cove north to the far 
northern tip of Honeymoon Island. It includes the western shoreline 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur or 
the MLLW on the eastern shoreline.
    Unit FL-18: South Honeymoon Island. 28 ha (70 ac) in Pinellas 
County.The majority of the unit is private land. This unit includes the 
southern end (southern-most 0.32 km (0.20 mi) on western side) of 
Honeymoon Island and encompasses the far southeastern tip and includes 
any emerging islands or sandbars to Hurricane Pass. It includes from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit FL-19: Caladesi Island. 120 ha (296 ac) in Pinellas County.The 
majority of the unit is within Caladesi Island State Park. This unit 
extends from Hurricane Pass to Dunedin Pass on the Gulf of Mexico side. 
It includes from MLLW to where densely vegetated habitat, not used by 
the piping plover, begins and where the constituent elements no longer 
occur.
    Unit FL-20: Shell Key and Mullet Key. 190 ha (470 ac) in Pinellas 
County. The majority of the unit is within Fort Desoto Park. This unit 
includes the Shell Key island complex. It also includes the northwest 
portion of Mullet Key including the western shorelines from Bunces Pass 
extending south, stopping 1.4 km (.86 mi) north of Ft. Desoto County 
Park pier. It includes from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.
    Unit FL-21: Egmont Key. 153 ha (377 ac) Hillsborough County. The 
majority of the unit is within Egmont Key

[[Page 36072]]

National Wildlife Refuge. This unit includes the entire island to MLLW.
    Unit FL-22: Cayo Costa. 175 ha (432 ac) in Lee County. The majority 
of the unit, including its northern and southern boundaries, is within 
Cayo Costa State Park, and nearly all of the remaining area is in the 
Cayo Costa Florida Conservation and Recreation Lands (CARL) acquisition 
project. This unit begins at the northern limit of sandy beaches at the 
northern end of the island, extends through Murdock Point, which at 
present has a sandbar and lagoon system, and ends at the former 
entrance to Murdock Bayou. It includes land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
    Unit FL-23: North Captiva Island. 36 ha (88 ac) in Lee County.The 
unit is within the Cayo Costa CARL land purchase project. This unit 
includes the western shoreline extending from 0.80 km (0.50 mi) south 
of Captiva Pass to approximately Foster Bay. It includes land from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
    Unit FL-24: Captiva Island and Sanibel Island in Lee County. 
Excluded. The proposed rule included this unit, but it was deleted for 
lack of evidence of regular use by piping plovers.
    Unit FL-25: Bunche Beach. 187 ha (461 ac) in Lee County. This unit 
is mostly within a CARL Estero Bay acquisition project. Bunche Beach 
(also spelled Bunch) lies along San Carlos Bay, on the mainland between 
Sanibel Island and Estero Island (Fort Myers Beach), extending east 
from the Sanibel Causeway past the end of John Morris Road to a canal 
serving a residential subdivision. The unit also includes the western 
tip of Estero Island (Bodwitch Point, also spelled Bowditch Point), 
including Bowditch Regional Park, operated by Lee County and, on the 
southwest side of the island facing the Gulf, the beach south nearly to 
the northwesterly intersection of Estero Boulevard and Carlos Circle. 
It includes land from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur or, along the developed 
portion of Estero Island.
    Unit FL-26: Estero Island. 86 ha (211 ac) in Lee County. The 
majority of the unit is privately owned. The unit consists of 
approximately the southern third of the island's Gulf-facing shoreline 
starting near Avenida Pescadora to near Redfish Road. The unit excludes 
south-facing shoreline at the south end of the island that faces Big 
Carlos Pass rather than the Gulf. It includes land from MLLW to where 
densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
    Unit FL-27: Marco Island. 245 ha (606 ac) in Collier County. Most 
of the unit is at the Tigertail Beach County Park. The unit's northern 
border is on the north side of Big Marco Pass, including Coconut Island 
and all emerging sand bars. On the south side of Big Marco Pass, the 
boundary starts at the north boundary of Tigertail Beach County Park 
and extends to just south of the fourth condominium tower south of the 
County Park. The placement of the southern boundary assures that the 
unit includes all of Sand Dollar Island, the changeable sandbar off 
Tigertail Beach. The western boundary includes all the sand bars in Big 
Marco Pass but excludes Hideaway Beach. It includes land from MLLW to 
where densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
    Unit FL-28: Marquesas Keys. 2,937 ha (7,256 ac) in Monroe County. 
The unit comprises the roughly circular atoll that encloses Mooney 
Harbor, including Gull Keys and Mooney Harbor Key. The entire unit is 
within Key West National Wildlife Refuge. It includes land from MLLW to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur.
    Unit FL-29: Boca Grande/Woman/Ballast Keys. 56 ha (138 ac) in 
Monroe County. These Keys are east of the Marquesas Keys and west of 
Key West. Boca Grande and Woman Keys are within Key West National 
Wildlife Refuge. Ballast Key is privately owned. This unit consists 
only of sandy beaches and flats between the MLLW and to where densely 
vegetated habitat or developed structures, not used by the piping 
plover, begin and where the constituent elements no longer occur.
    Unit FL-30: Bahia Honda/Ohio Keys. 372 ha (918 ac) in Monroe 
County. This unit comprises Bahia Honda Key (including a small island 
off its southwest shore), which is almost entirely owned by Bahia Honda 
State Park, plus Ohio Key, which is privately owned. It includes land 
from MLLW to where densely vegetated habitat (including grass or lawns) 
or developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.
    Unit FL-31: Lower Matecumbe Key. 19 ha (48 ac) in Monroe County. 
Part of the unit is at Anne's Beach park, an Islamorada village park. 
The remaining parts are at Sunset Drive (Lower Matecumbe Beach) and at 
Costa Bravo Drive (Port Antiqua Homeowners Beach) on the Florida Bay 
side of the island. It includes land from MLLW to where densely 
vegetated habitat (including grass or lawns) or developed structures, 
not used by the piping plover, begin and where the constituent elements 
no longer occur.
    Unit FL-32: Sandy Key/Carl Ross Key. 67 ha (165 ac) in Monroe 
County. This unit consists of two adjoining islands in Florida Bay, 
roughly south of Flamingo in Everglades National Park. The entire area 
is owned and managed by the National Park Service. It includes land 
from MLLW to where densely vegetated habitat (including grass or lawns) 
or developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.
    Unit FL-33: St. Lucie Inlet. 114 ha (282 ac) in Martin County. The 
unit includes a small area south of the jetty on the north shore of St. 
Lucie Inlet, from the jetty west 0.42 km (0.26 mi). While the two sides 
of the inlet are privately owned, the great majority of the unit is on 
public land in the Saint Lucie Inlet State Preserve, administered by 
Jonathan Dickinson State Park. It begins on the sandy shoreline south 
of Saint Lucie Inlet and extends along the Atlantic Ocean shoreline 2.6 
km (1.6 mi). It includes land from MLLW to where densely vegetated 
habitat (including grass or lawns) or developed structures, not used by 
the piping plover, begin and where the constituent elements no longer 
occur. The unit does not include sandbars within the inlet.
    Unit FL-34: Ponce de Leon Inlet. 68 ha (168 ac) in Volusia County. 
The majority of the unit is within Smyrna Dunes Park and Lighthouse 
Point Park. This unit includes shoreline extending from the jetty north 
of Ponce de Leon Inlet west to the Halifax River and Inlet junction. It 
includes shoreline south of Ponce de Leon Inlet from the inlet and 
Halifax River junction, extending east and south along the Atlantic 
Ocean shoreline 1.2 km (.70 mi). It includes land from MLLW to where 
densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
    Unit FL-35: Nassau Sound-Huguenot. 950 ha (2347 ac) in Duval 
County. The majority of the unit is within Big Talbot Island State 
Park, Little Talbot Island

[[Page 36073]]

State Park, and the Timucuan Ecological and Historical Preserve. This 
unit includes all emergent shoals and shoreline east of Nassau River 
bridge and extends to the inlet of the St. John's River. Amelia Island 
and the northern 2.7 km (1.7 mi) shoreline along Talbot Island are not 
included. It includes land from MLLW to where densely vegetated habitat 
(including grass or lawns) or developed structures, not used by the 
piping plover, begin and where the constituent elements no longer 
occur.
    Unit FL-36: Tiger Islands. 53 ha (130 ac) in Nassau County. This 
unit is privately owned. This unit extends from the mouth of Tiger 
Creek and runs north along Tiger Island 0.8 km (0.5 mi) and south along 
Little Tiger Island 1.4 km (0.9 mi). It includes land from MLLW to 
where densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur. Emerging sandbars to MLLW are 
also included.

Alabama (Maps Were Digitized Using 1992 DOQQs)

    Unit AL-1: Isle Aux Herbes. 227 ha (561 ac) in Mobile County. This 
unit includes the entire Isle Aux Herbes island where primary 
constituent elements occur to MLLW and is State-owned.
    Unit AL-2: Dauphin, Little Dauphin, and Pelican Islands. 880 ha 
(2,174 ac) in Mobile County. This unit includes all of Dauphin Island 
where primary constituent elements occur from St. Stephens Street 
approximately 17.6 km (10.9 mi) west to the western tip of the island 
to MLLW and all of Little Dauphin and Pelican Islands to MLLW. The area 
is mostly privately owned but includes State and Federal lands.
    Unit AL-3: Fort Morgan. 67 ha (166 ac) in Baldwin County. This area 
includes Mobile Bay and Gulf of Mexico shorelines within Bon Secour 
National Wildlife Refuge, Fort Morgan Unit. This unit extends from the 
west side of the pier on the northwest point of the peninsula, 
following the shoreline approximately 2.8 km (1.74 mi) southwest around 
the tip of the peninsula, then east to the terminus of the beach access 
road and is bounded on the seaward side by MLLW and on the landward 
side to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur. The area is 
State-owned but is leased by the Federal Government.

Mississippi (Maps Were Digitized Using 1992 and 1997 DOQQs)

    Unit MS-1: Lakeshore through Bay St. Louis. 41 ha (101 ac) in 
Hancock County. This unit extends from the north side of Bryan Bayou 
outlet and includes the shore of the Mississippi Sound following the 
shoreline northeast approximately 15.0 km (9.3 mi) and ending at the 
southeast side of the Bay Waveland Yacht Club. The landward boundary of 
this unit follows the Gulf side of South and North Beach Boulevard and 
the seaward boundary is MLLW. The shoreline of this unit is privately 
owned.
    Unit MS-2: Henderson Point. 34 ha (84 ac) in Harrison County. This 
unit extends from 0.2 km (0.12 mi) west of the intersection of 3rd 
Avenue and Front Street and includes the shore of the Mississippi Sound 
following the shoreline northeast approximately 4.4 km (2.7 mi) to the 
west side of Pass Christian Harbor. The landward boundary of this unit 
follows the Gulf side of U.S. Highway 90 and the seaward boundary is 
MLLW. The shoreline of this unit is privately owned.
    Unit MS-3: Pass Christian. 77 ha (190 ac) in Harrison County. This 
unit extends from the east side of Pass Christian Harbor and includes 
the shore of the Mississippi Sound following the shoreline northeast 
approximately 10.5 km (6.5 mi) to the west side of Long Beach Pier and 
Harbor. The landward boundary of this unit follows the Gulf side of 
U.S. Highway 90 and the seaward boundary is MLLW and the seaward 
boundary is MLLW. The shoreline of this unit is privately owned.
    Unit MS-4: Long Beach. 38 ha (94 ac) in Harrison County. This unit 
extends from the east side of Long Beach Pier and Harbor and includes 
the shore of the Mississippi Sound following the shoreline northeast 
approximately 4.4 km (2.7 mi) to the west side of Gulfport Harbor. The 
landward boundary of this unit follows the Gulf side of U.S. Highway 90 
and the seaward boundary is MLLW. The shoreline of this unit is 
privately owned.
    Unit MS-5: Gulfport. 39 ha (96 ac) in Harrison County. This unit 
extends from the east side of Gulfport Harbor and includes the shore of 
the Mississippi Sound following the shoreline northeast approximately 
4.8 km (3.0 mi) to the west side of the groin at the southern terminus 
of Courthouse Road, Mississippi City, MS. The landward boundary of this 
unit follows the Gulf side of U.S. Highway 90 and the seaward boundary 
is MLLW. The shoreline of this unit is privately owned.
    Unit MS-6: Mississippi City. 62 ha (153 ac) in Harrison County. 
This unit extends from the east side of the groin at the southern 
terminus of Courthouse Road, Mississippi City, MS, and includes the 
shore of the Mississippi Sound following the shoreline northeast 
approximately 7.9 km (4.9 mi) to the west side of President Casino. The 
landward boundary of this unit follows the Gulf side of U.S. Highway 90 
and the seaward boundary is MLLW. The shoreline of this unit is 
privately owned.
    Unit MS-7: Beauvoir in Harrison County. Excluded. The proposed rule 
included this unit, but it was deleted for lack of evidence of regular 
use by piping plovers.
    Unit MS-8: Biloxi West in Harrison County. Excluded. The proposed 
rule included this unit, but it was deleted for lack of evidence of 
regular use by piping plovers.
    Unit MS-9: Biloxi East in Harrison County. Excluded. The proposed 
rule included this unit, but it was deleted for lack of evidence of 
regular use by piping plovers.
    Unit MS-10: Ocean Springs West. 11 ha (27 ac) in Jackson County. 
This unit extends from U.S. 90 and includes the shore of Biloxi Bay 
following the shoreline southeast approximately 1.9 km (1.2 mi) to the 
Ocean Springs Harbor inlet. The landward boundary of this unit follows 
the Bay side of Front Beach Drive and the seaward boundary is MLLW. The 
shoreline of this unit is privately owned.
    Unit MS-11: Ocean Springs East. 7 ha (17 ac) in Jackson County. 
This unit extends from the east side of Weeks Bayou and includes the 
shore of Biloxi Bay following the shoreline southeast approximately 1.8 
km (1.1 mi) to Halstead Bayou. The landward boundary of this unit 
follows the Bay side of East Beach Drive and the seaward boundary is 
MLLW. The shoreline of this unit is privately owned.
    Unit MS-12: Deer Island. 194 ha (479 ac) in Harrison County. This 
unit includes all of Deer Island, where primary constituent elements 
occur to the MLWW . Deer Island is privately owned.
    Unit MS-13: Round Island. 27 ha (67 ac) in Jackson County. This 
unit includes all of Round Island to the MLWW and is privately owned
    Unit MS-14: Mississippi Barrier Islands. 3,168 ha (7,828 ac) in 
Harrison and Jackson Counties. This unit includes all of Cat, East and 
West Ship, Horn, Spoil, and Petit Bois Islands

[[Page 36074]]

where primary constituent elements occur to MLLW. Cat Island is 
privately owned, and the remaining islands are part of the Gulf Islands 
National Seashore.
    Unit MS-15: North and South Rigolets. 159 ha (393 ac) in Jackson 
County, MS, and 12 ha (30 ac) in Mobile County, AL. This unit extends 
from the southwestern tip of South Rigolets Island and includes the 
shore of Point Aux Chenes Bay, the Mississippi Sound, and Grand Bay 
following the shoreline east around the western tip, then north to the 
south side of South Rigolets Bayou; then from the north side of South 
Rigolets Bayou (the southeastern corner of North Rigolets Island) north 
to the northeastern most point of North Rigolets Island. This shoreline 
is bounded on the seaward side by MLLW and on the landward side to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur. Approximately 4.4 
km (2.7 mi) are in Mississippi and 2.9 km (1.8 mi) are in Alabama. 
Almost half the Mississippi shoreline length is in the Grand Bay 
National Wildlife Refuge.

Louisiana (Maps Were Digitized Using 1998 DOQQs)

    Unit LA-1: Texas/Louisiana border to Cheniere au Tigre. 2,650 ha 
(6,548 ac) in Cameron and Vermilion Parishes. This unit extends from 
the east side of Sabine Pass (Texas/Louisiana border) and includes the 
shore of the Gulf of Mexico from the MLLW following the shoreline east 
25.7 km (16.0 mi) to the west end of Constance Beach [approximately 2 
km (1.2 mi) east of the intersection of Parish Road 528 and the beach]; 
it extends from the east end of the town of Holly Beach [0.25 km (0.16 
mi) east of the intersection of Baritarick Boulevard and the beach] 
following the shoreline approximately 97 km (60.3 mi) east to the 
eastern boundary line of Rockefeller Wildlife Refuge [3.4 km (2.1 mi) 
east of Rollover Bayou]; and it extends from the east side of 
Freshwater Bayou Canal following the shoreline east for approximately 
15 km (9.3 mi) to 1.3 km (0.81 mi) east of where the boundary of Paul 
J. Rainey Wildlife Sanctuary (National Audubon Society) meets the 
shoreline. All three sections of this unit include the land from the 
seaward boundary of MLLW to where densely vegetated habitat, not used 
by the piping plover, begins and where the constituent elements no 
longer occur. The shoreline in this unit is both state and privately 
owned.
    Unit LA-2: Atchafalaya River Delta. 921 ha (2,276 ac) in St. Mary 
Parish, LA. This unit is located in the eastern portion of the State-
owned Atchafalaya Delta Wildlife Management Area (WMA) and includes all 
exposed land and islands where primary constituent elements occur east 
and southeast of the main navigation channel of the Atchafalaya River 
to the MLLW. The islands located south and southeast of the deltaic 
splay, Donna, T-Pat, and Skimmer Islands and the un-named bird island, 
are also included in this unit. This unit includes the entire islands 
where primary constituent elements occur to the MLLW.
    Unit LA-3: Point Au Fer Island. 195 ha (482 ac) in Terrebonne 
Parish. This unit includes the entire small island at the northwest tip 
of Point Au Fer Island to MLLW, then extends from the northwest tip of 
Point Au Fer Island following the shoreline southeast approximately 7.7 
km (4.8 mi) to the point where the un-named oil and gas canal extending 
southeast from Locust Bayou meets the shoreline [0.8 km (0.5 mi) 
southeast from Locust Bayou]. This shoreline is bounded on the seaward 
side by MLLW and on the landward side to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. This entire unit is privately 
owned.
    Unit LA-4: Isles Dernieres. 795 ha (1,964 ac) in Terrebonne Parish. 
This unit includes the State-owned Isles Dernieres chain, including 
Raccoon, Whiskey, Trinity and East Islands. This unit includes the 
entire islands where primary constituent elements occur to the MLLW.
    Unit LA-5: Timbalier Island to East Grand Terre Island. 2,321 ha 
(5,735 ac) in Terrebonne, Lafourche, Jefferson, and Plaquemines 
Parishes. This unit includes: all of Timbalier Island where primary 
constituent elements occur to the MLLW, all of Belle Pass West [the 
``peninsula'' extending north/northwest approximately 4.8 km (3.0 mi) 
from the west side of Belle Pass] where primary constituent elements 
occur to MLLW; the Gulf shoreline extending approximately 11 km (6.8 
mi) east from the east side of Belle Pass bounded on the seaward side 
by MLLW and on the landward side to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur; all of Elmers Island peninsula where primary 
constituent elements occur to MLLW and the Gulf shoreline from Elmers 
Island to approximately 0.9 km (0.56 mi) west of Bayou Thunder Von 
Tranc bounded on the seaward side by MLLW and on the landward side to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur; the Gulf shoreline 
of Grand Isle from the Gulf side of the hurricane protection levee to 
MLLW; and all of East Grand Terre Island where primary constituent 
elements occur to the MLLW.
    Unit LA-6: Mississippi River Delta. 105 ha (259 ac) in Plaquemines 
Parish, LA. This unit is part of the State-owned Pass a Loutre Wildlife 
Management Area and includes un-named sand (spoil) islands off South 
Pass of the Mississippi River near Port Eads. The entire islands to 
MLLW are included in this unit.
    Unit LA-7: Breton Islands and Chandeleur Island Chain. 3,116 ha 
(7,700 ac) in Plaquemines and St. Bernard Parishes, LA. This unit 
includes Breton, Grand Gosier, and Curlew Islands and the Chandeleur 
Island chain. Those islands are part of the Breton National Wildlife 
Refuge or are state owned. The entire islands where primary constituent 
elements occur to MLLW are included in this unit.

