[Federal Register Volume 67, Number 176 (Wednesday, September 11, 2002)]
[Rules and Regulations]
[Pages 57638-57717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21625]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Northern Great Plains Breeding Population of the Piping 
Plover; Final Rule

  Federal Register / Vol. 67, No. 176 / Wednesday, September 11, 2002 / 
Rules and Regulations  

[[Page 57638]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH96


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Northern Great Plains Breeding Population of 
the Piping Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the northern Great Plains breeding population of 
the piping plover (Charadrius melodus), pursuant to the Endangered 
Species Act of 1973, as amended. The designation includes 19 critical 
habitat units containing prairie alkali wetlands, inland and reservoir 
lakes, totaling approximately 183,422 acres (ac) (74,228.4 hectares 
(ha)) and portions of 4 rivers totaling approximately 1,207.5 river 
miles (rm) (1,943.3 kilometers (km)) in the States of Minnesota, 
Montana, Nebraska, North Dakota, and South Dakota.
    Critical habitat includes prairie alkali wetlands and surrounding 
shoreline, including 200 feet (ft) (61 meters (m)) of uplands above the 
high water mark; river channels and associated sandbars, and islands; 
reservoirs and their sparsely vegetated shorelines, peninsulas, and 
islands; and inland lakes and their sparsely vegetated shorelines and 
peninsulas. Section 7 of the Endangered Species Act requires Federal 
agencies to ensure that actions they authorize, fund, or carry out are 
not likely to destroy or adversely modify critical habitat. As required 
by section 4 of the Endangered Species Act, we considered economic and 
other relevant impacts before making a final decision on what areas to 
designate as critical habitat.

DATES: This designation becomes effective on October 11, 2002.

ADDRESSES: The complete administrative record for this rule, including 
comments and materials received, as well as the supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the South Dakota Ecological Services Field Office, U.S. Fish 
and Wildlife Service, 420 South Garfield Avenue, Suite 400, Pierre, SD 
57501.

FOR FURTHER INFORMATION CONTACT: Nell McPhillips, at the above address 
(telephone 605-224-8693, extension 32; facsimile 605-224-9974).

SUPPLEMENTARY INFORMATION:

Background

Description

    The piping plover (Charadrius melodus) is a small (approximately 
6.7 to 7.1 inches (17 to 18 centimeters) long and 1.5 to 2.2 ounces (43 
to 63 grams) in weight (Haig 1992)), migratory member of the shorebird 
family (Charadriidae). It is one of six species of belted plovers in 
North America. During the breeding season adults have single black 
bands across both the forehead and breast, orange legs and bill, and 
pale tan upper parts and are white below. The adults lose the black 
bands and their bill becomes grayish-black during the winter. The 
plumage of juveniles is similar to that of wintering adults.

Geographic Range

    The breeding range of the piping plover extends throughout the 
northern Great Plains, the Great Lakes, and the Atlantic Coast in the 
United States and Canada. Three breeding populations of piping plovers 
have been described--the northern Great Plains, Great Lakes population, 
and Atlantic Coast populations.
    Great Lakes piping plovers formerly nested throughout much of the 
Great Lakes region in the north-central United States and in south-
central Canada, but currently nest only in northern Michigan and at two 
sites in northern Wisconsin. On the Atlantic Coast, piping plovers nest 
from Newfoundland, southeastern Quebec, and New Brunswick to North 
Carolina. Sixty-eight percent of all Atlantic nesting pairs breed in 
Massachusetts, New York, New Jersey, and Virginia (Service 1999).
    The northern Great Plains population's breeding range includes 
southern Alberta, southern Saskatchewan, and southern Manitoba, south 
to eastern Montana, North Dakota, South Dakota, southeastern Colorado, 
Iowa, Nebraska, and east to Lake of the Woods in north-central 
Minnesota. Most of the United States' pairs are in the Dakotas, 
Nebraska, and Montana (Service 1994). Fewer birds nest in Minnesota, 
Iowa, and Colorado, with occasional nesting in Oklahoma and Kansas. 
This rule refers only to the United States' portion of the northern 
Great Plains population.
    Historic data on the distribution of northern Great Plains piping 
plovers are scarce, with regular surveying efforts beginning after 
1980. More recent breeding records exist for most North Dakota counties 
(Service and North Dakota Game and Fish Department 1997); Lake of the 
Woods County, in Minnesota (Service 2000b); counties along the Missouri 
River, as well as Codington, Day, and Miner Counties in South Dakota 
(South Dakota Ornithologists' Union 1991); and counties along the 
Missouri, Loup, Niobrara, Elkhorn, and Platte Rivers in Nebraska 
(Ridgeway 1874, Moser 1942, Heinemann 1944, Ducey 1983, Dinan et al. 
1993, Nebraska Game and Parks Commission 1995, Nebraska Game and Parks 
Commission 2001). Plovers were first reported in Montana in 1967 in 
Phillips County and were observed in Sheridan and Valley Counties 
during the 1970s (Carlson and Skaar 1976). Nesting was first observed 
in Colorado in 1949 and a few reports of non-nesting birds occurred 
during the 1950s and 1960s (Bailey and Niedrich 1965), but there are no 
reports of nesting between 1949 and 1989 (Colorado Department of 
Natural Resources 1994). In Iowa, nesting plovers were observed in 
Pottawattamie and Harrison Counties during the 1940s, 1950s, and 1960s 
(Stiles 1940, Brown 1971). Incidental records exist for Wyoming, as 
well as Eddy County, New Mexico, in 1964 (Bailey and Niedrich 1965). A 
record is reported for Douglas County, Kansas in 1909. (Ridgeway 1919).
    The current breeding range of the northern Great Plains population 
is similar to the previous records, with the following exceptions--
piping plovers have not been reported in Wyoming or New Mexico since 
their initial records, and since 1996, Kansas has reported nesting 
activity along the Kansas River due to newly available habitat after 
scouring flows in 1993 (Busby et al. 1997). Additionally, in 1987 and 
1988 piping plovers nested at Optima Reservoir, Oklahoma (these are the 
only known nesting records for Oklahoma) (Boyd 1991). In North Dakota, 
plovers nest at various prairie alkali wetlands in Benson, Burke, 
Burleigh, Divide, Eddy, Emmons, Kidder, Logan, McHenry, McIntosh, 
McLean, Mountrail, Pierce, Renville, Sheridan, Stutsman, Ward, and 
Williams Counties, as well as sandbars and reservoir shorelines along 
the Missouri River (Service and North Dakota Game and Fish Department 
1997, K. Kreil, Service, pers.com comm.). South Dakota nesting has 
generally been limited to the Missouri River, primarily below the 
Gavins Point and Fort Randall Dams and on Lake Oahe (C.D. Kruse, U.S. 
Army Corps of Engineers, pers.