Texas (Maps Were Digitized Using 1995 and 1996 DOQQs and National 
Oceanic and Atmospheric Administration's (NOAA) Medium Resolution 
Digital Vector Shoreline)

    Unit TX-1: South Bay and Boca Chica. 2,920 ha (7,217 ac) in Cameron 
County. The boundaries of the unit are: starting at the Loma Ochoa, 
following the Brownsville Ship Channel to the northeast out into the 
Gulf of Mexico to MLLW, then south along a line describing MLLW to the 
mouth of the Rio Grande, proceeding up the Rio Grande to Loma de Las 
Vacas, then from that point along a straight line north to Loma Ochoa. 
The unit does not include densely vegetated habitat within those 
boundaries. It includes wind tidal flats that are infrequently 
inundated by seasonal winds, and includes the tidal flats area known as 
South Bay. Beaches within the unit reach from the mouth of the Rio 
Grande northward to Brazos Santiago Pass, south of South Padre Island. 
The southern and western boundaries follow the change in habitat from 
wind tidal flat, preferred by the piping plover, to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur and include areas used 
for roosting by the piping plover. Portions of this unit are owned and 
managed by the Lower Rio Grande Valley National Wildlife

[[Page 36075]]

Refuge, the South Bay Coastal Preserve, Boca Chica State Park, and 
private citizens.
    Unit TX-2: Queen Isabella Causeway. 2 ha (6 ac) in Cameron County. 
The area extends along the Laguna Madre west of the city of South Padre 
Island. The southern boundary is the Queen Isabella State Fishing Pier, 
and the northern boundary is at the shoreline due west of the end of 
Sunny Isles Street. The Queen Isabella causeway bisects this shore but 
is not included within critical habitat. The eastern boundary is the 
where developed areas and/or dense vegetation begins, and the western 
boundary is MLLW. This unit contains lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
    Unit TX-3: Padre Island. 10,924 ha (26,983 ac) in Cameron, Willacy, 
Kenedy, and Kleberg Counties. This unit consists of four subunits:
    (1) The southern boundary of this subunit is at Andy Bowie County 
Park in South Padre Island, and the northern boundary is the south 
boundary of PAIS. The eastern boundary is MLLW in the Gulf of Mexico, 
and the western boundary is MLLW in the Laguna Madre. Areas of dense 
vegetation are not included in critical habitat. This subunit includes 
lands known as wind tidal flats that are infrequently inundated by 
seasonal winds.
    (2) The boundaries of this subunit extend from Rincon de la Soledad 
to the southeast point of Mesquite Rincon, continue from that point 
west to the Laguna Madre shoreline at its intersection with the King 
Ranch boundary, and from that point to Rincon de la Soledad. This 
subunit includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
    (3) This subunit is within the Laguna Madre and extends from the 
western boundary of PAIS to the Gulf Intercoastal Waterway. Its 
northern boundary is a line extending westward from the northwest 
corner of PAIS, and its southern boundary is a line extending westward 
from the southern boundary of PAIS. This subunit includes lands known 
as wind tidal flats that are infrequently inundated by seasonal winds.
    (4) This subunit extends along the gulf shore of Padre Island from 
the northern boundary of PIAS at the shore, north to the Nueces-Kleberg 
county line. The inland boundary is where dense vegetation begins, and 
the seaward boundary is MLLW. This subunit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Portions of this unit are owned and managed by TGLO, and private 
citizens with a significant portion being owned and managed by The 
Nature Conservancy on South Padre Island.
    Unit TX-4: Lower Laguna Madre Mainland. 4,980 ha (12,307 ac) in 
Cameron and Willacy Counties. The southern boundary is an east-west 
line at the northern tip of Barclay Island, and the southern boundary 
is an east-west line 0.9 km (0.5 mi) south of the boundary of the City 
of Port Mansfield; the western boundary is the line where dense 
vegetation begins, and the eastern boundary is the Gulf Intercoastal 
Waterway. The unit includes bayside flats that are exposed during low 
tide regimes and wind tidal flats that are infrequently inundated by 
seasonal winds. Portions of this unit are within the Laguna Atascosa 
National Wildlife Refuge, are TGLO-owned, or are privately owned. 
Beaches and interior wetlands may or may not be used each year because 
of varying water levels, storm events, or changes in beach 
characteristics and tidal regime. Water stages vary in this area with 
meteorological conditions. The upland areas extend to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur and include upland areas used for 
roosting by the piping plover.
    Unit TX-5: Upper Laguna Madre. 436 ha (1,076 ac) in Kleberg County. 
The southern boundary is the northern boundary of PAIS, and the 
northern boundary is the Kleberg/Nueces County line. The eastern 
boundary is the line where dense vegetation begins, and the western 
boundary is MLLW. This unit includes a series of small flats along the 
bayside of Padre Island in the Upper Laguna Madre. It includes wind 
tidal flats and sparsely-vegtated upland areas used for roosting by the 
piping plover. These boundaries receive heavy use by large numbers of 
shorebirds, including piping plovers. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur, and include upland 
areas used for roosting by the piping plover.
    Unit TX-6: Mollie Beattie Coastal Habitat. 241 ha (596 ac) in 
Nueces County. This unit will be described as two subunits:
    (1) Subunit is bounded on the north by Beach Access Road 3, on the 
east by the inland boundary of critical habitat Unit TX-7, on the south 
by Zahn road, and on the west by Zahn Road.
    (2) The subunit is bounded on the north by Corpus Christi Pass, on 
the east by US 361, on the south by the north side of Packery Channel, 
and on the west by the Gulf Intercoastal Watersay.
    Some of the uplands are privately owned and the remaining are owned 
and managed by the TGLO. This unit includes two hurricane washover 
passes known as Newport and Corpus Christi Passes, and wind tidal flats 
that are infrequently inundated by seasonal winds. The upland areas 
extend to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur and 
include upland areas used for roosting by the piping plover.
    Unit TX-7: Newport Pass/Corpus Christi Pass Beach. 42 ha (104 ac) 
in Nueces County. This unit is along a stretch of Gulf beach 8.5 km 
(5.3 mi) long. It is bounded on the north by Fish Pass, on the east by 
MLLW, on the south by St. Bartholomew Avenue, and on the west by a line 
marking the beginning of dense vegetation. Portions of the unit are 
managed by the Texas Parks and Wildlife Department as part of Mustang 
Island State Park. This unit includes lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
    Unit TX-8: Mustang Island Beach. 97 ha (239 ac) in Nueces County. 
This is a stretch of Gulf beach extending from Fish Pass to the Horace 
Caldwell Pier on Holiday Beach within the City of Port Aransas, TX. The 
landward boundary is beginning of dense vegetation, and the gulf-ward 
boundary is MLLW. This unit includes lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
    Unit TX-9: Fish Pass Lagoons. 130 ha (323 ac) in Nueces County. 
This unit encompasses flats facing Corpus Christi Bay that extend 1.0 
km (0.6 mi) on either side of Fish Pass. The inland boundary is the 
line indicating beginning of dense vegetation, and the bayside boundary 
is MLLW. It includes interior lagoons and wind tidal flats that are 
infrequently inundated by seasonal winds. This unit includes upland 
areas used for roosting by the piping plover.
    Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats. 87 
ha (216 ac) in Nueces County. This unit encompasses Shamrock Island, an 
unnamed small sand flat to the north of Wilson's Cut, and a lagoon 
complex that extends 3.5 km (2.2 mi) to the southwest of Wilson's Cut. 
Critical habitat includes land to the line marking the beginning of 
dense vegetation down to MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Unit TX-11: Blind Oso. 2 ha (5 ac) in Nueces County. This unit is 
the flats of the Blind Oso, part of Oso Bay, from

[[Page 36076]]

Hans and Pat Suter Wildlife Refuge (owned and managed by the City of 
Corpus Christi) northeast to Corpus Christi Bay and then southeast 
along the edge of Texas A&M University--Corpus Christi. The landward 
boundaries extend to where densely vegetated habitat, not used by the 
piping plover, begins, and extends out from the landward boundaries to 
MLLW. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-12: Adjacent to Naval Air Station-Corpus Christi. 2 ha (6 
ac) in Nueces County. This unit is along the shore of Oso Bay on flats 
bordered by Naval Air Station-Corpus Christi and Texas Spur 3 to a 
point 2.5 km (1.5 mi) south of the bridge between Ward Island and the 
Naval Air Station. The landward boundary is the line where dense 
vegetation begins, and the boundary in the Bay is MLLW. This unit 
includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
    Unit TX-13: Sunset Lake. 176 ha (435 ac) in San Patricio County. 
This unit is triangle shaped, with State Highway 181 as the northwest 
boundary, and the limits of the City of Portland as the northeast 
boundary. The shore on Corpus Christi Bay is the third side of the 
triangle, with the actual boundary being MLLW off this shore. This unit 
is a large basin with a series of tidal ponds, sand spits and wind 
tidal flats. This unit is owned and managed by the City of Portland 
within a system of city parks. Some of the described area falls within 
the jurisdiction of the TGLO. It includes two city park units referred 
to as Indian Point and Sunset Lake. Much of the unit is a recent 
acquisition by the city, and management considerations for the park 
include the area's importance as a site for wintering and resident 
shorebirds. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-14: East Flats. 194 ha (481 ac) in Nueces County. This unit 
is bordered on the north by dredge placement areas bordering the Corpus 
Christi Ship Channel, on the west by MLLW in Corpus Christi Bay, on the 
east by the limits of the City of Port Aransas, and on the south by an 
east-west line at the sourthern-most point of Pelone Island. It is also 
bisected by a navigation channel, which is not included in the critical 
habitat. A portion of this unit at the west end falls within State-
owned (TGLO) intertidal lands. The remainder of the unit is privately 
owned. The upland areas extend to where densely vegetated habitat, not 
used by the piping plover, begins and where the constituent elements no 
longer occur, including upland areas used for roosting by the piping 
plover. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-15: North Pass. 447 ha (1,106 ac) in Aransas County. The 
unit is bounded on north by North Pass, on the northwest by the line 
indicating MLLW, on the southwest by the northeast side of Lydia Ann 
Island, on the south by a line running due east from the northeast side 
of Lydia Ann Island, and on the southeast by the landward boundary of 
Unit. This unit is a remnant of a hurricane washover on the privately 
owned San Jose Island. The upland areas extend to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur, including upland areas used for 
roosting by the piping plover. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Unit TX-16: San Jose Beach. 187 ha (463 ac) in Aransas County. This 
unit occupies a 33 km (20 mi) stretch of beach from the North Jetty of 
Aransas Pass at the south, to the confluence of Vinson Slough and Cedar 
Bayou at the north end of San Jose Island. The inland boundary is the 
line indicating the beginning of densely vegetated habitat, and the 
gulf-ward boundary is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Unit TX-17: Allyn's Bight. 5 ha (14 ac) in Aransas County. This 
unit includes shoreline of San Jose Island on Aransas Bay from Allyn's 
Bight to Blind Pass, the channel between San Jose Island and Mud 
Island. The inland boundary is where the line of dense vegetation 
begins, and the bay-ward boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
    Unit TX-18: Cedar Bayou/Vinson Slough. 3,051 ha (7,539 ac) in 
Aransas County. Beginning at the confluence of Vinson Slough and Cedar 
Bayou, this unit's boundary follows the shore of Spalding Cove to Long 
Reef, then continues along a line extending (2.5 mi) southwest of Long 
Reef to the shore of San Jose Island, then along the shore of the 
island to the landward boundary of Unit TX-16. The unit boundaries 
extend landward to the line indicating the beginning of dense 
vegetation. This unit is a remnant of a hurricane washover area, and 
includes the highly dynamic area of Cedar Bayou, the pass that 
separates San Jose Island and Matagorda Island. This area includes a 
small section of Matagorda Island National Wildlife Refuge with much of 
the remaining areas occurring on the privately owned island of San 
Jose. The upland areas extend to where densely vegetated habitat, not 
used by the piping plover, begins and where the constituent elements no 
longer occur and include upland areas used for roosting by the piping 
plover. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-19: Matagorda Island Beach. 395 ha (976 ac) in Calhoun 
County. This stretch of beach along the Gulf of Mexico on Matagorda 
Island extends a distance of 60 km (36 mi) from Cedar Bayou on the 
southwest (where it abuts TX-18), to Pass Cavallo on the northeast. The 
inland boundary is the line indicating the beginning of dense 
vegetation, and the gulf-ward boundary is MLLW. This unit includes 
lands known as wind tidal flats that are infrequently inundated by 
seasonal winds. The unit falls entirely within the boundary of the 
Matagorda Island National Wildlife Refuge.
    Unit TX-20: Ayers Point. 397 ha (982 ac) in Calhoun County. This 
unit is an unnamed lake on Matagorda Island between Shell Reef Bayou 
and Big Brundrett Lake, with San Antonio Bay to the north. The unit 
boundary extends landward from the lake to the line where dense 
vegetation begins and where the constituent elements no longer occur 
and includes upland areas used for roosting by the piping plover. This 
unit includes marsh and flats at Ayers Point on Matagorda Island 
National Wildlife Refuge. This unit includes lands known as wind tidal 
flats that are infrequently inundated by seasonal winds.
    Unit TX-21: Panther Point to Pringle Lake. 863 ha (2,133 ac) in 
Calhoun County. This unit represents a narrow band of bayside habitats 
on Matagorda Island from Panther Point to the northeast end of Pringle 
Lake. The landward boundary is the line indicating where dense 
vegetation begins, and the bayward boundary is MLLW. The unit is 
entirely within Matagorda Island National Wildlife Refuge. This unit 
includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
    Unit TX-22: Decros Point. 450 ha (1,114 ac) at the Matagorda/
Calhoun County line. This unit includes about 7.0 km (4.3 mi) of beach 
habitat around the island at the western tip of Matagorda Peninsula 
between the

[[Page 36077]]

natural opening to Matagorda Bay and the Matagorda Ship Channel. The 
upland boundary is the line where dense vegetation begins, and the 
seaward boundary is MLLW. The adjacent upland is privately owned. This 
unit includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
    Unit TX-23: West Matagorda Peninsula Beach. 311 ha (769 ac) of 
shoreline in Matagorda County. This unit extends 40 km (24 mi) along 
the Gulf of Mexico from the jetties at the Matagorda Ship Channel to 
the old Colorado River channel. The inland boundary is the line 
indicating where dense vegetation begins, and the gulfside boundary is 
MLLW. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-24: West Matagorda Bay/Western Peninsula Flats. 756 ha 
(1,868 ac) in Matagorda County. This unit extends along the bayside of 
Matagorda Peninsula from 7.5 southwest of Greens Bayou to 2.5 km (1.6 
mi) northwest of Greens Bayou. The landward boundary is the line 
indicating the beginning of dense vegetation, and the bayside boundary 
is MLLW. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-25: West Matagorda Bay/Eastern Peninsula Flats. 232 ha (575 
ac) in Matagorda County. This unit follows the bayside of Matagorda 
Peninsula from Maverick Slough southwest for 5 km (3 mi). The unit 
begins at Maverick Slough to the northeast and extends 5 km (3 mi) to 
the southwest, enclosing a series of flats along Matagorda Bay. The 
upland areas extend to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur and include upland areas used for roosting by the piping plover. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-26: Colorado River Diversion Delta. 5 ha (13 ac) in 
Matagorda County. This unit consists follows the shore of the extreme 
eastern northeast corner of West Matagorda Bay from Culver Cut to Dog 
Island Reef. The southeastern tidally emergent portion of Dog Island 
Reef is included within the unit. The landward boundary is the line 
indicating the beginning of dense vegetation, and the bayside boundary 
is MLLW. The upland areas includes upland areas used for roosting by 
the piping plover. This unit includes lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
    Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West. 295 
(728 ac) of shoreline in Matagorda County. This unit extends along Gulf 
beach on the Matagorda Peninsula from the mouth of the Colorado River 
northeast along the peninsula 23 km (14 mi) to a point on the beach 
opposite Eidelbach Flats. The landward boundary is the line indicating 
the beginning of dense vegetation, and the gulfside boundary is MLLW. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East. 129 
ha (321 ac) in Matagorda County. This unit extends along the Gulf beach 
on the northeast end of Matagorda Peninsula from a point 0.8 km (0.5mi) 
southwest of FM 457 southwest 10 km (6 mi.) to the southwest side of 
Brown Cedar Cut. This unit abuts with Unit TX-29 to the north. The 
landward boundary is the line indicating the beginning of dense 
vegetation, and the gulfside boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
    Unit TX-29: Brown Cedar Cut. 119 ha (294 ac) in Matagorda County. 
This unit extends 2 km (1.2 m.) both southwest and northeast of the 
main channel of Brown Cedar Cut along the bayside of Matagorda 
Peninsula in East Matagorda Bay, and abuts unit TX-28 to the southeast. 
The landward boundary is the line indicating the beginning of dense 
vegetation, and the bayside boundary is MLLW. The eastern boundary of 
TX-29 follows the change in habitat from mud flats preferred by the 
piping plover, to slightly vegetated dune system adjacent to TX-28. 
This unit includes upland areas used for roosting by the piping plover. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
    Unit TX-30: Northeast Corner East Matagorda Bay. 120 ha (297 ac) in 
Matagorda County. This is a unit bounded on the north by the Gulf 
Intercoastal Waterway, on the east by the northeast limit of Matagorda 
bay up the line where dense vegetation begins, on the south by the 
boundary of Unit TX-28, and on the west by MLLW. It is a system of 
flats associated with tidal channels. This unit includes upland areas 
used for roosting by the piping plover and lands known as wind tidal 
flats that are infrequently inundated by seasonal winds.
    Unit TX-31: San Bernard NWR Beach. 166 ha (410 ac) in Matagorda and 
Brazoria Counties. This is a unit composed of Gulf beach, 8.0 km (5.0 
mi), and extends from the mouth of the San Bernard River to a point 
along the beach 14.0 km (8.7 mi) to the southwest. The landward 
boundary is the line indicating the beginning of dense vegetation, and 
the gulfside boundary is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers. 108 
ha (269 ac) of shoreline in Brazoria County. This unit is a segment of 
Gulf beach between the Brazos River and the San Bernard River. This 
unit borders an area known as Wolf Island. The landward boundary is the 
line indicating the beginning of dense vegetation, and the gulfside 
boundary is MLLW. This unit includes lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
    Unit TX-33: Bryan Beach and Adjacent Beach. 157 ha (388 ac) in 
Brazoria County. The boundaries enclose a length of Gulf beach between 
the mouth of the Brazos River and FM 1495. The landward boundary is the 
line indicating the beginning of dense vegetation, and the gulfside 
boundary is MLLW. A portion of this area is owned and managed by the 
Texas Parks and Wildlife Department. This unit includes lands known as 
wind tidal flats that are infrequently inundated by seasonal winds.
    Unit TX-34: San Luis Pass. 110 ha (272 ac) near the Brazoria/
Galveston County line. This unit extends along the Gulf side of 
Galveston Island from San Luis Pass to the cite of the former town of 
Red Fish Cove (USGS 1:24,000 map, San Luis Pass, Texas; 1963, 
photorevision 1974). The landward boundary is the line indicating the 
beginning of dense vegetation, and the gulfside boundary is MLLW. 
Approximately 57 percent of the unit includes flats in the floodtide 
delta that are State-owned and managed by the TGLO. This unit includes 
lands known as wind tidal flats that are infrequently inundated by 
seasonal winds.
    Unit TX-35: Big Reef. 47 ha (117 ac) in Galveston County. This unit 
consists of beach and sand flats on the north, west, and east shore of 
Big Reef, down to MLLW. South Jetty is not included. The area is 
currently managed by the City of Galveston. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
    Unit TX-36: Bolivar Flats. 160 ha (395 ac) in Galveston County. 
This unit extends from the jetties on the southwest end of the Bolivar 
Peninsula

[[Page 36078]]

to a point on the Gulf beach 1 km (0.6 mi) north of Beacon Bayou. It 
includes 5.0 km (3 mi) of Gulf shoreline. The landward boundary is the 
line indicating the beginning of dense vegetation, and the gulfside 
boundary is MLLW. The area is leased from TGLO by Houston Audubon 
Society and managed for its important avian resources. The upland areas 
are used for roosting by the piping plover. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
    Unit TX-37: Rollover Pass. 6 ha (16 ac) in Galveston County. This 
unit consists of Rollover Bay on the bayside of Bolivar Peninsula. The 
landward boundary is the line indicating the beginning of dense 
vegetation, and the bayside boundary is MLLW. It includes flats on 
State-owned land managed by the TGLO. This unit captures the intertidal 
complex of the bay, and is bounded by the towns of Gilchrist to the 
east and the Gulf beach of the Bolivar Peninsula to the south. This 
unit includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the Act requires 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. For wintering piping plovers, we 
will conduct our destruction and adverse modification analyses over the 
entire critical habitat designation and on a unit basis, where 
appropriate. A consultation focuses on the entire critical habitat area 
designated unless the critical habitat rule identifies another basis 
for analysis, such as discrete units and/or groups of units necessary 
for different life-cycle phases, units representing distinctive habitat 
characteristics or gene pools, or units fulfilling essential geographic 
distribution requirements. In the case of the piping plover, we cannot 
always currently identify the breeding population origin of birds on 
the winter range. As we continue to collect information on banded 
birds, future additional information may allow us to analyze jeopardy 
and adverse modification on the basis of the identified population 
origin and individual units or groups of units. That is, some 
designated critical habitat units may fulfill essential geographic 
distribution requirements for the endangered Great Lakes breeding 
population of piping plover and therefore the adverse modification 
analysis may be appropriate at the unit or groups of units level. To be 
considered ``destruction or adverse modification,'' a modification of 
critical habitat must be of such magnitude that the effect appreciably 
reduces the value of the critical habitat for the survival and recovery 
of the listed species. Individuals, organizations, States, 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 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 critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. 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 such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with us. Through this consultation, we 
would advise the agencies whether the permitted actions would likely 
jeopardize the continued existence of the species or adversely modify 
critical habitat.
    When we issue a biological opinion concluding that a project 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 the Service 
believes would avoid the likelihood of jeopardizing the continued 
existence of listed species or the destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions may affect designated critical habitat.
    Activities on private or State lands requiring a permit from a 
Federal agency, such as a permit from the U.S. Army Corps of Engineers 
(COE) under section 404 of the Clean Water Act or a section 10(a)(1)(B) 
permit from the Service, or some other Federal action, including 
funding (e.g., from the Federal Highway Administration (FHA), 
Environmental Protection Agency (EPA), or Federal Emergency Management 
Agency (FEMA)), will also 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, authorized, or permitted do not require section 7 consultation.
    Critical habitat does not include existing developed sites 
consisting of buildings, marinas, paved areas, boat ramps, exposed oil 
and gas pipelines and similar structures. Since existing developed 
sites, such as those described above, do not contain the primary 
constituent elements, they are not included in the definition of 
critical habitat for the piping plover.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that alter the primary constituent elements to an 
extent that the value of critical habitat for both the survival and 
recovery of the wintering piping plover is appreciably reduced. We note 
that such activities would also likely jeopardize the continued 
existence of the species, and that any reasonable and prudent 
alternatives to remove jeopardy would be similar to those removing 
adverse modification. Thus, critical habitat designation is unlikely to 
appreciably affect the outcomes of section 7 consultations. However, we 
note that some Federal agencies may initiate consultation more

[[Page 36079]]

often than before because critical habitat has increased their 
awareness of the species.
    Federal activities that have undergone previous section 7 
consultation on the effects of the action on wintering piping plover 
habitat are listed below. The action agencies involved in these 
consultations have included the COE, U.S. Coast Guard, and other 
Department of Defense agencies, National Park Service, FHA, Minerals 
Management Service, Bureau of Land Management, and Federal Energy 
Regulatory Commission.
    (1) Dredging and dredge spoil placement;
    (2) Seismic exploration;
    (3) Construction and installation of facilities, pipelines, and 
roads associated with oil and gas development;
    (4) Oil and other hazardous material spills and cleanup;
    (5) Construction of dwellings, roads, marinas, and other 
structures, and associated activities including staging of equipment 
and materials;
    (6) Beach nourishment, cleaning, and stabilization (e.g., 
construction and maintenance of jetties and groins, planting of 
vegetation, and placement of dune fences);
    (7) Certain types and levels of recreational activities, such as 
vehicular activity that impact the substrate, resulting in reduced prey 
or disturbance to the species;
    (8) Stormwater and wastewater discharge from communities;
    (9) Sale, exchange, or lease of Federal land that contains suitable 
habitat and that may result in the habitat being altered or degraded;
    (10) Marsh and coastal restoration, particularly restoration of 
barrier islands and other barrier shorelines;
    (11) Military missions; and
    (12) Bridge or culvert construction, reconstruction, and 
stabilization.
    With this designation of critical habitat for wintering piping 
plovers, we notify the COE, other permitting agencies, and the public 
that Clean Water Act section 404 nationwide permits and other 
authorizations for activities within these designated critical habitat 
areas must comply with section 7 consultation requirements for critical 
habitat. For each section 7 consultation, we already review the direct 
and indirect effects of the proposed projects on piping plovers, and 
will continue to do so for the designated critical habitat.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the primary constituent elements (defined above) 
to an extent that the value of critical habitat for both the survival 
and recovery of the piping plover is appreciably reduced. These 
activities may destroy or adversely modify critical habitat by:
    (1) Significantly and detrimentally altering the hydrology of tidal 
flats;
    (2) Significantly and detrimentally altering inputs of sediment and 
nutrients necessary for the maintenance of geomorphic and biologic 
processes that insure appropriately configured and productive systems;
    (3) Introducing significant amounts of emergent vegetation (either 
through actions such as marsh restoration on naturally unvegetated 
sites, or through changes in hydrology such as severe rutting or 
changes in storm or wastewater discharges);
    (4) Significantly and detrimentally altering the topography of a 
site (such alteration may affect the hydrology of an area or may render 
an area unsuitable for roosting);
    (5) Reducing the value of a site by significantly disturbing 
plovers from activities such as foraging and roosting (including levels 
of human presence significantly greater than those currently 
experienced);
    (6) Significantly and detrimentally altering water quality, that 
may lead to decreased diversity or productivity of prey organisms or 
may have direct detrimental effects on piping plovers (as in the case 
of an oil spill); and
    (7) Impeding natural processes that create and maintain washover 
passes and sparsely vegetated intertidal feeding habitats.
    Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, P.O. Box 1306, Albuquerque, New Mexico 
87103-1306 for Texas, and to the U.S. Fish and Wildlife Service, 1875 
Century Boulevard, Suite 200, Atlanta, Georgia 30345 for all other 
States. If you have questions regarding whether specific activities 
will constitute adverse modification of critical habitat, the following 
Fish and Wildlife Service personnel may be contacted:

Alabama: Darren LeBlanc (334/441-5181)
Florida: Northwest FL: Patty Kelly (850/769-0552, extension 228), North 
FL: Candace Martino (904/232-2580, extension 129), South FL: Dave 
Martin (561/562-3909 extension 230)
Georgia: Robert Brooks (912/265-9336, extension 25)
Louisiana: Debbie Fuller (337/291-3124)
Mississippi: Linda LaClaire (601/321-1126)
North Carolina: David Rabon (919/856-4520 extension 16)
South Carolina: Paula Sisson (843/727-4707, extension 18)
Texas: Loretta Pressly (361/994-9005, extension 228)

Summary of Changes From the Proposed Rule

    For the proposed rule, shoreline was mapped at variable scales 
(zoom factors) and with less detail. For the final rule, all shoreline 
was mapped at 1:5000 or larger (greater zoom) scale. In addition to the 
standardized mapping scale, the shoreline was mapped more precisely. 
This change in mapping technique and detail resulted in an increase in 
reported total mapped shoreline kilometers and miles for some States. 
This also resulted in increases in reported mapped shoreline distances 
by ownership for some States.
    In the proposed rule, a single buffer distance was set for all 
units in all States. For the final rule, this methodology was not used 
(see ``Methods'' section).
    We have excluded Padre Island National Seashore from the proposed 
critical habitat designation, based upon a determination under section 
4(b)(2) of the Act that the benefits of excluding the Seashore outweigh 
the benefits of its inclusion. Please refer to the ``Exclusions Under 
4(b)(2) of the Act'' section of this rule for further explanation of 
this analysis.

Unit-Specific Changes

    Below are descriptions of unit-specific changes. The changes stated 
below do not include those attributed to our more fine-scale mapping 
from the proposed rule. Based on the verbal unit descriptions provided 
in the proposed rule, we feel that the public had ample opportunity to 
comment on the unit areas below as we have finalized them in this rule.

North Carolina

NC-3 Clam Shoals
    For the proposed rule, the Digital Orthophoto Quarter Quad (DOQQ) 
image for this unit was not available, so we estimated its location 
using a NC Atlas and Gazetteer. For the final rule we used a 1:100K 
Digital Raster Graphic (DRG) image. The correct version is located 
slightly outside of the bounds of the proposed map. This unit is 
entirely State-owned and its inclusion is supported by State 
biologists. This unit consists of small uninhabited islands that are 
relatively inaccessible by humans and used primarily by birds.

[[Page 36080]]

NC-5 Ocracoke Island
    We removed the eastern 3.7 km (2.3 mi) of this unit when 
information was received orally during the comment period from Service 
biologists familiar with the area. Their observations and knowledge 
attest that piping plovers concentrate within one mile of the Ocracoke 
Inlet.

Georgia

GA-14 Sea/St. Simon's Island
    We reduced this unit by approximately 360 m (1,200 ft) on the 
northern shoreline to exclude an existing seawall and groin.

Florida

FL-4 Marifarms
    We deleted this unit based upon a lack of evidence of regular use 
by piping plovers.
FL-7 Cape San Blas
    We removed 1 mile of shoreline due to specific site data provided 
by Eglin Air Force Base that documents no use of the western (mile 
markers 2.1-3.0) shoreline by piping plovers, yet consistent use on 
their remaining 2 miles of shoreline between 1 mile markers 0.0 and 
2.0.
FL-12 Lanark Reef
    Due to a mapping error, we inadvertently omitted the constituent 
elements on the eastern end of Lanark Reef. This unit extends outside 
of the area designated in the proposed rule by 0.45 km (0.28 mi) to 
capture emerging sandbars adjacent to Lanark Reef. This unit is 
entirely State-owned, and its inclusion is supported by State 
biologists. This unit consists of small uninhabited islands that are 
relatively inaccessible by humans and used primarily by birds.
FL-24 Captiva Island and Sanibel Island
    We deleted this unit based on lack of evidence of regular use by 
piping plovers.
FL-26 Estero Island
    We reduced this unit by 2.0 km (1.25 mi) after a meeting during the 
open comment period with State biologists who confirmed that piping 
plovers use the areas from the lagoon east to the inlet and not further 
to the west. We removed the area west of the lagoon located on Estero 
Island based on a lack of use by piping plovers.
FL-27 Marco Island
    This area was reduced significantly. We received sufficient 
information during the comment period to document and confirm 
consistent piping plover use of Tigertail Beach County Park and Sand 
Dollar Island and its associated sand bars within Big Marco Pass. No 
data were supplied that documented the use of Hideaway beach or the 
private beach south of Tigertail Beach County Park. Thus these areas 
were removed from the designation based on a lack of use by piping 
plovers.
FL-35 Nassau Sound-Huguenot
    Third Bird Island and the shoreline of Big Talbot Island were 
inadvertently omitted in the proposed rule map of FL-35. Data received 
prior to the proposed rule documented consistent use at these sites. 
The unit description in the proposed rule appropriately described this 
unit to include these areas.
FL-36 Tiger Islands
    This unit was reduced by 2.6 km (1.6 mi) after we received data 
during the comment period that better defined the location used by 
piping plovers.

Alabama

Unit AL-2: Dauphin, Little Dauphin, and Pelican Islands
    We removed the eastern end of Dauphin Island, from St. Stephens 
Street to the eastern tip, due to lack of evidence of consistent use of 
this portion of the island by piping plovers.

Mississippi

Unit MS-7: Beauvoir
    We deleted this unit based on a lack of evidence of regular use by 
piping plovers.
Unit MS-8: Biloxi West
    We deleted this unit based on a lack of evidence of regular use by 
piping plovers.
Unit MS-9: Biloxi East
    We deleted this unit based on a lack of evidence of regular use by 
piping plovers.

Louisiana

Unit LA-1: Texas/Louisiana border to Cheniere au Tigre
    We excluded three areas along the shoreline in the proposed unit 
based on a lack of evidence of regular use by piping plovers. Those 
areas included the shoreline between the west side of Constance Beach 
to the east side of Holly Beach, the shoreline from the eastern 
boundary of the Rockefeller Wildlife Refuge to the Freshwater Bayou 
Canal, and the shoreline from the west border of the Paul J. Rainey 
Wildlife Sanctuary east to the Vermilion parish line.
Unit LA-2: Atchafalaya River Delta
    We excluded the Wax Lake Outlet Deltas lobe and the western portion 
of the Atchafalaya River Delta based on a lack of evidence of use by 
piping plovers.
Unit LA-3: Point Au Fer Island
    We excluded the shoreline from the point where the un-named oil and 
gas canal extending southeast from Locust Bayou meets the shoreline to 
the western side of East Bay Junop based on a lack of evidence of use 
by piping plovers.
Unit LA-5: Timbalier Island to East Grand Terre Island
    The shoreline of East Timbalier Island, the shoreline from Bay 
Champagne to the west side of Elmers Island, the area between the 
hurricane protection levee and the bayside shoreline of Grand Isle, and 
the shoreline of Grand Terre Island were excluded due to lack of 
evidence of use by piping plovers.
Unit LA-6: Mississippi River Delta
    We reduced this unit by 261,247 ha (645,280 ac) after the Service 
and the Louisiana Department of Wildlife and Fisheries surveyed for 
piping plovers in this area during December 2000. Piping plovers were 
located only on the sand islands off the South Pass of the Mississippi 
River during that survey effort. Plovers were documented using the same 
islands during the February 2001 International Piping Plover Survey. 
Thus, this unit consists only of those islands.