[[Page 57639]]

comm.). Occasionally plovers have nested on Lake Sharpe (Missouri 
River), and have additionally been sighted on Lake Francis Case 
(Missouri River) during the nesting season but nesting has not been 
documented. In Colorado, nesting has been observed on various 
reservoirs of the Arkansas River during the 1990s (Plissner and Haig 
1997, Nelson unpubl. report). In Montana, plovers currently nest along 
the Missouri River, on Duck Creek Bay, Bear Creek Bay, Skunk Coulee, 
and the Big Dry Creek Arm of Fort Peck Reservoir, and alkali wetlands 
and reservoirs in Phillips and Sheridan Counties (G. Pavelka, U.S. Army 
Corps of Engineers, pers.com comm., H. Pac, Montana Fish, Wildlife, and 
Parks, pers.com comm.).
    In Nebraska, piping plovers can still be found on sandbars along 
the Niobrara, Loup, and Platte Rivers, but habitat has been reduced on 
the Platte River. Before Kingsley Dam became fully operational in 1941, 
Platte River sandbar habitat dynamics had already been affected by 
upstream impoundments and diversions (Peake et al. 1985). By 1938, 30 
percent of the in channel habitats were woody vegetated increasing to 
57 percent in 1957 and close to 70 percent in 1983 (Peake et al. 1985). 
Williams (1978) found channel widths also changed from wide-open 
channels to multiple narrow channels and attributed these changes to 
flow reductions from upstream dams and water withdrawals. These changes 
have resulted in degraded piping plover nesting habitat on the Central 
Platte with better conditions occurring on the Lower Platte (Ziewitz et 
al. 1992). Along the central reach of the Platte, this loss of habitat 
has resulted in most plovers nesting on sand and gravel mining spoil 
piles (Sidle and Kirsch 1993). However, since 1982 the Platte River 
Whooping Crane Maintenance Trust, Inc., has been reclaiming river 
habitat (sandbar restoration) on their property and on areas owned by 
the National Audubon Society, The Nature Conservancy, and numerous 
individual landowners (Platte River Whooping Crane Maintenance Trust 
2002). Most nesting on the Platte River currently occurs on the lower 
Platte, where encroachment is least advanced (Ziewitz et al. 1992). 
Lake McConaughy in Nebraska also supports nesting plovers on its sandy 
beaches (Peyton and Matteson 1999). In Iowa, Missouri River habitat has 
been lost due to channelization below Sioux City, leaving piping 
plovers to nest on industrial fly ash ponds in Woodbury and 
Pottawattamie Counties (D. Howell, Iowa Dept. of Natural Resources, 
pers.com comm.). Plovers continue to nest in low numbers at Lake of the 
Woods, Minnesota (Minnesota Department of Natural Resources 1999).

Population Status

    Historical piping plover population trend data are generally 
nonexistent. However, Audubon and Wilson described plovers as a common 
resident of the Atlantic coast during the 1800s (Bent 1929). On 
September 21, 1804, the Lewis and Clark expedition was present in the 
area of present day Lake Sharpe on the Missouri River, where William 
Clark wrote, ``* * * we observed an immense number of plover of 
Different kind Collecting and taking their flight southerly * * '' 
(Moulton 1987). By 1900, the piping plover had been greatly reduced by 
over-harvesting. With the Federal protection of the Migratory Bird 
Treaty Act, the plover recovered by the 1920s and was reported as 
common (Bent 1929). Since then, plover populations again declined 
throughout most of their range and have been extirpated from many 
States. Breeding surveys in the early 1980s reported 2,137 to 2,684 
adult plovers in the northern Great Plains/Prairie region, 28 adults in 
the Great Lakes region, and 1,370 to 1,435 adults along the Atlantic 
Coast (Haig and Oring 1985). In 1991 the first International Piping 
Plover Census was carried out, with 2,032 adult piping plovers observed 
in the United States' portion of the northern Great Plains (Haig and 
Plissner 1993). In 1996, during the second International Census, 1,599 
adult piping plovers were observed in the same area (Plissner and Haig 
1997; numbers revised S. Haig pers.com comm. 2002); a reduction of just 
more than 21 percent from 1991. Part of this reduction was likely an 
artifact of increased numbers of piping plovers nesting in Canada in 
1996, due to high water levels in the United States (Plissner and Haig 
1997). In 2001, during the third International Census, 1,981 adult 
piping plovers were observed in the same area (S. Haig pers.com comm. 
2002). Between 1991 and 2001 there was a reduction of 2.5 percent in 
the U.S. northern Great Plains population. Between 1996 and 2001 there 
was a 23.9 percent increase in the population. Again the fluctuations 
in numbers between 1996 and 2001 appear to reflect a relationship with 
the birds in prairie Canada, but this time the relationship was 
inverse. Prairie Canada birds may have temporarily dispersed to recent 
unusually good habitat conditions in the United States northern Great 
Plains--particularly on the Missouri River.
    Current estimates of piping plover survival rates are limited. Root 
et al. (1992) estimated a mean annual survival rate of 0.664 for adults 
in the northern Great Plains population from 1984 to 1990 using 
recapture and re-sighting data from plovers in North Dakota. Larson et 
al. (2000) reevaluated survival from this study, including some 
additional years of banding and resights. The new mean local annual 
survival rate was 0.737 for adults (Larson et al. 2000). Most plover 
mortality was thought to occur during migration or on wintering grounds 
(Root et al. 1992); however, a recent study on Padre Island, Texas, 
showed overwintering survival can be very high (Drake 1999).
    Ryan et al. (1993) developed a random population growth model using 
empirical, demographic data, which showed the northern Great Plains 
plover population was declining 7 percent annually. They also used the 
simulation model to predict reproductive and survival rates necessary 
to stabilize and increase the population. Ryan et al. (1993) stated 
that if adult (0.66) and immature (0.60) survival rates were held 
constant, a 31 percent increase, from 0.86 to 1.13 chicks fledged per 
pair, was needed to stabilize the population. Annual population 
increases of 1 and 2 percent required 1.16 and 1.19 chicks per pair, 
respectively. Such growth would result in the northern Great Plains 
population reaching the level needed for recovery and delisting from 
the Endangered Species Act in 53 and 30 years respectively. One- and 5-
year delays in the initiation of 1 percent population growth caused 13- 
and 67-year delays respectively in reaching recovery. Model (Ryan et 
al. 1993) results suggested that the northern Great Plains population 
is declining substantially. However, using more recent survival 
estimates (Larson et al. (2000)) in the random population growth model 
has shown that the feasibility of recovering the northern Great Plains 
population may be more likely than previously determined (Ryan et al. 
1993, Plissner and Haig 2000). Larson (Larson, University of Missouri-
Columbia pers.com comm.) recommends based on his research (Larson et al. 
2000) that reproductive rates 1.25 fledglings per pair per year is now 
necessary to stabilize the population.
    A population viability model, developed by Plissner and Haig 
(2000), used the metapopulation viability analysis package, VORTEX. 
Plissner and Haig (2000) found in the northern Great Plains and Great 
Lakes populations, if the adult and immature survival rates were held 
constant, it would require a 36 percent higher mean fecundity, or an 
increase from 1.25 to 1.7 chicks fledged per pair, to reach a 
significant

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probability of persisting for the next 100 years.

Ecology

    Piping plover breeding habitat consists of open, sparsely vegetated 
areas with alkali or unconsolidated substrates. Piping plovers 
primarily breed in four habitat types in the northern Great Plains--
alkali lakes and wetlands, inland lakes (Lake of the Woods), 
reservoirs, and rivers. Based on the first two International Piping 
Plover Censuses, most breeding occurs along alkali lakes and wetlands, 
with 59.6 percent and 78 percent of breeding adults observed on those 
sites in 1991 (Haig and Plissner 1993) and 1996 (Plissner and Haig 
1997), respectively. However, that percentage dropped to 34 percent in 
the 2001 International Census (S. Haig pers.com. 2002). For these 
alkali lakes and wetlands, nesting sites are generally wide, gravelly, 
salt-encrusted beaches with minimal vegetation (Prindiville, Gaines and 
Ryan 1988).
    Piping plovers use barren to sparsely vegetated islands, beaches, 
and peninsulas at inland lake habitats (Nordstrom and Ryan 1996), such 
as Lake of the Woods, Minnesota. Sandbars and reservoir shorelines with 
similar features are the preferred nesting habitats of piping plovers 
along riverine systems (Schwalbach 1988, Kruse 1993). In 1991, 
approximately 38 percent of the population was observed on reservoirs, 
river shores, and sandbars. In 1996, 15.1 percent was observed at those 
areas; this was a high-water year and much of the habitat along rivers 
was inundated, likely forcing birds to nest elsewhere. These data 
suggest that habitat use by piping plovers is dynamic and that the 
habitat necessary to support the northern Great Plains population is 
diverse.
    Although the preference of piping plovers for open areas has been 
repeatedly noted in the literature, quantitative data on habitat 
characteristics, evidence of habitat selection, and information on the 
relative quality of inland habitats remain scarce. A survey of the 
research literature suggests that this lack of quantitative and 
qualitative data is a result of the dynamic nature of the habitat, 
climate, and hydrologic cycles of the northern Great Plains. Several 
studies have suggested that beach width may affect habitat use by 
piping plovers breeding on inland lakes. Whyte (1985) recorded minimum 
nest-to-water distances of 131.2 ft (40 m) in Saskatchewan and 
suggested that beaches less than 65.6 to 98.4 ft wide (20 to 30 m wide) 
were not likely to be used by piping plovers. However, in Alberta, 
Weseloh and Weseloh (1983) calculated a mean beach width of only 38.4 
ft (11.7 m) at nest sites. However, they noted that these seemed to be 
the widest beaches available. Prindiville, Gaines, and Ryan (1988) 
reported mean beach width to be larger in occupied territories (x = 
108.3 ft (33 m)) than in unoccupied sites (x = 44.6 ft (13.6 m)) in 
North Dakota. It is important to note that piping plovers in the Great 
Lakes region have nested on beaches much narrower than those reported 
by the above authors; therefore, narrower beaches may still provide 
suitable nesting habitat and primary constituent elements (L. Wemmer, 
pers.com comm.). The amount and distribution of beach vegetation affect 
piping plover habitat selection and reproductive success. Prindiville, 
Gaines, and Ryan (1988) found no difference in vegetative cover between 
territories (x = 3.4 percent) and unoccupied sites (x = 3.8 percent). 
However, vegetation was more clumped in territories than in unoccupied 
sites. Furthermore, territories in which nests were successful had 
either less vegetation or more clumped vegetation than territories with 
unsuccessful nests (Prindiville 1986).
    Substrate composition also may affect habitat selection by piping 
plovers and influence nest success. Cairns (1977) found 31 of 38 nests 
in Nova Scotia on mixed sand and gravel and stated that those nests 
were less conspicuous than those on sand alone. Whyte (1985) reported 
that piping plovers were more likely to establish nests on gravel than 
was expected by chance alone. In North Dakota, gravel was generally 
more evenly distributed and in greater concentration on piping plover 
territories than at unoccupied sites (Prindiville 1986).
    Piping plovers nesting on the Missouri, Platte, Niobrara, Loup 
Rivers, and other rivers, use reservoir shorelines and large dry, 
barren sandbars in wide, open channel beds. Along these rivers, plovers 
often nest near endangered interior least terns (Sterna antillarum). 
Vegetative cover on nesting islands is usually less than 25 percent 
(Ziewitz et al. 1992). Twenty-eight Platte River sandbars, occupied by 
nesting piping plovers, averaged 938 ft (286 m) in length and 180 ft 
(55 m) in width (Faanes 1983). Vegetative cover on those sandbars 
averaged 25.4 percent. Armbruster (1986) estimated the optimum range 
for vegetative cover on nesting habitat from 0-10 percent, and 
Schwalbach (1988) found that 89 percent of the plovers nested in areas 
of less than 5 percent vegetative cover. On the Missouri River, 
Schwalbach (1988) found that the average vegetation height ranged from 
2 to 11 in (6 to 29 cm) and the majority of the plovers (63 percent) 
nested in areas where vegetation was less than 4 in (10 cm).
    Average elevation of nests (least terns and piping plovers) above 
river level ranges from 7.4 in (19 cm) below Gavins Point Dam to 12 in 
(30 cm) below Garrison Dam (Schwalbach 1988, Dirks 1990). Schwalbach 
(1988) and Ziewitz et al. (1992) suggested that birds select a higher 
nest site, away from the water's edge, when available. For nesting, 
piping plovers evidently seek habitats with wide horizontal visibility, 
protection from terrestrial predators, isolation from human 
disturbance, low likelihood of inundation, and nearby feeding habitat.
    Open, wet, sandy areas provide feeding habitat for plovers on river 
systems and throughout most of the species' nesting range. Piping 
plovers feed primarily on exposed substrates by pecking for 
invertebrates at or just below the surface (Cairns 1977, Whyte 1985). 
In Saskatchewan, Whyte (1985) noted that adults concentrated foraging 
efforts within 16.4 ft (5 m) of the water's edge. He found broods also 
fed most often near the shore, but their use of upland beach habitats 
was greater than that of adults. Cairns (1977) reported that chicks 
tended to feed on firmer sand at greater distances from the shoreline 
than adults. At Lake of the Woods, Minnesota, and on Long Island-
Chequamegon Point, Wisconsin, adult piping plovers seemed to prefer 
shoreline or beach pool edges (wet sand) over open beach (dry sand) as 
feeding sites although time spent foraging at these sites may be 
influenced by changing habitat conditions and prey availability (Wiens 
1986, S. Matteson, Wisconsin Department of Natural Resources, pers.com comm.). Studies suggest that forage areas include the nesting island 
itself, as well as adjacent sandbar flats (Cairns 1977, Whyte 1985, 
Corn and Armbruster 1993). Spring/fen areas on the peripheries of some 
alkali lakes also are important feeding sites for plover chicks 
(Rabenberg et al. 1993).
    Upland areas surrounding wetlands, such as the spring/fen areas, 
also have been noted in the scientific literature to be important to 
maximizing the effective period of time wetlands can provide critical 
functions (i.e., water quality, flood control, groundwater recharge, 
nutrient recycling, primary productivity, and wildlife habitat) within 
the agricultural landscape (Gleason and Eulis 1998). This is 
particularly important when considering wetlands within the 
agricultural landscape in the northern