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. The economic 
impacts to be considered in a critical habitat designation are the 
incremental effects of the designation over and above the economic 
impacts attributable to listing of the species.
    We may exclude areas from critical habitat upon a determination 
that the benefits of such exclusions outweigh the benefits of 
specifying those areas as critical habitat; however, we cannot exclude 
areas from critical habitat when the exclusion will result in the 
extinction of the species. We utilized the economic analysis, and took 
into consideration all comments and information submitted during the 
public hearings and comment period, to determine whether areas should 
be

[[Page 36081]]

excluded from the final critical habitat designation.
    An analysis of the economic effects of the proposed wintering 
plover critical habitat designation was prepared (Industrial Economics, 
Incorporated, 2001) and made available for public review (65 FR 52691; 
August 30, 2000). The economic analysis reflected the assumption that 
some additional impacts may be experienced as a result of critical 
habitat designation. The analysis uses a sampling of case studies 
provided by commenters as well as interviews with stakeholders with 
projects that had the requisite Federal nexus for our analysis. 
Estimates of the cost of an individual consultation were developed from 
a review and analysis of historical section 7 files from a number of 
Service field offices around the country. These files addressed 
consultations conducted for both listings and critical habitat 
designations. Cost figures were based on an average level of effort for 
consultations of low, medium, or high complexity, multiplied by the 
appropriate labor rates for staff from the Service and other Federal 
agencies. Thus, the cost estimates included the potential impact from 
all expected future consultations in the area proposed to be designated 
as critical habitat.
    Economic effects caused by listing the wintering population of the 
piping plover as a federally protected threatened species, and by other 
statutes, are the baseline against which we evaluated the effects of 
the critical habitat designation. The final analysis, which reviewed 
and incorporated public comments, concluded that there would be some 
impacts as discussed below in the ``Exclusions Under 4(b)(2) of the 
Act'' section of the rule, but that they would not be significant 
beyond those already imposed by listing the wintering plover population 
as a threatened species.
    The economic analysis revealed six activities that may be affected 
by the designation of wintering critical habitat for the piping plover 
because they occur within or near critical habitat areas. These 
activities are: (1) housing and commercial shoreline development; (2) 
dredging and disposal of dredged materials; (3) beach nourishment; (4) 
oil and gas exploration, (5) recreational visitation of shoreline, and 
(6) waterway operations. Additionally highway construction and disaster 
relief were also identified as activities that could be potentially 
affected due to the designation of some units.
    Economic effects of critical habitat designation are only those 
effects that result from the designation. Since the listing of the 
wintering population of the piping plover as threatened in 1985, we 
have consulted on the above mentioned activities at one time or 
another. While the economic analysis considered the effect that 
critical habitat designation could have on these activities, any costs 
associated with these activities within critical habitat would most 
likely occur as a result of the listing, due to the occupied status of 
critical habitat. However, the analysis recognizes that, even in cases 
where consultations would be expected in the absence of critical 
habitat, there are scenarios that could involve additional consultation 
costs. For example, (1) some consultations that have already been 
``completed'' may need to be reinitiated to address critical habitat if 
the project is not completed; and (2) consultations taking place after 
critical habitat designation may take longer because critical habitat 
issues will need to be addressed.

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

    A draft analysis of the economic effects of the proposed wintering 
piping plover critical habitat designation was prepared and made 
available for public review (August 30, 2000; 65 FR 52691). We 
concluded in the final analysis, that included review and incorporation 
of public comments, that no significant economic impacts are expected 
from critical habitat designation above and beyond those already 
imposed by the listing of wintering piping plovers. A copy of the final 
economic analysis is included in our administrative record and may be 
obtained by contacting the Corpus Christi Ecological Services Field 
Office (see ADDRESSES section).
    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 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 section 10(a)(1)(B) permit issued by us as a result 
of an HCP application must itself undergo 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 very similar 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.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information

[[Page 36082]]

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 that may result from critical 
habitat designation. These include the need for additional consultation 
with us 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 
conservation 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 wintering 
piping plovers to determine whether the benefits of excluding these 
particular areas outweigh the benefits of including them.
    In the event that future HCPs covering the wintering 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 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, we will reassess the critical habitat 
boundaries in light of the HCP. We will seek to undertake this review 
when the HCP is approved, but funding constraints may influence the 
timing of such a review.
    During the comment period for the proposed designation of critical 
habitat for the piping plover, BNP Petroleum Corporation submitted a 
detailed economic analysis, prepared by Milton L. Holloway, Ph.D., 
Resource Economics, Inc., Austin, Texas. Their analysis concluded that 
the designation will cause significant economic impacts because of 
large unoccupied areas being included in the designation, resulting in 
additional consultations with the Service and delays in proposed 
projects causing economic effects. They note as an example of such 
delays, oil and gas operators within critical habitat and the Plan of 
Operations permit process coordinated by the National Park Service, 
Padre Island National Seashore. The activities identified as being 
affected include (1) the exploration, development and production of oil 
and gas reserves, (2) recreational use of coastal areas, (3) real-
estate development projects for residential and commercial use, and (4) 
transportation of commodities on the Gulf Intracoastal Waterway. They 
conclude that all landowners having potential habitat (upon initiation 
of a project) will need to go through the section 7 consultation 
process with the Service, thus, incurring additional costs to determine 
if plover habitat is present. Due to the uncertainty of the outcome of 
such consultations, they conclude that all property will be devalued as 
a result of the designation. They cite the citizen suit provisions of 
section 11 of the Act as a means by which property owners may be the 
target of potential violations of the Act, by opponents asserting that 
any activity in the area will lead to ``take'' of the species. They 
state that this potential for litigation will also result in the 
devaluation of property.
    In the final Economic Analysis prepared for the Service by 
Industrial Economics, Inc., Cambridge, Massachusetts, there is 
recognition that the designation of critical habitat for the piping 
plover may result in additional section 7 consultation costs because 
future consultations would need to address critical habitat issues, in 
addition to the effects on the species, and would therefore require 
more time. Additionally, in the analysis and noted in this rule, we 
acknowledge that some Federal agencies may initiate consultation more 
often than before, because critical habitat has increased their 
awareness of the species. Even though consideration of critical habitat 
is not likely to impose further project modifications beyond those 
required by

[[Page 36083]]

the listing of the plover, project proponents may nonetheless incur 
costs above and beyond those attributable to the listing of the plover 
as a threatened species. These costs might include the value of time 
spent in conducting section 7 consultations beyond those associated 
with the listing, and/or delays in implementing oil and gas activities.
    The Padre Island National Seashore (Seashore) has in place a 
General Management Plan/Development Concept Plan (USDI 1983) and a 
Final Oil and Gas Management Plan/Environmental Impact Statement (USDI 
2000), collectively referred to as the Plans. These Plans provide as 
general management direction that ``[n]atural process will be allowed 
to shape the barrier island with as little interference as possible.'' 
We feel that achieving these results will provide for the perpetuation 
of the primary constituent elements of the plover, since the piping 
plovers habitat is dependent upon natural processes that shape the 
coastal environment. Thus, we feel that the National Park Service has 
in place Plans that provide for adequate management and conservation of 
the piping plover on lands within the Seashore.
    The operating standards in the Oil and Gas Management Plan/
Environmental Impact Statement for the Seashore include:

    All proposed Plans of Operation will be evaluated for potential 
impacts to special-status species. If the evaluation indicates a 
``may affect'' situation (includes both beneficial and adverse 
impacts) on a federally-listed or proposed species, and the adverse 
impacts cannot be eliminated, consultation or conference with the 
U.S. Fish and Wildlife Service (FWS) and/or National Marine 
Fisheries Service must be conducted.

    Because Plans of Operation will be evaluated whether or not the 
activities occur within critical habitat, and piping plovers are 
present on the Seashore, we find that including the Seashore in 
critical habitat would provide no additional benefit to the species. In 
addition, we do not feel that a designation of critical habitat would 
result in any benefits from an increased awareness of the species 
presence on the part of Federal agencies and possibly an increased 
number of consultations. This is due to the fact that the Seashore has 
Plans in place requiring consultation with the Service when any 
activities that may affect a federally listed species are proposed 
within the boundaries of the Seashore.
    We also find that exclusion of the Seashore from critical habitat 
would avoid the additional costs that may result from time delays in 
addressing critical habitat issues, in addition to the effects on the 
species. These costs might include the value of time spent in 
conducting section 7 consultations beyond those associated with the 
listing, and/or delays in implementing oil and gas activities.
    Thus, based on the BNP Petroleum Economic Analysis and the one 
prepared for the Service, we find that the benefits of excluding the 
Padre Island National Seashore outweigh the benefits of its inclusion.
    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 contact information under the ``Effects of Critical Habitat 
Designation'' section of this final rule).

American Indian Tribal Rights, Federal--Tribal Trust 
Responsibilities, and the Endangered Species Act

    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. No tribal lands were 
proposed for designation as critical habitat, and no effects on tribal 
trust resources are anticipated from this designation.

Required Determinations

Regulatory Planning and Review

    Under E.O. 12866 (58 FR 51735, October 4, 1993), we must determine 
whether this proposed regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the E.O. The E.O. defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866.
    (a) While this rule is not expected to have an annual effect on the 
economy of $100 million or more, OMB has determined that this final 
rule is a ``significant regulatory action'' under E.O. 12866 because it 
may raise novel legal or policy issues.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; the Act does not impose any restrictions through 
critical habitat designation on non-Federal persons unless they are 
conducting activities funded or otherwise sponsored, authorized, or 
permitted by a Federal agency. Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species in addition to avoiding adversely modifying critical habitat. 
In some instances, the designation of critical habitat could result in 
an increase in section 7 consultations concerning Federal actions that 
may adversely modify critical habitat, and that may, in some instances, 
affect third party actions that rely on or are related to the Federal 
action subject to the consultation (i.e., Federal nexus). However, we 
do not believe this effect will result from this rulemaking because we 
are only designating areas that are currently occupied by the wintering 
population of the piping plover and, based upon our experience with the 
plover and its needs, we believe that any Federal action or authorized 
action that could potentially cause adverse modification of designated 
critical habitat would also be considered as ``jeopardy'' under the 
Act, that would result in a section 7 consultation regardless of 
critical habitat designation.
    (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 
plover 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 agencies 
activities, we will continue to review this action for any 
inconsistencies with other Federal agencies 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

[[Page 36084]]

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.
    (d) OMB has determined that his rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

------------------------------------------------------------------------
                                                           Additional
                                                           activities
                                Activities potentially     potentially
   Categories of activities       affected by species      affected by
                                   listing only \1\     critical habitat
                                                         designation \2\
------------------------------------------------------------------------
Federal activities potentially  Activities such as      None.
 affected \3\.                   removing or
                                 destroying piping
                                 plover wintering
                                 habitat, whether by
                                 mechanical, chemical,
                                 or other means (e.g.,
                                 construction, road
                                 building, dredging
                                 and other navigation
                                 projects, boat launch
                                 and marina
                                 construction or
                                 maintenance, beach
                                 nourishment, erosion
                                 control);
                                 recreational
                                 activities that
                                 significantly deter
                                 the use of suitable
                                 habitat areas by
                                 piping plovers or
                                 alter habitat through
                                 associated
                                 maintenance
                                 activities; sale,
                                 exchange, or lease of
                                 Federal land that
                                 contains suitable
                                 habitat that may
                                 result in the habitat
                                 being destroyed or
                                 appreciably degraded.
Private and other non-federal   Activities such as      None.
 activities potentially          removing or
 affected \4\.                   destroying piping
                                 plover habitat,
                                 whether by
                                 mechanical, chemical,
                                 or other means (e.g.,
                                 construction, road
                                 building, dredging
                                 and other navigation
                                 projects, boat launch
                                 and marina
                                 construction or
                                 maintenance, beach
                                 nourishment, erosion
                                 control) and
                                 appreciably
                                 decreasing habitat
                                 value or quality
                                 (e.g., increased
                                 vehicular activity on
                                 sensitive habitats,
                                 increased predators,
                                 reduced water
                                 quality, modified
                                 hydrology) that
                                 require a Federal
                                 action (permit,
                                 authorization, or
                                 funding).
------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by
  listing the piping plover as a threatened species (December 11, 1985;
  50 FR 50720) under the Endangered Species Act.
\2\ This column represents the effects on activities resulting from
  critical habitat designation beyond the effects attributable to the
  listing of the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) an agency must prepare and make available for public 
comment a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions).
    However, no regulatory flexibility analysis is required if the head 
of an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. In the economic analysis, we 
determined that designation of critical habitat will not have a 
significant economic effect on a substantial number of small entities. 
Although small entities may carry out activities within designated 
critical habitat, many of these activities lack a Federal nexus and 
therefore their impacts on critical habitat do not need to be 
considered. For those actions requiring Federal funding or authority, 
we believe that the incremental impacts attributable to this rule are 
not significant for reasons explained above and in the revised economic 
analysis. Therefore, we are certifying that the designation of critical 
habitat for the wintering population of the piping plover will not have 
a significant economic impact on a substantial number of small 
entities.

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

    Our economic analysis demonstrated 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.

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 programs 
involving Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of $100 million or greater in 
any year, i.e., 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 final rule will not ``take'' private property. 
The designation of critical habitat affects only Federal agency 
actions. Federal actions on private lands could be affected by critical 
habitat designation. However, we expect no regulatory effect from this 
designation since all designated areas are considered occupied by the 
species and would be reviewed under both the jeopardy and adverse 
modification standards under section 7 of the Act.
    The rule will not increase or decrease the current restrictions on 
private property concerning taking of the piping plover as defined in 
section 9 of the Act and its implementing regulations (50 CFR 17.31). 
Additionally, critical habitat designation does not preclude 
development of habitat conservation plans and issuance of incidental 
take permits. Landowners in areas that are

[[Page 36085]]

included in the designated critical habitat will continue to have 
opportunity to utilize their property in ways consistent with the 
survival 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 policy, the 
Service requested information from and coordinated development of this 
critical habitat proposal with appropriate State resource agencies in 
North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, 
Louisiana, and Texas. We will continue to coordinate any future 
designation of critical habitat for wintering piping plovers with the 
appropriate State agencies. The designation of critical habitat for the 
piping plover is not expected to result in any additional restrictions 
to those currently in place and, therefore, no incremental impact on 
State and local governments and their activities are expected. The 
designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, doing so may assist these 
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We made every effort to ensure 
that this final determination contains no drafting errors, provides 
clear standards, simplifies procedures, reduces burden, and is clearly 
written such that litigation risk is minimized.

Energy Supply, Distribution or Use (Executive Order 13211)

    In accordance with Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use,'' the Service asserts that this rule is not likely to have a 
significant adverse effect on the supply, distribution or use of 
energy. While this rule is not expected to have an annual effect on the 
economy or $100 million or more, OMB has determined that this final 
rule is a ``significant regulatory action'' under Executive Order 12866 
because it may raise novel legal or policy issues. This rulemaking 
designates critical habitat for the piping plover and such designation 
does not impact the Nation's energy resources. This rulemaking does not 
designate any areas that have been identified as having oil or gas 
reserves, whether in production or otherwise identified for future use.

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

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

National Environmental Policy Act

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

References Cited

    A complete list of all references cited in this final rule are 
available upon request from the Corpus Christi Ecological Services 
Field Office (see ADDRESSES section).

Author

    The primary authors of this final rule include Ecological Services 
staff from both the Service's Southwestern and Southeastern Regional 
and Field Offices.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, 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 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         U.S.A. (Great      Great Lakes,       E                     211     17.95(b)          NA.
                                  melodus.           Lakes, northern    watershed in
                                                     Great Plains,      States of IL,
                                                     Atlantic and       IN, MI, NM, NY,
                                                     Gulf coasts, PR,   OH, PA, and WI
                                                     VI), Canada,       and Canada
                                                     Mexico, Bahamas,   (Ont.).
                                                     West Indies.
Do.............................  do...............  do...............  Entire, except     T                     211     17.95(b)          NA.
                                                                        those areas
                                                                        where listed as
                                                                        endangered above.