[[Page 57641]]

Great Plains. In addition appropriate upland widths are based on 
several variables, including--existing wetland functions, values, and 
sensitivity to disturbance; land-use impacts; and desired upland 
functions (Castelle et al. 1992). Critical functions to consider for 
piping plovers nesting on wetlands in the northern Great Plains include 
water quality, invertebrate abundance, and the lifespan of the wetland. 
To maintain water quality and maximize the effective period of time the 
wetland maintains critical functions, available research suggests 
upland buffers of 100 to 300 ft (30.5 to 91.4 m) (Castelle et al. 1992, 
Lee et al. 1997, Gleason and Eulis 1998, D. Dewald pers.com comm. 2000).
    Conditions for nesting are highly variable in the Great Plains. 
Therefore, local population estimates may not always give an accurate 
description of the population as a whole, and success may depend on the 
availability of alternative habitat types (Plissner and Haig 1997). In 
addition to primary nesting habitat types, piping plovers also may use 
sand pits and ash ponds, which often mimic natural habitats (Service 
1988b, Corn and Ambruster 1993, Lackey 1994). These areas are only 
suitable for a limited period of time after their initial creation, as 
vegetation encroachment generally reduces habitat quality after a few 
years (Sidle and Kirsch 1993).
    Breeding site fidelity (rate at which adults return to the same 
breeding sites in subsequent years) for piping plovers ranged from 4.5 
percent in two studies combined in South Dakota (Schwalbach 1988, Dirks 
1990) to 87.5 percent in Lake of the Woods, Minnesota (Haig and Oring 
1987). Wiens (1986) found return patterns to specific breeding sites 
did not seem to be influenced by previous reproductive success. In 
Manitoba, Haig and Oring (1988) observed two patterns of return by 
adults--(1) those that hatched chicks the year before returned to the 
same breeding site but changed territories, and (2) adults that 
experienced nest failure the year before generally changed sites. 
Adults have been known to use breeding sites as far as 339.1 miles (mi) 
(546 km) apart in consecutive years (Haig 1987). The varying rates of 
site fidelity reported in these studies suggest that piping plovers 
need a variety of available nest sites. Sites used in one year may not 
be used in subsequent years; conversely, sites unoccupied by piping 
plovers may be used in the future.
    Similar observations of chick returns further show the need for 
many nest areas in the Great Plains. The percentage of observed chicks 
returning to natal sites has ranged from 4.7 percent in New York 
(Wilcox 1959) to 1.3 to 50 percent in South Dakota (Schwalbach et al. 
1993, Niver 2000) and 70 percent at Lake of the Woods, Minnesota (Haig 
and Oring 1987). Chick dispersal (movement from natal sites to first 
breeding site) is difficult to characterize and few banding studies 
have been carried out in the Great Plains. But, long-range dispersal 
distances (3.1 to 169.5 mi (5 to 273 km)) have been documented in 
piping plovers (Haig and Oring 1988) and similar distances were 
observed in two plovers on the Missouri River (R. Niver, Service, and 
C.D. Kruse, U.S. Army Corps of Engineers, pers.com comm.).
    The nesting season typically begins in late March to early April 
when plovers arrive on the breeding grounds. Breeding activities, 
including courtship flights, nest bowl scraping, territorial 
interactions, egg laying, incubating, and chick rearing, can be 
observed throughout the summer. Nests are shallow scrapes and are often 
lined with shell fragments, pebbles, or small sticks. Typical clutch 
size is 3 to 4 eggs and incubation lasts 27 to 31 days. Chicks can feed 
themselves after hatching (i.e., are precocial), and fledge at 18 to 25 
days of age (Service 1988b). Fledging success varies by site and year. 
For example, between 1986 and 1999 along the Missouri River, there were 
0.06 to 1.61 fledged chicks/pair (G. Pavelka pers.com comm.). Between 1982 
and 1987 Haig and Oring (1987) reported fledge ratios between 0.3 to 
2.1 or 0.4 to 3.0 fledged chicks/pair, depending on 1987 data, for Lake 
of the Woods, Minnesota. In the United States Alkali Lake Core region, 
which includes parts of northwest North Dakota and northeast Montana, 
annual fledge ratios varied between 0.60 to 1.49 fledged chicks/pair 
from 1994 to 2000 (J. Knetter, University of Wisconsin-Madison, pers.com comm.).
    Nest and chick predation, weather, human disturbance, and 
hydrologic cycles influence fledging success. If nest loss occurs early 
in the season, piping plovers will often renest. After later nest loss, 
chick loss, or fledging chicks, plovers begin their southerly migration 
from mid-July through early September. Piping plovers that breed in the 
Great Plains generally winter along the Gulf Coast from Mexico to 
Florida, but some occasionally winter along the southern Atlantic Coast 
from North Carolina to Florida (Haig and Plissner 1993).

Previous Federal Actions

    On December 30, 1982, we published a notice of review in the 
Federal Register (47 FR 58454) identifying native vertebrate taxa being 
considered for addition to the List of Endangered and Threatened 
Wildlife. We included the piping plover in that review list as a 
category two species, indicating that we believed the species might 
warrant listing as threatened or endangered, but that we had 
insufficient data to support a proposal to list then. Subsequent review 
of additional data showed that the piping plover warranted listing, and 
in November 1984 we published a proposal in the Federal Register (49 FR 
44712) to list the piping plover as endangered in the Great Lakes 
watershed and as threatened along the Atlantic Coast, the northern 
Great Plains, and elsewhere in their ranges. The proposed listing was 
based on the decline of the species and existing threats, including 
habitat destruction, disturbance by humans and pets, high levels of 
predation, and contaminants.
    After a review of the best scientific data available and all 
comments received in response to the proposed rule, we published the 
final rule (50 FR 50726) on December 11, 1985, designating the Great 
Lakes population (Illinois, Indiana, Michigan, northeastern Minnesota, 
New York, Ohio, Pennsylvania, Wisconsin, and Ontario) as endangered; 
and listing piping plovers along the Atlantic coast (Quebec, New 
foundland, Maritime Provinces, and States from Maine to Florida), and 
in the northern Great Plains (Iowa, northwestern Minnesota, Montana, 
Nebraska, North Dakota, South Dakota, Alberta, Manitoba, and 
Saskatchewan) as threatened. All piping plovers on migratory routes 
outside of the Great Lakes watershed or on their wintering grounds are 
considered threatened. The Service did not designate critical habitat 
for the species at that time.
    After 1986, we formed two recovery teams, the Great Lakes/Northern 
Great Plains Piping Plover Recovery Team and the Atlantic Coast Piping 
Plover Recovery Team. In 1988 the Great Lakes and northern Great Plains 
(Service 1988b) and Atlantic Coast (Service 1988a) Recovery Plans were 
published. In 1994 the Great Lakes/Northern Great Plains Recovery Team 
began to revise the Recovery plan for the Great Lakes/Northern Great 
Plains populations (Service 1994). The 1994 draft included updated 
information on the species and was distributed for public comment. 
Subsequently, we decided that the recovery of these two inland 
populations would benefit from separate recovery plans. Separate 
recovery plans for the Great Lakes and northern Great Plains 
populations are presently under development.
    The final listing rule for the piping plover indicated that 
designation of critical habitat was not determinable.

[[Page 57642]]

Thus, designation was deferred. No further action was taken to 
designate critical habitat for piping plovers. On December 4, 1996, 
Defenders of Wildlife (Defenders) filed a suit (Defenders of Wildlife 
and Piping Plover v. Babbitt, Case No. 96CV02965) against the 
Department of the Interior and the Service over the lack of designation 
of critical habitat for the Great Lakes population of the piping 
plover. Defenders filed a similar suit (Defenders of Wildlife and 
Piping Plover v. Babbitt, Case No. 97CV000777) for the northern Great 
Plains piping plover population in 1997. During November and December 
1999 and January 2000, we began negotiating with Defenders on a 
schedule for piping plover critical habitat designation. On February 7, 
2000, before the settlement negotiations were concluded, the U.S. 
District Court for the District of Columbia issued an order directing 
us to publish a proposed critical habitat designation for nesting and 
wintering areas of the Great Lakes breeding population of the piping 
plover by June 30, 2000, and for nesting and wintering areas of the 
northern Great Plains population of the piping plover by May 31, 2001. 
A subsequent order, after we requested the court to reconsider its 
original order relating to final critical habitat designation, directed 
us to complete the critical habitat designations for the Great Lakes 
population by April 30, 2001, and for the northern Great Plains 
population by March 15, 2002. For biological and practical reasons, we 
chose to propose critical habitat for the Great Lakes breeding birds 
and for all wintering birds in two separate documents; the Great Lakes 
breeding birds final critical habitat was published on May 7, 2001 (66 
FR 22938), and the final rule for wintering habitat was published on 
July 10, 2001 (66 FR 36038).
    On June 12, 2001, we published a proposed determination for the 
designation of critical habitat for the northern Great Plains breeding 
population of the piping plover (66 FR 31760). A total of approximately 
196,576.5 ac (79,553.1 ha) and 1,338 rm (2,153 km) were proposed as 
critical habitat for this piping plover population in 75 counties in 
Minnesota, Montana, North Dakota, South Dakota, and Nebraska. The 
comment period was open until August 13, 2001. During this 60-day 
comment period, we held five public meetings (Glasgow, Montana on July 
10, 2001; Bismarck, North Dakota on July 12, 2001; Pierre, South Dakota 
on July 16, 2001; Yankton, South Dakota on July 17, 2001; and Grand 
Island, Nebraska on July 18, 2001). On July 6, 2001, we published a 
notice in the Federal Register (66 FR 35880) announcing the 
availability of the draft Environmental Assessment for the proposed 
determination. On December 28, 2001, we published a notice in the 
Federal Register (66 FR 67165) announcing the reopening of the comment 
period and a notice of the availability of the draft Economic Analysis 
on the proposed rule. This comment period was open until January 28, 
2002. However, before that reopening the Service's web sites and 
electronic mail were disconnected in response to a court order in an 
unrelated lawsuit. In response to comments received during the 
December-January comment period the Service sought relief from the 
courts and the court took action extending the time for the final rule. 
On March 21, 2002, we again published a notice in the Federal Register 
(67 FR 13123) extending the comment period until May 20, 2002.