[[Page 36086]]

 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(b) by adding critical habitat for the piping 
plover (Charadrius melodus) 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) Wintering Habitat

    1. The primary constituent elements essential for the conservation 
of wintering piping plovers are those habitat components that support 
foraging, roosting, and sheltering and the physical features necessary 
for maintaining the natural processes that support these habitat 
components. The primary constituent elements include intertidal beaches 
and flats (between annual low tide and annual high tide) and associated 
dune systems and flats above annual high tide. Important components of 
intertidal flats include sand and/or mud flats with no or very sparse 
emergent vegetation. In some cases, these flats may be covered or 
partially covered by a mat of blue-green algae. Adjacent non-or 
sparsely vegetated sand, mud, or algal flats above high tide are also 
important, especially for roosting piping plovers, and are primary 
constituent elements of piping plover wintering habitat. Such sites may 
have debris, detritus (decaying organic matter), or micro-topographic 
relief (less than 50 cm above substrate surface) offering refuge from 
high winds and cold weather. Important components of the beach/dune 
ecosystem include surf-cast algae, sparsely vegetated backbeach and 
salterns (beach area above mean high tide seaward of the permanent dune 
line, or in cases where no dunes exist, seaward of a delineating 
feature such as a vegetation line, structure, or road), spits, and 
washover areas. Washover areas are broad, unvegetated zones, with 
little or no topographic relief, that are formed and maintained by the 
action of hurricanes, storm surge, or other extreme wave action.
    2. Critical habitat does not include existing developed sites 
consisting of buildings, marinas, paved areas, boat ramps, exposed oil 
and gas pipelines and similar structures. Only those areas containing 
these primary constituent elements within the designated boundaries are 
considered critical habitat.
    3. Below, we describe each unit in terms of its location, size, and 
ownership. These textual unit descriptions are the definitive source 
for determining the critical habitat boundaries. All distances and 
areas provided here are approximated. General location maps by State 
are provided at the end of each State's unit descriptions and are 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    North Carolina (Maps were digitized using 1993 DOQQs, except NC-3 
(1993 DRG)
Unit NC-1: Oregon Inlet. 404 ha (997 ac) in Dare County
    This unit extends from the southern portion of Bodie Island to the 
northern portion of Pea Island. It includes all land south of the 
Oregon Inlet Marina and Fishing Center to 0.50 km (0.31 mile) south of 
the junction of Highway 12 and SR 1257. This unit includes lands from 
MLLW on the Pamlico Sound across (and including all land) to MLLW on 
Atlantic Ocean shoreline. Any emergent sandbars south and west of 
Oregon Inlet are included.
Unit NC-2: Cape Hatteras Point. 465 ha (1149 ac) in Dare County
    The majority of the unit is within Cape Hatteras National Seashore. 
This unit extends south from the Cape Hatteras Lighthouse to the point 
of Cape Hatteras and then extends west 6.4 km (4.0 mi) along Hatteras 
Cove shoreline. The unit includes lands from the MLLW on the Atlantic 
Ocean and stops landward where densely vegetated habitat, not used by 
the piping plover, begins and where constituent elements no longer 
occur.
Unit NC-3: Clam Shoals. 28 ha (70 ac) in Dare County
    The entire unit is owned by the State. This unit includes several 
islands in Pamlico Sound known as Bird Islands. This unit includes 
lands on all islands to the MLLW.
Unit NC-4: Hatteras Inlet. 516 ha (1273 ac) in Dare and Hyde Counties
    The majority of the unit is surrounded by Cape Hatteras National 
Seashore, but is privately owned. This unit extends west from the end 
of Highway 12 on the western portion of Hatteras Island to 1.25 km 
(0.78 mi) southwest of the ferry terminal at the end of Highway 12 on 
Ocracoke Island. It includes all lands where constituent elements occur 
from MLLW on the Atlantic Ocean across to MLLW on Pamlico Sound. All 
emergent sandbars within Hatteras Inlet between Hatteras Island and 
Ocracoke Island are also included.
Unit NC-5: Ocracoke Island. 80 ha (197 ac) in Hyde County
    The majority of this unit is within Cape Hatteras National 
Seashore. It includes the western portion of Ocracoke Island beginning 
3.5 km (2.2 mi) west of the junction of Highway 12 and the local road 
(no name) extending west to Ocracoke Inlet. It includes all land from 
MLLW on the Atlantic Ocean across to MLLW on Pamlico Sound. All 
emergent sandbars within Ocracoke Inlet are also included.
Unit NC-6: Portsmouth Island-Cape Lookout. 3187 ha (7873 ac) in 
Carteret County
    The entire unit is within Cape Lookout National Seashore. This unit 
includes all land to MLLW on Atlantic Ocean to MLLW on Pamlico Sound, 
from Ocracoke Inlet extending west to the western end of Pilontary 
Islands. This unit includes the islands of Casey, Sheep, Evergreen, 
Portsmouth, Whalebone, Kathryne Jane, and Merkle Hammock. This unit 
also extends west from the eastern side of Old Drum Inlet to 1.6 km 
(1.0 mi) west of New Drum Inlet and includes all lands from MLLW on 
Atlantic Ocean to MLLW on Core Sound.
Unit NC-7: South Core Banks. 552 ha (1364 ac) in Carteret County
    The entire unit is within Cape Lookout National Seashore. This unit 
extends south from Cape Lookout Lighthouse, along Cape Lookout, to Cape 
Point and northwest to the northwestern peninsula. All lands from MLLW 
on the Atlantic Ocean, Onslow Bay, and Lookout Bight up to where 
densely vegetated habitat, not used by

[[Page 36087]]

the piping plover, begins and the constituent elements no longer occur 
are included.
Unit NC-8: Shackleford Banks. 716 ha (1769 ac) in Carteret County
    The entire unit is within Cape Lookout National Seashore. This unit 
is in two parts: (1) The eastern end of Shackleford Banks from MLLW of 
Barden Inlet extending west 2.4 km (1.5 mi), including Diamond City 
Hills, Great Marsh Island, and Blinds Hammock; and, (2) The western end 
of Shackleford Banks from MLLW extending east 3.2 km (2.0 mi) from 
Beaufort Inlet. The unit includes all land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur and any emergent sandbars within 
Beaufort Inlet. This unit is bordered by Onslow Bay, Shackleford Slue, 
and Back Sound.
Unit NC-9: Rachel Carson. 445 ha (1100 ac) in Carteret County
    The entire unit is within the Rachel Carson National Estuarine 
Research Reserve. This unit includes islands south of Beaufort 
including Horse Island, Carrot Island, and Lennox Point. This unit 
includes entire islands to MLLW.
Unit NC-10: Bogue Inlet. 143 ha (354 ac) in Carteret and Onslow 
Counties
    The majority of the unit is privately owned, with the remainder 
falling within Hammocks Beach State Park. This unit includes contiguous 
land south, west, and north of Bogue Court to MLLW line of Bogue Inlet 
on the western end of Bogue Banks. It includes the sandy shoals north 
and adjacent to Bogue Banks and the land on Atlantic Ocean side to 
MLLW. This unit also extends 1.3 km (0.8 mi) west from MLLW of Bogue 
Inlet on the eastern portion of Bear Island.
Unit NC-11: Topsail. 451 ha (1114 ac) in Pender County and Hanover 
County
    The entire area is privately owned. This unit extends southwest 
from 1.0 km (0.65 mi) northeast of MLLW of New Topsail Inlet on Topsail 
Island to 0.53 km (0.33 mi) southwest of MLLW of Rich Inlet on Figure 
Eight Island. It includes both Rich Inlet and New Topsail Inlet and the 
former Old Topsail Inlet. All land, including emergent sandbars, from 
MLLW on Atlantic Ocean and sound side to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. In Topsail Sound, the unit stops 
as the entrance to tidal creeks become narrow and channelized.
Unit NC-12: Figure Eight Island. 134 ha (331 ac) in New Hanover County
    The majority of the unit is privately owned. This unit extends 
south from the western end of Beach Road on Figure Eight Island to the 
northern end of Highway 74 on Wrightsville Beach. The unit includes 
Mason Inlet and the sand and mudflats northwest of the inlet from MLLW 
on Atlantic Ocean to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.
Unit NC-13: Masonboro. 61 ha (150 ac) in New Hanover County
    The entire unit is within the North Carolina National Estuarine 
Research Reserve. This unit extends 1.1 km (0.70 mi) south from the 
MLLW of Masonboro Inlet on Masonboro Island. This unit includes all 
lands along the Atlantic Ocean, Masonboro Inlet, and Masonboro Sound 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur.
Unit NC-14: Carolina Beach Inlet. 374 ha (924 ac) in New Hanover County
    The majority of the unit is within Myrtle Grove Sound on Masonboro 
Island and is owned by the North Carolina National Estuarine Research 
Reserve. It extends 1.80 km (1.12 mi) west along the south shoreline of 
Wolf Island from the mouth of the Altamaja sound. This unit extends 
south from 3.2 km (2.0 mi) north of MLLW at Carolina Beach Inlet on 
Masonboro Island to 1.1 km (0.70 mi) south of MLLW at Carolina Beach 
Inlet on Carolina Beach. It includes land from MLLW on Atlantic Ocean 
across and including lands to MLLW on the western side of Masonboro 
Island, excluding existing dredge spoil piles. Emergent sand bars 
within Carolina Beach Inlet are also included.
Unit NC-15: Ft. Fisher. 790 ha (1951 ac) in New Hanover and Brunswick 
Counties
    This unit is within Ft. Fisher State Recreation Area and Zeke's 
Island Estuarine Reserve. This unit extends south from Ft. Fisher 
Islands (from the rocks), south of the ferry terminal, to approximately 
0.8 km (0.5 mi) south of MLLW at Corn Cake Inlet on Smith Island. It 
includes all land (including Zeke's Island) from MLLW on Atlantic Ocean 
across to MLLW on the eastern side of the Cape Fear River.
Unit NC-16: Lockwood Folly Inlet. 36 ha (90 ac) in Brunswick County
    The entire unit is on Oak Island (formerly known as the Town of 
Long Beach) and is privately owned. This unit extends from the end of 
West Beach Drive, west to MLLW at Lockwood Folly Inlet, including 
emergent sandbars south and adjacent to the island. This unit is 
includes land from MLLW on Atlantic Ocean across to MLLW adjacent to 
the Eastern Channel and the Intracoastal Waterway.
Unit NC-17: Shallotte Inlet. 120 ha (296 ac) in Brunswick County
    The entire unit is privately owned. This unit begins just west of 
Skimmer Court on the western end of Holden Beach. It includes land 
south of SR 1116, to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur to the MLLW along the Atlantic Ocean. It includes the contiguous 
shoreline from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur along the Atlantic Ocean, Shallotte Inlet, and Intracoastal 
Waterway stopping north of Skimmer Court Road. The unnamed island and 
emergent sandbars to MLLW within Shallotte Inlet are also included.
Unit NC-18: Mad Inlet. 112 ha (278 ac) in Brunswick County
    The entire unit is privately owned. This unit extends west 1.2 km 
(0.75 mi) from the end of Main Street (SR 1177) on western Sunset Beach 
to the eastern portion of Bird Island and includes the marsh areas 
north of western Sunset Beach shoreline. The shoreline area begins at 
MLLW on the Atlantic Ocean and continues landward to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.

BILLING CODE 4310-55-P

[[Page 36088]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.000


[[Page 36089]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.001


[[Page 36090]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.002


[[Page 36091]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.003


[[Page 36092]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.004

BILLING CODE 4310-55-C

[[Page 36093]]

    South Carolina (Maps were digitized using 1994 DOQQs)
Unit SC-1: Waites Island-North. 75 ha (186 ac) in Horry County
    This unit includes the northern tip of Waites Island from the MLLW 
at Little River Inlet and runs west along the Atlantic Ocean shoreline 
2.0 km (1.25 mi) and includes land from the MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The unit continues north and west 
of Little River Inlet stopping at Sheephead Creek, including land from 
MLLW to dense vegetation line. The majority of the unit is privately 
owned.
Unit SC-2: Waites Island-South. 58 ha (142 ac) in Horry County
    This unit includes the southern tip of Waites Island from the MLLW 
at Hog Inlet and runs east along the Atlantic Ocean shoreline 0.80 km 
(0.50 mi) and includes MLLW to where densely vegetated habitat, not 
used by the piping plover, begins and where the constituent elements no 
longer occur. It continues north and west of the Hog Inlet, stopping at 
the first major tributary. Critical habitat includes from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur. Emerging sandbars 
within Hog Inlet and adjacent to the tip if eastern Cherry Grove Beach 
are also included from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begins and where 
the constituent elements no longer occur. The majority of this unit is 
privately owned.
Unit SC-3: Murrells Inlet/Huntington Beach. 135 ha (334 ac) in 
Georgetown County
    The majority of the unit is within Huntington Beach State Park. 
This unit extends from the southern tip of Garden City Beach, just 
south of the groins (a rigid structure or structures built out from a 
shore to protect the shore from erosion or to trap sand) north of 
Murrells Inlet from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begins and where 
the constituent elements no longer occur stopping perpendicular with 
the southern end of Inlet Point Drive. It includes from MLLW south of 
Murrells Inlet to the northern edge of North Litchfield Beach 
approximately 4.5 km (3.0 mi). The unit includes the MLLW from the 
Atlantic Ocean up to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. The lagoon at the north end of Huntington Beach State Park is 
also included.
Unit SC-4: Litchfield. 11 ha (28 ac) in Georgetown County
    This unit includes the southern tip of Litchfield Beach beginning 
0.50 km (0.30 mi) north of Midway Inlet and stopping at the MLLW at 
Midway Inlet. It includes from the MLLW on the Atlantic Ocean shoreline 
across and including land to the MLLW on the back bayside. This unit is 
mostly privately owned.
Unit SC-5: North Inlet. 99 ha (245 ac) in Georgetown County
    The majority of the unit is within Tom Yawley Wildlife Center 
Heritage Preserve. This unit extends from MLLW to 1.0 km (.62 mi) north 
of North Inlet on Debidue Beach. It includes shoreline on the Atlantic 
Ocean from MLLW to the MLLW on the western side of the peninsula. This 
unit also includes from the MLLW south of North Inlet 1.6 km (1.0 mi). 
It includes the shoreline on the Atlantic Ocean from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur. It includes shoreline 
running south and west of the inlet from the MLLW stopping at the MLLW 
at the first large tributary (no name).
Unit SC-6: North Santee Bay Inlet. 305 ha (753 ac) in Georgetown County
    The majority of the unit is within the Tom Yawley Wildlife Center 
Heritage Preserve and the Santee-Delta Wildlife Management Area. This 
unit is at the North Santee Bay inlet and includes lands of South 
Island, Santee Point, Cedar Island, and all of North Santee Sandbar. 
This unit includes from MLLW at North Santee Bay Inlet running north 
along the Atlantic Ocean side of South Island 7.2 km (4.5 mi), stopping 
0.60 km (0.4 mi) north of an unnamed inlet. It includes areas from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur. This unit 
includes the eastern side of Cedar Island adjacent to the North Santee 
Bay Inlet from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. All of North Santee Sandbar to MLLW is included.
Unit SC-7: Cape Romain. 315 ha (777 ac) in Charleston County
    The majority of the unit is within Cape Romain National Wildlife 
Refuge. This unit includes the MLLW to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur on the southern and southeastern most 1.9 km 
(1.2 mi) portion of Cape Island, the southernmost portion of Lighthouse 
Island from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur, all of Lighthouse Island South to MLLW, and the southern side of 
the far eastern tip of Raccoon Key from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit SC-8: Bull Island. 134 ha (332 ac) in Charleston County
    The majority of the unit is within Cape Romain National Wildlife 
Refuge and land owned by the South Carolina Department of Natural 
Resources. This unit includes from Schooner Creek on north and south of 
the river to north of Price's Inlet on the southern portion of Bull 
Island along the Atlantic Ocean 1.6 km (1.0 mi) and south of Price's 
Inlet on the northeast tip of Capers Island Heritage Preserve 1.4 km 
(.86 mi) along the Atlantic Ocean. All areas begin at MLLW and extend 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
Unit SC-9: Stono Inlet. 495 ha (1223 ac) in Charleston County
    Most of this unit is privately owned. It includes the eastern end 
of Kiawah Island (approximately 4.0 km (2.5 mi)) from MLLW on Atlantic 
Ocean running north to MLLW on first large tributary connecting east of 
Bass Creek running northeast into Stono River. It includes MLLW up to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur along Stono Inlet 
and River. All of Bird Key-Stono Heritage Preserve and all of Skimmer 
Flats to MLLW are included. The Golf course and densely vegetated areas 
are not included.
Unit SC-10: Seabrook Island. 117 ha (290 ac) in Charleston County
    This unit runs from just 0.16 km (0.10 mi) north of Captain Sams 
Inlet to the southwest approximately 3.4 km (2.1 mi) along the Atlantic 
Ocean shoreline. It includes land areas from the MLLW on the Atlantic 
Ocean to where densely

[[Page 36094]]

vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. Most of this unit is privately 
owned.
Unit SC-11: Deveaux Bank. 130 ha (322 ac) in Charleston County
    The entire unit is within Deveaux Bank Heritage Preserve. This unit 
includes all of Deveaux Island to the MLLW and is State-owned.
Unit SC-12: Otter Island. 68 ha (169 ac) in Colleton County
    The majority of the unit is within St. Helena Sound Heritage 
Preserve. This unit includes the southern portion of Otter Island to 
the eastern mouth of Otter Creek. It includes the MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The entire unit is State-owned.
Unit SC-13: Harbor Island. 50 ha (122 ac) in Beaufort County
    The majority of the unit is State-owned. This unit extends from the 
northeastern tip of Harbor Island and includes all of Harbor Spit. It 
begins at the shoreline east of Cedar Reef Drive running south, 
stopping at the mouth of Johnson Creek. It includes the MLLW on the 
Atlantic Ocean and St. Helena Sound to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur. All of Harber Spit to MLLW is included.
Unit SC-14: Caper's Island. 238 ha (589 ac) in Beaufort County
    Most of this unit is privately owned. This unit includes the 
southern-most 4.5 km (2.8 mi) along the Atlantic Coast shoreline of 
Little Caper's Island beginning at MLLW on south side of the inlet (un-
named). It includes the MLLW on the Atlantic Ocean shoreline to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur.
Unit SC-15: Hilton Head. 43 ha (106 ac) in Beaufort County
    The majority of this unit is State-owned. This unit includes the 
northeastern tip (Atlantic Ocean side) of Hilton Head Island and all of 
Joiner Bank. It begins at the shoreline east of northern Planters Row 
and ends at the shoreline east of Donax Road. It includes the MLLW of 
Port Royal Sound and the Atlantic Ocean to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. All of Joiner Bank to MLLW is 
included.

BILLING CODE 4310-55-P

[[Page 36095]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.005


[[Page 36096]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.006


[[Page 36097]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.007


[[Page 36098]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.008

BILLING CODE 4310-55-C

[[Page 36099]]

    Georgia (Maps were digitized using 1993-94 DOQQs)
Unit GA-1: Tybee Island. 37 ha (91 ac) in Chatham County
    The majority of the unit is privately owned. This unit extends 
along the northern tip of Tybee Island starting from 0.8 km (0.5 mi) 
northeast from the intersection of Crab Creek and Highway 80 to 0.7 km 
(0.41 mi) northeast from the intersection of Highway 80 and Horse Pen 
Creek. The unit includes MLLW on Savannah River and Atlantic Ocean to 
where densely vegetated habitat or developed structures, not used by 
the piping plover, begin and where the constituent elements no longer 
occur.
Unit GA-2: Little Tybee Island. 719 ha (1776 ac) in Chatham County
    The majority of the unit is within Little Tybee Island State 
Heritage Preserve. This unit extends just south of the first inlet to 
Wassaw Sound along the Atlantic Ocean coastline, extending north along 
the sound 1.7 km (1.1 mi). It includes habitat from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur.
Unit GA-3: North Wassaw Island. 108 ha (267 ac) in Chatham County
    The entire unit is within Wassaw National Wildlife Refuge. This 
unit includes the north-east tip of Wassaw Sound, 1.6 km (1.0 mi) along 
the inlet side and extending south along the Atlantic Ocean shoreline 
for 1.6 km (1.0 mi). It includes land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit GA-4: South Wassaw Island. 61 ha (151 ac) in Chatham County
    The entire unit is within Wassaw National Wildlife Refuge. This 
unit extends from the last southern 1.6 km (1.0 mi.) on Atlantic Ocean 
side, around the southern tip of Wassaw Island, up to mouth of 
Odingsell River. It includes land from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit GA-5: Ossabaw Island. 434 ha (1072 ac) in Chatham County
    The entire unit is within Ossabaw Island State Heritage Preserve. 
This unit includes the northeastern tip from the mouth of the Bradley 
River east and 12 km (7.5 mi) south along the Atlantic Ocean shoreline 
to a point 0.4 km (0.25 mi) past the south-center inlet. It includes 
land from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.
Unit GA-6: St. Catherine's Island Bar. 54 ha (135 ac) in Liberty County
    The entire unit is State owned and located east-northeast of St. 
Catherine's Island. This unit includes the entire St. Catherine's 
Island Bar to MLLW.
Unit GA-7: McQueen's Inlet. 215 ha (532 ac) in Liberty County
    The majority of the unit is private land along the eastern-central 
coastline on St. Catherine's Island. This unit extends from McQueen's 
Inlet north approximately 3.5 km (2.2 mi) and south approximately 1.8 
km (1.1 mi). It includes land from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit GA-8: St. Catherine's Island. 60 ha (147 ac) in Liberty County
    The majority of the unit is private land on the southern tip of St. 
Catherine's Island. This unit starts 1.2 km (0.75 mi) north of Sapelo 
Sound (along Atlantic Ocean shoreline) and stops inland at Brunsen 
Creek. It includes land from MLLW to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur.
Unit GA-9: Blackbeard Island. 129 ha (319 ac) in McIntosh County
    The entire unit is within the Blackbeard Island National Wildlife 
Refuge. This unit includes the northeastern portion of the island 
beginning just east of the mouth of the confluence of McCloy Creek and 
Blackbeard Creek and continuing east and running south along the 
Atlantic Ocean shoreline for 1.4 km (.90 mi). It includes land from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
Unit GA-10: Sapelo Island. 85 ha (210 ac) in McIntosh County
    The entire unit is State-owned and within Sapelo Island. The unit 
extends south of Cabretta Tip approximately 0.2 km (0.13 mi) and north 
of Cabretta Tip 1.6 km (1.0 mi). It includes land from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur.
Unit GA-11: Wolf Island. 238 ha (590 ac) in McIntosh County
    The majority of the unit is within Wolf Island National Wildlife 
Refuge and private lands just north of the Refuge. This unit includes 
the southeastern tip of Queen's island adjacent to the Doboy Sound and 
includes the eastern shoreline of Wolf Island. It includes land from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
Unit GA-12: Egg Island Bar. 61 ha (151 ac) in McIntosh County
    This unit is State owned and includes all of Egg Island Bar to the 
MLLW.
Unit GA-13: Little St. Simon's Island. 609 ha (1505 ac) in Glynn County
    The majority of the unit is private land on Little St. Simon's 
Island. This unit includes the entire eastern coastline along Little 
St. Simon's Island. It begins 1.1 km (.70 mi) west of the northeast tip 
of Little St. Simon's Island and runs east and then south along the 
Atlantic Ocean shoreline stopping at the minor tributary (no name) on 
the southeast tip of Little St. Simon's Island north of Hampton Creek. 
It includes land from MLLW to where densely vegetated habitat, not used 
by the piping plover, begins and where the constituent elements no 
longer occur. All of Pelican Spit to MLLW is included when this sand 
bar is emergent.
Unit GA-14: Sea/St. Simon's Island. 191 ha (471 ac) in Glynn County
    The majority of the unit is private land on the south tip of Sea 
Island and on the east beach of St. Simons Island. This unit extends 
north of Gould's Inlet (Sea Island) 2.5 km (1.54 mi) starting just 
south of the groin and extends south of Gould's Inlet (St. Simons 
Island) 1.6 km (1.0 mi). It includes land from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit GA-15: Jekyll Island. 49 ha (121 ac) in Glynn County
    The majority of the unit is within State lands on Jekyll Island. 
This unit includes the southern region of Jekyll Island beginning at 
the mouth of Beach Creek, running towards the tip of Jekyll Island and 
includes the shoreline running north along the Atlantic Ocean shoreline 
1.9 km (1.20 mi) from the southern tip of Jekyll Island. It includes 
land from MLLW to where densely vegetated habitat, not used by the 
piping

[[Page 36100]]

plover, begins and where the constituent elements no longer occur.
Unit GA-16: Cumberland Island. 1454 ha (3591 ac) in Camden County
    The majority of the unit is along Cumberland Island Wilderness Area 
and Cumberland Island National Seashore. This unit includes the 
majority of the eastern Atlantic Ocean shoreline of Cumberland Island. 
It begins .50 km (.31 mi) north of the inlet at Long Point, continues 
south along the Atlantic Ocean shoreline stopping 1.8 km (1.1 mi) west 
of the southern tip of Cumberland Island National Seashore. It includes 
land from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.

BILLING CODE 4310-55-P

[[Page 36101]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.009


[[Page 36102]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.010


[[Page 36103]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.011


[[Page 36104]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.012

BILLING CODE 4310-55-C

[[Page 36105]]

    Florida (Maps were digitized using 1994-95 DOQQs)
Unit FL-1: Big Lagoon. 8 ha (19 ac) in Escambia County
    The majority of the unit is within Big Lagoon State Recreation 
Area. This unit includes the peninsula and emerging sand and mudflats 
between 0.33 km (0.21 mi) west of the lookout tower along the shoreline 
and 0.24 km (0.15 mi) east of the lookout tower along the shoreline. 
Land along the shoreline from MLLW to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur. All emerging sandbars to MLLW are included.
Unit FL-2: Big Sabine. 182 ha (450 ac) in Escambia County
    The majority of the unit is owned by the University of West 
Florida. This unit includes areas adjacent to Santa Rosa Sound of Big 
Sabine Point and adjacent embayment between 8.0 km (5.0 mi) and 11.6 
(7.2 mi) east of the Bob Sike's Bridge. It begins 0.10 km (.06 mi) 
north of SR 399 to MLLW on the Santa Rosa Sound.
Unit FL-3: Navarre Beach. 48 ha (118 ac) in Escambia and Santa Rosa 
Counties
    The majority of the unit is owned by Eglin Air Force Base and Santa 
Rosa Island Authority. This unit includes lands on Santa Rosa Island 
Sound side, between 0.09 and 0.76 mi east of the eastern end of SR 399 
to MLLW on Santa Rosa Sound side.
Unit FL-5: Shell/Crooked Islands. 1789 ha (4419 ac) in Bay County
    The majority of the unit is within Tyndall Air Force Base and St. 
Andrews State Recreation Area. This unit includes all of Shell Island, 
Crooked Island West, and Crooked Island East from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit FL-6: Upper St. Joe Peninsula. 182 ha (449 ac) in Gulf County
    The majority of the unit is within St. Joseph State Park. This unit 
includes the northern portion of the peninsula from the tip to 8.0 km 
(5.0 mi) south along the Gulf of Mexico from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit FL-7: Cape San Blas. 158 ha (390 ac) in Gulf County
    The entire unit is within Eglin Air Force Base. This unit includes 
the area known as the Cape between the eastern boundary of Eglin and 
mile marker 2.1, including the peninsula and all emerging sandbars. It 
includes land from MLLW to where densely vegetated habitat, not used by 
the piping plover, begins and where the constituent elements no longer 
occur.
Unit FL-8: St. Vincent Island. 146 ha (361 ac) in Franklin County
    The majority of the unit is within St. Vincent National Wildlife 
Refuge. This unit includes the western tip of St. Vincent Island that 
is adjacent to Indian Pass (0.80 km (0.50 mi) east of tip along Indian 
Pass, and 1.9 km (1.2 mi) from tip southeast along Gulf of Mexico). The 
unit also includes St. Vincent Point from the inlet at Sheepshead Bayou 
east 1.6 km (1.0 mi) to include emerging oysters shoals and sand bars 
and extends south 0.21 km (0.13 mi) of St. Vincent Point. The unit 
includes the southeastern tip of St. Vincent Island extending north 1.4 
km (0.90 mi) and south and west 2.1 km (1.3 mi). The western tip of 
Little St. George Island 0.80 km (0.50 mi) from West Pass is included 
(state owned lands). All sections of this unit include land from MLLW 
to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
Unit FL-9: East St. George Island. 1433 ha (3540 ac) in Franklin County
    The majority of the unit is within St. George State Park. This unit 
begins 5.3 km (3.3 mi) east of the bridge and extends to East Pass. 
Shell Point, Rattlesnake Cove, Goose Island, East Cove, Gap Point, and 
Marsh Island are included. This unit includes land from MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur on the Gulf of Mexico, 
East Pass and St. George Sound.
Unit FL-10: Yent Bayou. 153 ha (378 ac) in Franklin County
    The majority of the unit is State owned. This unit is adjacent to 
the area known as Royal Bluff. It includes the St. George Sound 
shoreline between 5.9 km (3.7 mi) and 9.5 km (5.9mi) east of SR 65. It 
includes from MLLW to where densely vegetated habitat or developed 
structures such as SR 65, not used by the piping plover, begin and 
where the constituent elements no longer occur.
Unit FL-11: Carabelle Beach. 56 ha (139 ac) in Franklin County
    The area within this unit is privately owned. This unit is the 
peninsula created by Boggy Jordan Bayou. It includes St. George Sound 
shoreline (south of US 98) 1.6 km (1.0 mi) southwest along US 98 from 
the Carrabelle River Bridge and extends 1.9 km (1.2 mi) east along the 
St. George Sound shoreline. It includes from MLLW to where densely 
vegetated habitat or developed structures such as US 98, not used by 
the piping plover, begin and where the constituent elements no longer 
occur.
Unit FL-12: Lanark Reef. 260 ha (643 ac) in Franklin County
    The entire unit is State owned. This unit includes the entire 
island and emerging sandbars to MLLW.
Unit FL-13: Phipps Preserve. 42 ha (104 ac) in Franklin County
    This unit includes all of Phipps Preserve (owned by The Nature 
Conservancy) and any emerging sandbars from MLLW to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit FL-14: Hagens Cove. 486 ha (1200 ac) in Taylor County
    The majority of the unit is within Big Bend Wildlife Management 
Area. This unit includes all of Hagens Cove and extends from MLLW on 
north side of Sponge Point to MLLW on south side of Piney Point. The 
eastern boundary of this unit ends (0.20 mi) west of SR 361. It 
includes from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.
Unit FL-15: Anclote Key and North Anclote Bar. 146 ha (360 ac) in Pasco 
and Pinellas Counties
    The majority of the unit is within Anclote Key State Preserve. This 
unit includes all of North Anclote Bar to the MLLW and the north, south 
and western sides of Anclote Key from MLLW to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur.
Unit FL-16: Three Rooker Bar Island. 76 ha (188 ac) in Pinellas County
    The majority of the unit is within Pinellas County Aquatic 
Preserve. This unit includes all the islands and emerging sandbars of 
this complex to MLLW.

[[Page 36106]]

Unit FL-17: North Honeymoon Island. 45 ha (112 ac) in Pinellas County
    The majority of the unit is within Honeymoon Island State 
Recreation Area. This unit includes from Pelican Cove north to the far 
northern tip of Honeymoon Island. It includes the western shoreline 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur or 
the MLLW on the eastern shoreline.
Unit FL-18: South Honeymoon Island. 28 ha (70 ac) in Pinellas County
    The majority of the unit is private land. This unit includes the 
southern end (southern-most 0.32 km (0.20 mi) on western side) of 
Honeymoon Island and encompasses the far southeastern tip and includes 
any emerging islands or sandbars to Hurricane Pass. It includes from 
MLLW to where densely vegetated habitat, not used by the piping plover, 
begins and where the constituent elements no longer occur.
Unit FL-19: Caladesi Island. 120 ha (296 ac) in Pinellas County
    The majority of the unit is within Caladesi Island State Park. This 
unit extends from Hurricane Pass to Dunedin Pass on the Gulf of Mexico 
side. It includes from MLLW to where densely vegetated habitat, not 
used by the piping plover, begins and where the constituent elements no 
longer occur.
Unit FL-20: Shell Key and Mullet Key. 190 ha (470 ac) in Pinellas 
County
    The majority of the unit is within Fort Desoto Park. This unit 
includes the Shell Key island complex. It also includes the northwest 
portion of Mullet Key including the western shorelines from Bunces Pass 
extending south, stopping 1.4 km (.86 mi) north of Ft. Desoto County 
Park pier. It includes from MLLW to where densely vegetated habitat or 
developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.
Unit FL-21: Egmont Key. 153 ha (377 ac) Hillsborough County
    The majority of the unit is within Egmont Key National Wildlife 
Refuge. This unit includes the entire island to MLLW.
Unit FL-22: Cayo Costa. 175 ha (432 ac) in Lee County
    The majority of the unit, including its northern and southern 
boundaries, is within Cayo Costa State Park, and nearly all of the 
remaining area is in the Cayo Costa Florida Conservation and Recreation 
Lands (CARL) acquisition project. This unit begins at the northern 
limit of sandy beaches at the northern end of the island, extends 
through Murdock Point, which at present has a sandbar and lagoon 
system, and ends at the former entrance to Murdock Bayou. It includes 
land from MLLW to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur.
Unit FL-23: North Captiva Island. 36 ha (88 ac) in Lee County
    The unit is within the Cayo Costa CARL land purchase project. This 
unit includes the western shoreline extending from 0.80 km (0.50 mi) 
south of Captiva Pass to approximately Foster Bay. It includes land 
from MLLW to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur.
Unit FL-25: Bunche Beach. 187 ha (461 ac) in Lee County
    This unit is mostly within a CARL Estero Bay acquisition project. 
Bunche Beach (also spelled Bunch) lies along San Carlos Bay, on the 
mainland between Sanibel Island and Estero Island (Fort Myers Beach), 
extending east from the Sanibel Causeway past the end of John Morris 
Road to a canal serving a residential subdivision. The unit also 
includes the western tip of Estero Island (Bodwitch Point, also spelled 
Bowditch Point), including Bowditch Regional Park, operated by Lee 
County and, on the southwest side of the island facing the Gulf, the 
beach south nearly to the northwesterly intersection of Estero 
Boulevard and Carlos Circle. It includes land from MLLW to where 
densely vegetated habitat or developed structures, not used by the 
piping plover, begin and where the constituent elements no longer occur 
or, along the developed portion of Estero Island.
Unit FL-26: Estero Island. 86 ha (211 ac) in Lee County
    The majority of the unit is privately owned. The unit consists of 
approximately the southern third of the island's Gulf-facing shoreline 
starting near Avenida Pescadora to near Redfish Road. The unit excludes 
south-facing shoreline at the south end of the island that faces Big 
Carlos Pass rather than the Gulf. It includes land from MLLW to where 
densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
Unit FL-27: Marco Island. 245 ha (606 ac) in Collier County
    Most of the unit is at the Tigertail Beach County Park. The unit's 
northern border is on the north side of Big Marco Pass, including 
Coconut Island and all emerging sand bars. On the south side of Big 
Marco Pass, the boundary starts at the north boundary of Tigertail 
Beach County Park and extends to just south of the fourth condominium 
tower south of the County Park. The placement of the southern boundary 
assures that the unit includes all of Sand Dollar Island, the 
changeable sandbar off Tigertail Beach. The western boundary includes 
all the sand bars in Big Marco Pass but excludes Hideaway Beach. It 
includes land from MLLW to where densely vegetated habitat (including 
grass or lawns) or developed structures, not used by the piping plover, 
begin and where the constituent elements no longer occur.
Unit FL-28: Marquesas Keys. 2937 ha (7256 ac) in Monroe County
    The unit comprises the roughly circular atoll that encloses Mooney 
Harbor, including Gull Keys and Mooney Harbor Key. The entire unit is 
within Key West National Wildlife Refuge. It includes land from MLLW to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur.
Unit FL-29: Boca Grande/Woman/Ballast Keys. 56 ha (138 ac) in Monroe 
County
    These Keys are east of the Marquesas Keys and west of Key West. 
Boca Grande and Woman Keys are within Key West National Wildlife 
Refuge. Ballast Key is privately owned. This unit consists only of 
sandy beaches and flats between the MLLW and to where densely vegetated 
habitat or developed structures, not used by the piping plover, begin 
and where the constituent elements no longer occur.
Unit FL-30: Bahia Honda/Ohio Keys. 372 ha (918 ac) in Monroe County
    This unit comprises Bahia Honda Key (including a small island off 
its southwest shore), which is almost entirely owned by Bahia Honda 
State Park, plus Ohio Key, which is privately owned. It includes land 
from MLLW to where densely vegetated habitat (including grass or lawns) 
or developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.