Critical Habitat

    Critical habitat is defined in section 3 (5) (A) of the Endangered 
Species Act as (i) the specific areas within the geographic area 
occupied by a species, at the time it is listed in accordance with the 
Endangered Species Act, on which are found those physical or biological 
features (I) essential to conserve 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 to 
conserve 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 Endangered Species Act 
is no longer necessary. Critical habitat receives protection under 
section 7 of the Endangered Species Act through the prohibition against 
destruction or adverse modification of critical habitat with regard to 
actions carried out, funded, or authorized by a Federal agency. Section 
7 also requires conferences with the Service on Federal actions that 
are likely to result in the destruction or adverse modification of 
proposed critical habitat. In our regulations at 50 CFR 402.02, we 
define destruction or adverse modification as ``* * * a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' Aside from the 
added protection that may be provided under section 7, the Endangered 
Species Act does not provide other forms of protection to lands 
designated as critical habitat. Because consultation under section 7 of 
the Endangered Species Act does not apply to activities on private or 
other non-Federal lands that do not involve a Federal nexus, critical 
habitat designation would not afford any additional protections under 
the Endangered Species Act for such activities.
    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)).
    Within the geographic area occupied by the species (or, in this 
case, a breeding population), we designate only areas currently known 
to be essential. Essential areas should already have the features and 
habitat characteristics that are necessary to conserve the species. We 
will not speculate about what areas might be found to be essential if 
better information became available, or what areas may become essential 
over time. If the information available at the time of designation does 
not show that an area provides essential life cycle needs of the 
species, then the area should not be included in the critical habitat 
designation. Within the geographic area occupied by the species, we 
will not designate areas that do not have the primary constituent 
elements, as defined at 50 CFR 424.12(b), that provide essential life 
cycle needs of the species.
    Our regulations state, ``The Secretary shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
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 do not designate critical habitat in areas 
outside the geographic area occupied by the species unless the best 
scientific and commercial data demonstrate that the unoccupied areas 
are essential for the conservation needs of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, procedures, and guidance to ensure decisions made by 
the Service represent the best scientific and

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commercial data available. It requires Service biologists, to the 
extent consistent with the Endangered Species 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 contained in 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, Tribes, and counties, scientific status 
surveys and studies, and biological assessments or other unpublished 
materials, and expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize designation of critical 
habitat may not include all habitat eventually determined as necessary 
to recover 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 
the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. Federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas may still result in likely-to-
jeopardize findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.

Methods

    In determining areas essential to conserve the northern Great 
Plains breeding population of piping plovers, we used the best 
scientific and commercial data available. We have reviewed the overall 
approach to the conservation of the northern Great Plains breeding 
population of piping plovers undertaken by the local, State, Tribal, 
and Federal agencies operating within the species' range since its 
listing in 1986, and the identified steps necessary for recovery 
outlined in the Great Lakes and Northern Great Plains Piping Plover 
Recovery Plan (Service 1988b).
    We also have reviewed available information that pertains to the 
habitat requirements of this species, including material received since 
completion of the recovery plan. The material included data in reports 
submitted during section 7 consultations and by biologists holding 
section 10(a)(1)(A) recovery permits; the 1994 Technical/Agency Review 
Draft Revised Recovery Plan for Piping Plovers Breeding on the Great 
Lakes and Northern Great Plains (Service 1994); research published in 
peer-reviewed articles and presented in academic theses and agency 
reports; annual survey reports; regional Geographic Information System 
(GIS) coverages; and personal communications with knowledgeable 
biologists.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Endangered Species 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 physical and biological features (primary constituent 
elements) that are essential to conservation of the species, and that 
may require special management considerations and protection. These 
include, but are not limited to--(1) Space for individual and 
population growth, and for normal behavior; (2) food, water, air, 
light, minerals, or other nutritional or physiological requirements; 
(3) cover or shelter; (4) sites for breeding, reproduction, rearing (or 
development) of offspring; and (5) habitats protected from disturbance 
or that are representative of the historic geographical and ecological 
distributions of a species.
    Primary constituent elements for the northern Great Plains 
population of piping plovers are those habitat components (physical and 
biological) essential for the biological needs of courtship, nesting, 
sheltering, brood-rearing, foraging, roosting, intraspecific 
communication, and migration. The one overriding primary constituent 
element (biological) that must be present at all sites is the dynamic 
ecological processes that create and maintain piping plover habitat. 
Without this biological process the physical components of the primary 
constituent elements would not be able to develop. These processes 
develop a mosaic of habitats on the landscape that provide the 
essential combination of prey, forage, nesting, brooding and chick-
rearing areas. The annual, seasonal, daily, and even hourly 
availability of the habitat patches is dependent on local weather, 
hydrological conditions and cycles, and geological processes.
    The biological primary constituent element, i.e., dynamic 
ecological processes, creates different physical primary constituent 
elements on the landscape. These physical primary constituent elements 
exist on different habitat types found in the northern Great Plains, 
including mixosaline to hypersaline wetlands (Cowardin et al. 1979), 
rivers, reservoirs, and inland lakes. These habitat types or physical 
primary constituent elements that sustain the northern Great Plains 
breeding population of piping plovers are described as follows:
    On prairie alkali lakes and wetlands, the physical primary 
constituent elements include--(1) Shallow, seasonally to permanently 
flooded, mixosaline to hypersaline wetlands with sandy to gravelly, 
sparsely vegetated beaches, salt-encrusted mud flats, and/or gravelly 
salt flats; (2) springs and fens along edges of alkali lakes and 
wetlands; and (3) adjacent uplands 200 ft (61 m) above the high water 
mark of the alkali lake or wetland.
    On rivers the physical primary constituent elements include--
sparsely vegetated channel sandbars, sand and gravel beaches on 
islands, temporary pools on sandbars and islands, and the interface 
with the river.
    On reservoirs the physical primary constituent elements include--
sparsely vegetated shoreline beaches, peninsulas, islands composed of 
sand, gravel, or shale, and their interface with the water bodies.
    On inland lakes (Lake of the Woods) the physical primary 
constituent elements include--sparsely vegetated and windswept sandy to 
gravelly islands, beaches, and peninsulas, and their interface with the 
water body.
    It is the interactive nature of the biological primary constituent 
element or the dynamic ecological processes that create the physical 
primary constituent elements. On the northern Great Plains, the 
suitability of beaches, sandbars, shoreline, and flats as piping plover 
habitat types also is dependent on a dynamic hydrological system of 
wet-to-dry cycles. Habitat area, abundance and availability of insect 
foods, brood and nesting cover, and lack of vegetation are all linked 
to these water cycles. On rivers, one site becomes flooded and erodes 
away as another is created. More importantly the high flows on rivers 
create a complex of habitats for feeding, nesting, and brooding 
(Pavelka 2002 and

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Vander Lee et al. 2002). This dynamic nature of rivers, as well as 
flow-management of rivers is important to long-term habitat creation 
and maintenance for piping plovers. On alkali lakes, the complex of 
different wetland types is especially important for providing areas for 
plovers feeding, nesting, and brooding in all years, as site 
availability cannot be predicted or selected at a given time, due to 
varying water cycles.
    Biologists have noted a relationship appears to exist between 
availability of breeding habitat and wet-to-dry cycles. For example, in 
dry years nesting areas on alkali wetlands lacking water may be 
unsuitable for piping plovers. In subsequent years as the basins refill 
there is an abundance of habitat. However, when the wet cycle peaks, 
there may be a lack of exposed shoreline habitats for nesting piping 
plovers. It is the dynamics of the changing cycles and the fact that 
these cycles can occur differently across the landscape that provides 
piping plover habitat over the long term.
    Additionally, droughts on the Missouri River can produce more 
available habitat as reservoir levels drop. However, by the time the 
nesting season ends, vegetation has encroached on shoreline habitats. 
Subsequent high water years are necessary for the long-term vegetative 
maintenance of shoreline habitats.
    Continued reduced flows on rivers like the Platte and Missouri 
Rivers, either due to management or climatic conditions can result in 
vegetative encroachment on exposed sandbars limiting available piping 
plover nesting habitat. However, increased flows or high flows during 
subsequent years provides for the long term maintenance of piping 
plover nesting habitat by scouring vegetation from sandbars and 
creating high sandbars.
    These cycles are most likely interrelated throughout the northern 
Great Plains landscape. For example, if Nebraska rivers or alkali 
wetlands are flooded during the early part of the breeding season, 
there is some evidence that piping plovers move to other rivers like 
the Missouri River, to renest. Similarly the abundance of piping 
plovers using the Missouri River (1988-1997) correlates strongly with 
alkali wetland piping plover populations during periods of below-
average water levels in the riverine system (Licht 2002, in press). 
Licht (2002 in press) also found that once water levels on the Missouri 
River reached a certain point the relationship turned negative with 
river populations decreasing and alkali wetland populations increasing.
    Because piping plovers evolved in this dynamic and complex system, 
and because they are dependent on it for their continued survival and 
eventual recovery, critical habitat boundaries incorporate natural 
processes inherent in the system and include sites that might not 
exhibit all appropriate habitat components in all years but have a 
documented history of such components over time and maintain the 
ability to develop and support those components.
    Critical habitat for the northern Great Plains breeding population 
of piping plovers must meet the biological and physical primary 
constituent element requirements as defined above and are found on 
areas that--(1) Are currently or recently used for breeding, or (2) 
were documented to have been occupied historically, or (3) are not 
specifically documented to have been occupied, but are deemed potential 
breeding habitat since these areas are part of a riverine system with 
documented nesting, and are within the historic geographic range, or 
(4) include habitat complexes, including wetland and adjacent upland 
areas, essential to the conservation of this species (50 CFR 
424.13(d)). The critical habitat designation is effective year-round in 
order to conserve habitats. Therefore, an area that contains primary 
constituent elements is considered to be critical habitat even if these 
elements are temporarily obscured by snow, ice, or other temporary 
features. Areas found within the critical habitat boundaries that do 
not conform with the above discussion and the elements of this 
paragraph are not critical habitat. However, it is important to keep in 
mind that, because of the nature of the northern Great Plains, some of 
these designated habitats will not have these components every year but 
must have them over time to be considered critical habitat.

Criteria Used To Identify Critical Habitat

    The Recovery Plan for the Great Lakes and Northern Great Plains 
Piping Plover (Service 1988) and the Technical/Agency Review Draft 
Revised Recovery Plan for Piping Plovers Breeding on the Great Lakes 
and Northern Great Plains (1994) identified the specific recovery needs 
of the northern Great Plains breeding population of the piping plover, 
and serve as starting points for identifying areas essential to its 
conservation.
    Piping plovers are found in a variety of ecologically and 
geographically distinct areas within the northern Great Plains. To 
recover the northern Great Plains breeding population of the piping 
plover to the point where it can be delisted, it is essential to 
preserve the population's genetic diversity as well as the habitat on 
which it persists. The areas identified in the recovery plans as 
necessary to achieve recovery of the population are generally reflected 
in this designation.
    However, the recovery plans did not include the most recent 
comprehensive breeding survey data for the northern Great Plains and 
did not identify all possible areas essential to the survival and 
recovery of the species. Thus, we identified additional areas in this 
proposal from surveys conducted throughout the U.S. portion of the 
northern Great Plains. Data availability varied between States. Data 
was obtained from surveys conducted in North Dakota from 1987 to 2001, 
in Montana from 1986 to 2001, in Minnesota from 1982 to 2001, on the 
Missouri River from 1986 to 2001, in Nebraska from 1986 to 2001, in 
Kansas from 1996 to 2001, in Colorado from 1990 to 2001, and in Iowa 
from 1986 to 2001; and from the 1991, 1996, and 2001 International 
Piping Plover Censuses. We also removed some sites included in the 1994 
draft recovery plan due to existing protection from current management 
practices or plans. Based on the primary constituent elements, we 
divided the habitat types used by the northern Great Plains breeding 
population of piping plovers into alkali lakes and wetlands, rivers, 
reservoirs, and inland lakes. We discuss our inclusions and exclusions 
of habitat below.
    Alkali Lakes and Wetlands--We mapped Montana/North Dakota alkali 
lakes and wetlands where breeding piping plovers have been observed in 
more than 1 year for the period of survey record (1987-2001 for North 
Dakota and 1986-2001 for Montana). The survey period encompassed both 
wet and dry cycles; therefore, the dynamic nature of prairie alkali 
lakes and wetlands, and the resulting shift in use by piping plovers of 
different habitat types, is reflected in the mapping. All alkali lakes 
and wetlands mapped exhibit one or more of the primary constituent 
elements. We did not include many areas that exhibited all of the 
primary constituent elements but breeding piping plovers were only 
observed once or were never observed. Our legal descriptions include 
all sections in which alkali lakes and wetlands and associated 200-ft 
(61-m) upland habitat are found.
    We had proposed the inclusion of Nelson Reservoir in the proposed 
rule. Nelson Reservoir, Bureau of