[[Page 36107]]

Unit FL-31: Lower Matecumbe Key. 19 ha (48 ac) in Monroe County
    Part of the unit is at Anne's Beach park, an Islamorada village 
park. The remaining parts are at Sunset Drive (Lower Matecumbe Beach) 
and at Costa Bravo Drive (Port Antiqua Homeowners Beach) on the Florida 
Bay side of the island. It includes land from MLLW to where densely 
vegetated habitat (including grass or lawns) or developed structures, 
not used by the piping plover, begin and where the constituent elements 
no longer occur.
Unit FL-32: Sandy Key/Carl Ross Key. 67 ha (165 ac) in Monroe County
    This unit consists of two adjoining islands in Florida Bay, roughly 
south of Flamingo in Everglades National Park. The entire area is owned 
and managed by the National Park Service. It includes land from MLLW to 
where densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
Unit FL-33: St. Lucie Inlet. 114 ha (282 ac) in Martin County
    The unit includes a small area south of the jetty on the north 
shore of St. Lucie Inlet, from the jetty west 0.42 km (0.26 mi). While 
the two sides of the inlet are privately owned, the great majority of 
the unit is on public land in the Saint Lucie Inlet State Preserve, 
administered by Jonathan Dickinson State Park. It begins on the sandy 
shoreline south of Saint Lucie Inlet and extends along the Atlantic 
Ocean shoreline 2.6 km (1.6 mi). It includes land from MLLW to where 
densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur. The unit does not include 
sandbars within the inlet.
Unit FL-34: Ponce de Leon Inlet. 68 ha (168 ac) in Volusia County
    The majority of the unit is within Smyrna Dunes Park and Lighthouse 
Point Park. This unit includes shoreline extending from the jetty north 
of Ponce de Leon Inlet west to the Halifax River and Inlet junction. It 
includes shoreline south of Ponce de Leon Inlet from the inlet and 
Halifax River junction, extending east and south along the Atlantic 
Ocean shoreline 1.2 km (.70 mi). It includes land from MLLW to where 
densely vegetated habitat (including grass or lawns) or developed 
structures, not used by the piping plover, begin and where the 
constituent elements no longer occur.
Unit FL-35: Nassau Sound-Huguenot. 950 ha (2347 ac) in Duval County
    The majority of the unit is within Big Talbot Island State Park, 
Little Talbot Island State Park, and the Timucuan Ecological and 
Historical Preserve. This unit includes all emergent shoals and 
shoreline east of Nassau River bridge and extends to the inlet of the 
St. John's River. Amelia Island and the northern 2.7 km (1.7 mi) 
shoreline along Talbot Island are not included. It includes land from 
MLLW to where densely vegetated habitat (including grass or lawns) or 
developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur.
Unit FL-36: Tiger Islands. 53 ha (130 ac) in Nassau County
    This unit is privately owned. This unit extends from the mouth of 
Tiger Creek and runs north along Tiger Island 0.8 km (0.5 mi) and south 
along Little Tiger Island 1.4 km (0.9 mi). It includes land from MLLW 
to where densely vegetated habitat (including grass or lawns) or 
developed structures, not used by the piping plover, begin and where 
the constituent elements no longer occur. Emerging sandbars to MLLW are 
also included.
BILLING CODE 4310-55-P

[[Page 36108]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.013


[[Page 36109]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.014


[[Page 36110]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.015


[[Page 36111]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.016


[[Page 36112]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.017


[[Page 36113]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.018


[[Page 36114]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.019


[[Page 36115]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.020


[[Page 36116]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.021


[[Page 36117]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.022


[[Page 36118]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.023


[[Page 36119]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.024


[[Page 36120]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.025


[[Page 36121]]


    Alabama (Maps were digitized using 1992 DOQQs)
Unit AL-1: Isle Aux Herbes. 227 ha (561 ac) in Mobile County
    This unit includes the entire Isle Aux Herbes island where primary 
constituent elements occur to MLLW and is State-owned.
Unit AL-2: Dauphin, Little Dauphin, and Pelican Islands. 880 ha (2,174 
ac) in Mobile County
    This unit includes all of Dauphin Island where primary constituent 
elements occur from St. Stephens Street approximately 17.6 km (10.9 mi) 
west to the western tip of the island to MLLW and all of Little Dauphin 
and Pelican Islands to MLLW. The area is mostly privately owned but 
includes State and Federal lands.
Unit AL-3: Fort Morgan. 67 ha (166 ac) in Baldwin County
    This area includes Mobile Bay and Gulf of Mexico shorelines within 
Bon Secour National Wildlife Refuge, Fort Morgan Unit. This unit 
extends from the west side of the pier on the northwest point of the 
peninsula, following the shoreline approximately 2.8 km (1.74 mi) 
southwest around the tip of the peninsula, then east to the terminus of 
the beach access road and is bounded on the seaward side by MLLW and on 
the landward side to where densely vegetated habitat, not used by the 
piping plover, begins and where the constituent elements no longer 
occur. The area is State-owned but is leased by the Federal Government.


[[Page 36122]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.026

BILLING CODE 4310-55-C

[[Page 36123]]

    Mississippi (Maps were digitized using 1992 and 1997 DOQQs)
Unit MS-1: Lakeshore through Bay St. Louis. 41 ha (101 ac) in Hancock 
County
    This unit extends from the north side of Bryan Bayou outlet and 
includes the shore of the Mississippi Sound following the shoreline 
northeast approximately 15.0 km (9.3 mi) and ending at the southeast 
side of the Bay Waveland Yacht Club. The landward boundary of this unit 
follows the Gulf side of South and North Beach Boulevard and the 
seaward boundary is MLLW. The shoreline of this unit is privately 
owned.
Unit MS-2: Henderson Point. 34 ha (84 ac) in Harrison County
    This unit extends from 0.2 km (0.12 mi) west of the intersection of 
3rd Avenue and Front Street and includes the shore of the Mississippi 
Sound following the shoreline northeast approximately 4.4 km (2.7 mi) 
to the west side of Pass Christian Harbor. The landward boundary of 
this unit follows the Gulf side of U.S. Highway 90 and the seaward 
boundary is MLLW. The shoreline of this unit is privately owned.
Unit MS-3: Pass Christian. 77 ha (190 ac) in Harrison County
    This unit extends from the east side of Pass Christian Harbor and 
includes the shore of the Mississippi Sound following the shoreline 
northeast approximately 10.5 km (6.5 mi) to the west side of Long Beach 
Pier and Harbor. The landward boundary of this unit follows the Gulf 
side of U.S. Highway 90 and the seaward boundary is MLLW. The shoreline 
of this unit is privately owned.
Unit MS-4: Long Beach. 38 ha (94 ac) in Harrison County
    This unit extends from the east side of Long Beach Pier and Harbor 
and includes the shore of the Mississippi Sound following the shoreline 
northeast approximately 4.4 km (2.7 mi) to the west side of Gulfport 
Harbor. The landward boundary of this unit follows the Gulf side of 
U.S. Highway 90 and the seaward boundary is MLLW. The shoreline of this 
unit is privately owned.
Unit MS-5: Gulfport. 39 ha (96 ac) in Harrison County
    This unit extends from the east side of Gulfport Harbor and 
includes the shore of the Mississippi Sound following the shoreline 
northeast approximately 4.8 km (3.0 mi) to the west side of the groin 
at the southern terminus of Courthouse Road, Mississippi City, MS. The 
landward boundary of this unit follows the Gulf side of U.S. Highway 90 
and the seaward boundary is MLLW. The shoreline of this unit is 
privately owned.
Unit MS-6: Mississippi City. 62 ha (153 ac) in Harrison County
    This unit extends from the east side of the groin at the southern 
terminus of Courthouse Road, Mississippi City, MS, and includes the 
shore of the Mississippi Sound following the shoreline northeast 
approximately 7.9 km (4.9 mi) to the west side of President Casino. The 
landward boundary of this unit follows the Gulf side of U.S. Highway 90 
and the seaward boundary is MLLW. The shoreline of this unit is 
privately owned.
Unit MS-10: Ocean Springs West. 11 ha (27 ac) in Jackson County
    This unit extends from U.S. 90 and includes the shore of Biloxi Bay 
following the shoreline southeast approximately 1.9 km (1.2 mi) to the 
Ocean Springs Harbor inlet. The landward boundary of this unit follows 
the Bay side of Front Beach Drive and the seaward boundary is MLLW. The 
shoreline of this unit is privately owned.
Unit MS-11: Ocean Springs East. 7 ha (17 ac) in Jackson County
    This unit extends from the east side of Weeks Bayou and includes 
the shore of Biloxi Bay following the shoreline southeast approximately 
1.8 km (1.1 mi) to Halstead Bayou. The landward boundary of this unit 
follows the Bay side of East Beach Drive and the seaward boundary is 
MLLW. The shoreline of this unit is privately owned.
Unit MS-12: Deer Island. 194 ha (479 ac) in Harrison County
    This unit includes all of Deer Island, where primary constituent 
elements occur to the MLWW. Deer Island is privately owned.
Unit MS-13: Round Island. 27 ha (67 ac) in Jackson County
    This unit includes all of Round Island to the MLWW and is privately 
owned
Unit MS-14: Mississippi Barrier Islands. 3,168 ha (7,828 ac) in 
Harrison and Jackson Counties.
    This unit includes all of Cat, East and West Ship, Horn, Spoil, and 
Petit Bois Islands where primary constituent elements occur to MLLW. 
Cat Island is privately owned, and the remaining islands are part of 
the Gulf Islands National Seashore.
Unit MS-15: North and South Rigolets. 159 ha (393 ac) in Jackson 
County, MS, and 12 ha (30 ac) in Mobile County, AL
    This unit extends from the southwestern tip of South Rigolets 
Island and includes the shore of Point Aux Chenes Bay, the Mississippi 
Sound, and Grand Bay following the shoreline east around the western 
tip, then north to the south side of South Rigolets Bayou; then from 
the north side of South Rigolets Bayou (the southeastern corner of 
North Rigolets Island) north to the northeastern most point of North 
Rigolets Island. This shoreline is bounded on the seaward side by MLLW 
and on the landward side to where densely vegetated habitat, not used 
by the piping plover, begins and where the constituent elements no 
longer occur. Approximately 4.4 km (2.7 mi) are in Mississippi and 2.9 
km (1.8 mi) are in Alabama. Almost half the Mississippi shoreline 
length is in the Grand Bay National Wildlife Refuge.

BILLING CODE 4310-55-P

[[Page 36124]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.027


[[Page 36125]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.028


[[Page 36126]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.029

BILLING CODE 4310-55-C

[[Page 36127]]

    Louisiana (Maps were digitized using 1998 DOQQs)
Unit LA-1: Texas/Louisiana border to Cheniere au Tigre. 2,650 ha (6,548 
ac) in Cameron and Vermilion Parishes
    This unit extends from the east side of Sabine Pass (Texas/
Louisiana border) and includes the shore of the Gulf of Mexico from the 
MLLW following the shoreline east 25.7 km (16.0 mi) to the west end of 
Constance Beach [approximately 2 km (1.2 mi) east of the intersection 
of Parish Road 528 and the beach]; it extends from the east end of the 
town of Holly Beach [0.25 km (0.16 mi) east of the intersection of 
Baritarick Boulevard and the beach] following the shoreline 
approximately 97 km (60.3 mi) east to the eastern boundary line of 
Rockefeller Wildlife Refuge [3.4 km (2.1 mi) east of Rollover Bayou]; 
and it extends from the east side of Freshwater Bayou Canal following 
the shoreline east for approximately 15 km (9.3 mi) to 1.3 km (0.81 mi) 
east of where the boundary of Paul J. Rainey Wildlife Sanctuary 
(National Audubon Society) meets the shoreline. All three sections of 
this unit include the land from the seaward boundary of MLLW to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur. The shoreline in this 
unit is both state and privately owned.
Unit LA-2: Atchafalaya River Delta. 921 ha (2,276 ac) in St. Mary 
Parish, LA
    This unit is located in the eastern portion of the State-owned 
Atchafalaya Delta Wildlife Management Area (WMA) and includes all 
exposed land and islands where primary constituent elements occur east 
and southeast of the main navigation channel of the Atchafalaya River 
to the MLLW. The islands located south and southeast of the deltaic 
splay, Donna, T-Pat, and Skimmer Islands and the un-named bird island, 
are also included in this unit. This unit includes the entire islands 
where primary constituent elements occur to the MLLW.
Unit LA-3: Point Au Fer Island. 195 ha (482 ac) in Terrebonne Parish.
    This unit includes the entire small island at the northwest tip of 
Point Au Fer Island to MLLW, then extends from the northwest tip of 
Point Au Fer Island following the shoreline southeast approximately 7.7 
km (4.8 mi) to the point where the un-named oil and gas canal extending 
southeast from Locust Bayou meets the shoreline [0.8 km (0.5 mi) 
southeast from Locust Bayou]. This shoreline is bounded on the seaward 
side by MLLW and on the landward side to where densely vegetated 
habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. This entire unit is privately 
owned.
Unit LA-4: Isles Dernieres. 795 ha (1,964 ac) in Terrebonne Parish
    This unit includes the State-owned Isles Dernieres chain, including 
Raccoon, Whiskey, Trinity and East Islands. This unit includes the 
entire islands where primary constituent elements occur to the MLLW.
Unit LA-5: Timbalier Island to East Grand Terre Island. 2,321 ha (5,735 
ac) in Terrebonne, Lafourche, Jefferson, and Plaquemines Parishes
    This unit includes: all of Timbalier Island where primary 
constituent elements occur to the MLLW, all of Belle Pass West [the 
``peninsula'' extending north/northwest approximately 4.8 km (3.0 mi) 
from the west side of Belle Pass] where primary constituent elements 
occur to MLLW; the Gulf shoreline extending approximately 11 km (6.8 
mi) east from the east side of Belle Pass bounded on the seaward side 
by MLLW and on the landward side to where densely vegetated habitat, 
not used by the piping plover, begins and where the constituent 
elements no longer occur; all of Elmers Island peninsula where primary 
constituent elements occur to MLLW and the Gulf shoreline from Elmers 
Island to approximately 0.9 km (0.56 mi) west of Bayou Thunder Von 
Tranc bounded on the seaward side by MLLW and on the landward side to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur; the Gulf shoreline 
of Grand Isle from the Gulf side of the hurricane protection levee to 
MLLW; and all of East Grand Terre Island where primary constituent 
elements occur to the MLLW.
Unit LA-6: Mississippi River Delta. 105 ha (259 ac) in Plaquemines 
Parish, LA
    This unit is part of the State-owned Pass a Loutre Wildlife 
Management Area and includes un-named sand (spoil) islands off South 
Pass of the Mississippi River near Port Eads. The entire islands to 
MLLW are included in this unit.
Unit LA-7: Breton Islands and Chandeleur Island Chain. 3,116 ha (7,700 
ac) in Plaquemines and St. Bernard Parishes, LA
    This unit includes Breton, Grand Gosier, and Curlew Islands and the 
Chandeleur Island chain. Those islands are part of the Breton National 
Wildlife Refuge or are state owned. The entire islands where primary 
constituent elements occur to MLLW are included in this unit.
BILLING CODE 4310-55-P

[[Page 36128]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.030


[[Page 36129]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.031


[[Page 36130]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.032


[[Page 36131]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.033

BILLING CODE 4310-55-C

[[Page 36132]]

    Texas (Maps were digitized using 1995 and 1996 DOQQs and National 
Oceanic and Atmospheric Administration's (NOAA) Medium Resolution 
Digital Vector Shoreline)
Unit TX-1: South Bay and Boca Chica. 2,920 ha ( 7,217 ac) in Cameron 
County
    The boundaries of the unit are: starting at the Loma Ochoa, 
following the Brownsville Ship Channel to the northeast out into the 
Gulf of Mexico to MLLW, then south along a line describing MLLW to the 
mouth of the Rio Grande, proceeding up the Rio Grande to Loma de Las 
Vacas, then from that point along a straight line north to Loma Ochoa. 
The unit does not include densely vegetated habitat within those 
boundaries. It includes wind tidal flats that are infrequently 
inundated by seasonal winds, and includes the tidal flats area known as 
South Bay. Beaches within the unit reach from the mouth of the Rio 
Grande northward to Brazos Santiago Pass, south of South Padre Island. 
The southern and western boundaries follow the change in habitat from 
wind tidal flat, preferred by the piping plover, to where densely 
vegetated habitat, not used by the piping plover, begins and where the 
constituent elements no longer occur. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur and include areas used 
for roosting by the piping plover. Portions of this unit are owned and 
managed by the Lower Rio Grande Valley National Wildlife Refuge, the 
South Bay Coastal Preserve, Boca Chica State Park, and private 
citizens.
Unit TX-2: Queen Isabella Causeway. 2 ha (6 ac) in Cameron County
    The area extends along the Laguna Madre west of the city of South 
Padre Island. The southern boundary is the Queen Isabella State Fishing 
Pier, and the northern boundary is at the shoreline due west of the end 
of Sunny Isles Street. The Queen Isabella causeway bisects this shore 
but is not included within critical habitat. The eastern boundary is 
where developed areas and/or dense vegetation begins, and the western 
boundary is MLLW. This unit contains lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
Unit TX-3: Padre Island. 10,924 ha (26,983 ac) in Cameron, Willacy, 
Kenedy, and Kleberg Counties
    This unit consists of four subunits:
    (1) The southern boundary of this subunit is at Andy Bowie County 
Park in South Padre Island, and the northern boundary is the south 
boundary of PAIS. The eastern boundary is MLLW in the Gulf of Mexico, 
and the western boundary is MLLW in the Laguna Madre. Areas of dense 
vegetation are not included in critical habitat. This subunit includes 
lands known as wind tidal flats that are infrequently inundated by 
seasonal winds.
    (2) The boundaries of this subunit extend from Rincon de la Soledad 
to the southeast point of Mesquite Rincon, continue from that point 
west to the Laguna Madre shoreline at its intersection with the King 
Ranch boundary, and from that point to Rincon de la Soledad. This 
subunit includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
    (3) This subunit is within the Laguna Madre and extends from the 
western boundary of PAIS to the Gulf Intercoastal Waterway. Its 
northern boundary is a line extending westward from the northwest 
corner of PAIS, and its southern boundary is a line extending westward 
from the southern boundary of PAIS. This subunit includes lands known 
as wind tidal flats that are infrequently inundated by seasonal winds.
    (4) This subunit extends along the gulf shore of Padre Island from 
the northern boundary of PIAS at the shore, north to the Nueces-Kleberg 
county line. The inland boundary is where dense vegetation begins, and 
the seaward boundary is MLLW. This subunit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
    Portions of this unit are owned and managed by TGLO, and private 
citizens with a significant portion being owned and managed by The 
Nature Conservancy on South Padre Island.
Unit TX-4: Lower Laguna Madre Mainland. 4,980 ha (12,307 ac) in Cameron 
and Willacy Counties
    The southern boundary is an east-west line at the northern tip of 
Barclay Island, and the southern boundary is an east-west line 0.9 km 
(0.5 mi) south of the boundary of the City of Port Mansfield; the 
western boundary is the line where dense vegetation begins, and the 
eastern boundary is the Gulf Intercoastal Waterway. The unit includes 
bayside flats that are exposed during low tide regimes and wind tidal 
flats that are infrequently inundated by seasonal winds. Portions of 
this unit are within the Laguna Atascosa National Wildlife Refuge, are 
TGLO-owned, or are privately owned. Beaches and interior wetlands may 
or may not be used each year because of varying water levels, storm 
events, or changes in beach characteristics and tidal regime. Water 
stages vary in this area with meteorological conditions. The upland 
areas extend to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur and 
include upland areas used for roosting by the piping plover.
Unit TX-5: Upper Laguna Madre. 436 ha (1,076 ac) in Kleberg County
    The southern boundary is the northern boundary of PAIS, and the 
northern boundary is the Kleberg/Nueces County line. The eastern 
boundary is the line where dense vegetation begins, and the western 
boundary is MLLW. This unit includes a series of small flats along the 
bayside of Padre Island in the Upper Laguna Madre. It includes wind 
tidal flats and sparsely-vegtated upland areas used for roosting by the 
piping plover. These boundaries receive heavy use by large numbers of 
shorebirds, including piping plovers. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur, and include upland 
areas used for roosting by the piping plover.
Unit TX-6: Mollie Beattie Coastal Habitat. 241 ha (596 ac) in Nueces 
County
    This unit will be described as two subunits:
    (1) Subunit is bounded on the north by Beach Access Road 3, on the 
east by the inland boundary of critical habitat Unit TX-7, on the south 
by Zahn road, and on the west by Zahn Road.
    (2) The subunit is bounded on the north by Corpus Christi Pass, on 
the east by US 361, on the south by the north side of Packery Channel, 
and on the west by the Gulf Intercoastal Watersay.
    Some of the uplands are privately owned and the remaining are owned 
and managed by the TGLO. This unit includes two hurricane washover 
passes known as Newport and Corpus Christi Passes, and wind tidal flats 
that are infrequently inundated by seasonal winds. The upland areas 
extend to where densely vegetated habitat, not used by the piping 
plover, begins and where the constituent elements no longer occur and 
include upland areas used for roosting by the piping plover.
Unit TX-7: Newport Pass/Corpus Christi Pass Beach. 42 ha (104 ac) in 
Nueces County
    This unit is along a stretch of Gulf beach 8.5 km (5.3 mi) long. It 
is

[[Page 36133]]

bounded on the north by Fish Pass, on the east by MLLW, on the south by 
St. Bartholomew Avenue, and on the west by a line marking the beginning 
of dense vegetation. Portions of the unit are managed by the Texas 
Parks and Wildlife Department as part of Mustang Island State Park. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-8: Mustang Island Beach. 97 ha (239 ac) in Nueces County
    This is a stretch of Gulf beach extending from Fish Pass to the 
Horace Caldwell Pier on Holiday Beach within the City of Port Aransas, 
TX. The landward boundary is beginning of dense vegetation, and the 
gulf-ward boundary is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
Unit TX-9: Fish Pass Lagoons. 130 ha (323 ac) in Nueces County
    This unit encompasses flats facing Corpus Christi Bay that extend 
1.0 km (0.6 mi) on either side of Fish Pass. The inland boundary is the 
line indicating beginning of dense vegetation, and the bayside boundary 
is MLLW. It includes interior lagoons and wind tidal flats that are 
infrequently inundated by seasonal winds. This unit includes upland 
areas used for roosting by the piping plover.
Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats. 87 ha 
(216 ac) in Nueces County
    This unit encompasses Shamrock Island, an unnamed small sand flat 
to the north of Wilson's Cut, and a lagoon complex that extends 3.5 km 
(2.2 mi) to the southwest of Wilson's Cut. Critical habitat includes 
land to the line marking the beginning of dense vegetation down to 
MLLW. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-11: Blind Oso. 2 ha (5 ac) in Nueces County
    This unit is the flats of the Blind Oso, part of Oso Bay, from Hans 
and Pat Suter Wildlife Refuge (owned and managed by the City of Corpus 
Christi) northeast to Corpus Christi Bay and then southeast along the 
edge of Texas A&M University--Corpus Christi. The landward boundaries 
extend to where densely vegetated habitat, not used by the piping 
plover, begins, and extends out from the landward boundaries to MLLW. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-12: Adjacent to Naval Air Station-Corpus Christi. 2 ha (6 ac) 
in Nueces County
    This unit is along the shore of Oso Bay on flats bordered by Naval 
Air Station-Corpus Christi and Texas Spur 3 to a point 2.5 km (1.5 mi) 
south of the bridge between Ward Island and the Naval Air Station. The 
landward boundary is the line where dense vegetation begins, and the 
boundary in the Bay is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
Unit TX-13: Sunset Lake. 176 ha (435 ac) in San Patricio County
    This unit is triangle shaped, with State Highway 181 as the 
northwest boundary, and the limits of the City of Portland as the 
northeast boundary. The shore on Corpus Christi Bay is the third side 
of the triangle, with the actual boundary being MLLW off this shore. 
This unit is a large basin with a series of tidal ponds, sand spits and 
wind tidal flats. This unit is owned and managed by the City of 
Portland within a system of city parks. Some of the described area 
falls within the jurisdiction of the TGLO. It includes two city park 
units referred to as Indian Point and Sunset Lake. Much of the unit is 
a recent acquisition by the city, and management considerations for the 
park include the area's importance as a site for wintering and resident 
shorebirds. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-14: East Flats. 194 ha (481 ac) in Nueces County
    This unit is bordered on the north by dredge placement areas 
bordering the Corpus Christi Ship Channel, on the west by MLLW in 
Corpus Christi Bay, on the east by the limits of the City of Port 
Aransas, and on the south by an east-west line at the sourthern-most 
point of Pelone Island. It is also bisected by a navigation channel, 
which is not included in the critical habitat. A portion of this unit 
at the west end falls within State-owned (TGLO) intertidal lands. The 
remainder of the unit is privately owned. The upland areas extend to 
where densely vegetated habitat, not used by the piping plover, begins 
and where the constituent elements no longer occur, including upland 
areas used for roosting by the piping plover. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
Unit TX-15: North Pass. 447 ha (1,106 ac) in Aransas County
    The unit is bounded on north by North Pass, on the northwest by the 
line indicating MLLW, on the southwest by the northeast side of Lydia 
Ann Island, on the south by a line running due east from the northeast 
side of Lydia Ann Island, and on the southeast by the landward boundary 
of Unit. This unit is a remnant of a hurricane washover on the 
privately owned San Jose Island. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur, including upland areas 
used for roosting by the piping plover. This unit includes lands known 
as wind tidal flats that are infrequently inundated by seasonal winds.
Unit TX-16: San Jose Beach. 187 ha (463 ac) in Aransas County
    This unit occupies a 33 km (20 mi) stretch of beach from the North 
Jetty of Aransas Pass at the south, to the confluence of Vinson Slough 
and Cedar Bayou at the north end of San Jose Island. The inland 
boundary is the line indicating the beginning of densely vegetated 
habitat, and the gulf-ward boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
Unit TX-17: Allyn's Bight. 5 ha (14 ac) in Aransas County
    This unit includes shoreline of San Jose Island on Aransas Bay from 
Allyn's Bight to Blind Pass, the channel between San Jose Island and 
Mud Island. The inland boundary is where the line of dense vegetation 
begins, and the bay-ward boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
Unit TX-18: Cedar Bayou/Vinson Slough. 3,051 ha (7,539 ac) in Aransas 
County
    Beginning at the confluence of Vinson Slough and Cedar Bayou, this 
unit's boundary follows the shore of Spalding Cove to Long Reef, then 
continues along a line extending (2.5 mi) southwest of Long Reef to the 
shore of San Jose Island, then along the shore of the island to the 
landward boundary of Unit TX-16. The unit boundaries extend landward to 
the line indicating the beginning of dense vegetation. This unit is a 
remnant of a hurricane washover area, and includes the highly dynamic 
area of Cedar Bayou, the pass that separates San Jose Island and 
Matagorda Island. This area includes a small

[[Page 36134]]

section of Matagorda Island National Wildlife Refuge with much of the 
remaining areas occurring on the privately owned island of San Jose. 
The upland areas extend to where densely vegetated habitat, not used by 
the piping plover, begins and where the constituent elements no longer 
occur and include upland areas used for roosting by the piping plover. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-19: Matagorda Island Beach. 395 ha (976 ac) in Calhoun County
    This stretch of beach along the Gulf of Mexico on Matagorda Island 
extends a distance of 60 km (36 mi) from Cedar Bayou on the southwest 
(where it abuts TX-18), to Pass Cavallo on the northeast. The inland 
boundary is the line indicating the beginning of dense vegetation, and 
the gulf-ward boundary is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds. The unit 
falls entirely within the boundary of the Matagorda Island National 
Wildlife Refuge.
Unit TX-20: Ayers Point. 397 ha (982 ac) in Calhoun County
    This unit is an unnamed lake on Matagorda Island between Shell Reef 
Bayou and Big Brundrett Lake, with San Antonio Bay to the north. The 
unit boundary extends landward from the lake to the line where dense 
vegetation begins and where the constituent elements no longer occur 
and includes upland areas used for roosting by the piping plover. This 
unit includes marsh and flats at Ayers Point on Matagorda Island 
National Wildlife Refuge. This unit includes lands known as wind tidal 
flats that are infrequently inundated by seasonal winds.
Unit TX-21: Panther Point to Pringle Lake. 863 ha (2,133 ac) in Calhoun 
County
    This unit represents a narrow band of bayside habitats on Matagorda 
Island from Panther Point to the northeast end of Pringle Lake. The 
landward boundary is the line indicating where dense vegetation begins, 
and the bayward boundary is MLLW. The unit is entirely within Matagorda 
Island National Wildlife Refuge. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
Unit TX-22: Decros Point. 450 ha (1,114 ac) at the Matagorda/Calhoun 
County Line
    This unit includes about 7.0 km (4.3 mi) of beach habitat around 
the island at the western tip of Matagorda Peninsula between the 
natural opening to Matagorda Bay and the Matagorda Ship Channel. The 
upland boundary is the line where dense vegetation begins, and the 
seaward boundary is MLLW. The adjacent upland is privately owned. This 
unit includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
Unit TX-23: West Matagorda Peninsula Beach. 311 ha (769 ac) of 
Shoreline in Matagorda County
    This unit extends 40 km (24 mi) along the Gulf of Mexico from the 
jetties at the Matagorda Ship Channel to the old Colorado River 
channel. The inland boundary is the line indicating where dense 
vegetation begins, and the gulfside boundary is MLLW. This unit 
includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
Unit TX-24: West Matagorda Bay/Western Peninsula Flats. 756 ha (1,868 
ac) in Matagorda County
    This unit extends along the bayside of Matagorda Peninsula from 7.5 
southwest of Greens Bayou to 2.5 km (1.6 mi) northwest of Greens Bayou. 
The landward boundary is the line indicating the beginning of dense 
vegetation, and the bayside boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
Unit TX-25: West Matagorda Bay/Eastern Peninsula Flats. 232 ha (575 ac) 
in Matagorda County
    This unit follows the bayside of Matagorda Peninsula from Maverick 
Slough southwest for 5 km (3 mi). The unit begins at Maverick Slough to 
the northeast and extends 5 km (3 mi) to the southwest, enclosing a 
series of flats along Matagorda Bay. The upland areas extend to where 
densely vegetated habitat, not used by the piping plover, begins and 
where the constituent elements no longer occur and include upland areas 
used for roosting by the piping plover. This unit includes lands known 
as wind tidal flats that are infrequently inundated by seasonal winds.
Unit TX-26: Colorado River Diversion Delta. 5 ha (13 ac) in Matagorda 
County
    This unit follows the shore of the extreme eastern northeast corner 
of West Matagorda Bay from Culver Cut to Dog Island Reef. The 
southeastern tidally emergent portion of Dog Island Reef is included 
within the unit. The landward boundary is the line indicating the 
beginning of dense vegetation, and the bayside boundary is MLLW. The 
upland areas includes upland areas used for roosting by the piping 
plover. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West. 295 (728 
ac) of shoreline in Matagorda County
    This unit extends along Gulf beach on the Matagorda Peninsula from 
the mouth of the Colorado River northeast along the peninsula 23 km (14 
mi) to a point on the beach opposite Eidelbach Flats. The landward 
boundary is the line indicating the beginning of dense vegetation, and 
the gulfside boundary is MLLW. This unit includes lands known as wind 
tidal flats that are infrequently inundated by seasonal winds.
Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East. 129 ha 
(321 ac) in Matagorda County
    This unit extends along the Gulf beach on the northeast end of 
Matagorda Peninsula from a point 0.8 km (0.5 mi) southwest of FM 457 
southwest 10 km (6 mi.) to the southwest side of Brown Cedar Cut. This 
unit abuts with Unit TX-29 to the north. The landward boundary is the 
line indicating the beginning of dense vegetation, and the gulfside 
boundary is MLLW. This unit includes lands known as wind tidal flats 
that are infrequently inundated by seasonal winds.
Unit TX-29: Brown Cedar Cut. 119 ha (294 ac) in Matagorda County
    This unit extends 2 km (1.2 mi.) both southwest and northeast of 
the main channel of Brown Cedar Cut along the bayside of Matagorda 
Peninsula in East Matagorda Bay, and abuts unit TX-28 to the southeast. 
The landward boundary is the line indicating the beginning of dense 
vegetation, and the bayside boundary is MLLW. The eastern boundary of 
TX-29 follows the change in habitat from mud flats preferred by the 
piping plover, to slightly vegetated dune system adjacent to TX-28. 
This unit includes upland areas used for roosting by the piping plover. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.

[[Page 36135]]

Unit TX-30: Northeast Corner East Matagorda Bay. 120 ha (297 ac) in 
Matagorda County
    This unit is bounded on the north by the Gulf Intercoastal 
Waterway, on the east by the northeast limit of Matagorda bay up the 
line where dense vegetation begins, on the south by the boundary of 
Unit TX-28, and on the west by MLLW. It is a system of flats associated 
with tidal channels. This unit includes upland areas used for roosting 
by the piping plover and lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-31: San Bernard NWR Beach. 166 ha (410 ac) in Matagorda and 
Brazoria Counties
    This is a unit composed of Gulf beach, 8.0 km (5.0 mi), and extends 
from the mouth of the San Bernard River to a point along the beach 14.0 
km (8.7 mi) to the southwest. The landward boundary is the line 
indicating the beginning of dense vegetation, and the gulfside boundary 
is MLLW. This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.
Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers. 108 ha 
(269 ac) of shoreline in Brazoria County
    This unit is a segment of Gulf beach between the Brazos River and 
the San Bernard River. This unit borders an area known as Wolf Island. 
The landward boundary is the line indicating the beginning of dense 
vegetation, and the gulfside boundary is MLLW. This unit includes lands 
known as wind tidal flats that are infrequently inundated by seasonal 
winds.
Unit TX-33: Bryan Beach and Adjacent Beach. 157 ha (388 ac) in Brazoria 
County
    The boundaries enclose a length of Gulf beach between the mouth of 
the Brazos River and FM 1495. The landward boundary is the line 
indicating the beginning of dense vegetation, and the gulfside boundary 
is MLLW. A portion of this area is owned and managed by the Texas Parks 
and Wildlife Department. This unit includes lands known as wind tidal 
flats that are infrequently inundated by seasonal winds.
Unit TX-34: San Luis Pass. 110 ha (272 ac) near the Brazoria/Galveston 
County line
    This unit extends along the Gulf side of Galveston Island from San 
Luis Pass to the site of the former town of Red Fish Cove (USGS 
1:24,000 map, San Luis Pass, Texas; 1963, photorevision 1974). The 
landward boundary is the line indicating the beginning of dense 
vegetation, and the gulfside boundary is MLLW. Approximately 57 percent 
of the unit includes flats in the floodtide delta that are State-owned 
and managed by the TGLO. This unit includes lands known as wind tidal 
flats that are infrequently inundated by seasonal winds.
Unit TX-35: Big Reef. 47 ha (117 ac) in Galveston County
    This unit consists of beach and sand flats on the north, west, and 
east shore of Big Reef, down to MLLW. South Jetty is not included. The 
area is currently managed by the City of Galveston. This unit includes 
lands known as wind tidal flats that are infrequently inundated by 
seasonal winds.
Unit TX-36: Bolivar Flats. 160 ha (395 ac) in Galveston County
    This unit extends from the jetties on the southwest end of the 
Bolivar Peninsula to a point on the Gulf beach 1 km (0.6 mi) north of 
Beacon Bayou. It includes 5.0 km (3 mi) of Gulf shoreline. The landward 
boundary is the line indicating the beginning of dense vegetation, and 
the gulfside boundary is MLLW. The area is leased from TGLO by Houston 
Audubon Society and managed for its important avian resources. The 
upland areas are used for roosting by the piping plover. This unit 
includes lands known as wind tidal flats that are infrequently 
inundated by seasonal winds.
Unit TX-37: Rollover Pass. 6 ha (16 ac) in Galveston County
    This unit consists of Rollover Bay on the bayside of Bolivar 
Peninsula. The landward boundary is the line indicating the beginning 
of dense vegetation, and the bayside boundary is MLLW. It includes 
flats on State-owned land managed by the TGLO. This unit captures the 
intertidal complex of the bay, and is bounded by the towns of Gilchrist 
to the east and the Gulf beach of the Bolivar Peninsula to the south. 
This unit includes lands known as wind tidal flats that are 
infrequently inundated by seasonal winds.

BILLING CODE 4310-55-P

[[Page 36136]]

[GRAPHIC] [TIFF OMITTED] TR10JY01.034


[[Page 36137]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.035


[[Page 36138]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.036


[[Page 36139]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.037


[[Page 36140]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.038


[[Page 36141]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.039


[[Page 36142]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.040


[[Page 36143]]


[GRAPHIC] [TIFF OMITTED] TR10JY01.041

* * * * *

    Dated: June 28, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-16905 Filed 7-9-01; 8:45 am]
BILLING CODE 4310-15-C