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Reclamation (BOR) project, is a 4,559-ac (1845-ha) irrigation 
reservoir. During the comment period we received comments from the 
irrigation district and BOR requesting that Nelson Reservoir be 
withdrawn from the final designation of critical habitat. Both the BOR 
and the Glasgow Irrigation District recognize the Memorandum of 
Understanding (MOU) between the Malta and Glasgow Irrigation districts, 
U.S. Department of the Interior, BOR, the Service, and Bowdoin National 
Wildlife Refuge that is in place and provides for protecting the piping 
plover and maintaining Nelson reservoir for its project purpose 
(irrigation) and recommended that consideration be given to not listing 
Nelson Reservoir as critical habitat.
    We have reviewed the current MOU for Nelson Reservoir between the 
agencies. We also are aware that each of the signatory agencies has 
worked toward and implemented management actions that are helping with 
the recovery of piping plovers in Montana. Many of the necessary 
recovery actions have been the result of the BOR's implementation of a 
1990 biological opinion issued to the BOR on the operation of Nelson 
Reservoir. The BOR believes that the adaptive management strategies 
identified in the MOU, along with their current management actions that 
includes the construction of several islands that they are meeting the 
conservation and recovery needs of the piping plover on Nelson 
Reservoir. We concur with the BOR and are not proposing Nelson 
Reservoir for this designation. Since such management actions provide a 
benefit to the species, include implementation assurances and are 
adaptable to future management changes at Nelson Reservoir then this 
area is removed from the piping plover critical habitat designation.
    The North Dakota Army National Guard (NDNG) owns portions of Lake 
Coe in North Dakota mapped as critical habitat in the proposed rule. 
The NDNG has completed the Camp Grafton Integrated Natural Resources 
Management Plan that includes Lake Coe. This plan provides a benefit 
for piping plovers on Lake Coe; includes implementation assurances and 
includes an opportunity for adaptive management. Therefore, the Camp 
Grafton portion of Lake Coe is not in need of special management and at 
the request of the NDNG, we have excluded the NDNG property on Lake Coe 
from critical habitat designation.
    Missouri River and Reservoirs--We mapped the Missouri River from 
Fort Peck Reservoir, Montana, to Ponca State Park, Nebraska. We 
identified two riverine reaches (a portion of Fort Peck riverine reach 
and the reach from Ponca State Park, Nebraska, to Plattsmouth, 
Nebraska), two reservoir reaches (Lake Sharpe and Lake Francis Case), 
and a portion of another reservoir (Fort Peck) on the Missouri River 
that we are not designating as critical habitat, because they did not 
meet the definition of critical habitat. See discussion to follow.
    The Fort Peck riverine reach of the Missouri River from the Fort 
Peck Dam to the confluence of the Milk River (river mile 1712) is 
highly degraded and contains few sandbars due to sediments trapped 
behind the Fort Peck Dam. Sandbar formation begins further downstream 
due to sediments transported from the Milk River. The upstream section 
that we have not included does not contain, and is not likely to 
develop, the primary constituent elements needed for piping plover 
survival and recovery in the near future.
    Although piping plovers have been documented as far south as 
Plattsmouth, Nebraska, on the Missouri River, very limited habitat 
currently exists for piping plovers below Ponca State Park, Nebraska. 
The Missouri River has little sandbar habitat in this reach due to the 
channelization of the river and bank stabilization projects created to 
support navigation. We are aware of efforts to restore some backwater 
areas along this reach that will likely create suitable habitat for the 
piping plover. We will continue to monitor these areas and may consider 
proposing them as critical habitat if they obtain the primary 
constituent elements needed for the piping plover in the future. Along 
the Iowa reach of the Missouri River, plovers exist on fly ash sites 
adjacent to the river. Nevertheless, these temporary habitats support 
few birds (about 0.6 percent) and have poor productivity; therefore, 
these habitats are not considered essential and do not meet the 
definition of critical habitat.
    Lake Sharpe was not included because this reservoir reach has only 
supported a few pairs of birds on one beach since listing and, 
therefore, is not considered essential and does not meet the definition 
of critical habitat. However, a small peninsula/island within the Lower 
Brule Sioux Tribe Reservation boundary is considered an area in need of 
special management. The Tribe and the Service believe this area if 
managed could help restore piping plovers to this reservation. Although 
this site is an area in need of special management, we cannot designate 
this area at this time because it was not in the proposed rule and thus 
was not subject to public comment. However, this area could be 
considered in a future amendment to the critical habitat designation.
    In Montana, piping plovers have been found on the Dry Arm, Duck 
Creek Bay, Bear Creek Bay, and Skunk Coulee of Fort Peck Reservoir. We 
are not proposing the entire Fort Peck Reservoir as plovers have never 
been reported on the western arm.
    Including portions of the Missouri River that may not be occupied 
at this time is necessary because of the dynamic nature of the river. 
Sandbar/island habitats migrate up and down the riverine sections of 
the river resulting in shifts in the location of primary constituent 
elements. Mainstem reservoir areas also change depending on water level 
management. Piping plovers opportunistically respond to these shifts 
from year to year. The entire length of mainstem reservoirs was 
included though small areas of reservoirs may never contain the primary 
constituent elements due to high banks and steep slopes. We did not 
exclude these areas because the court ordered deadlines and staff and 
budget limitations did not allow the time or funding to undertake the 
work necessary to provide the appropriate detail and accuracy of such 
an endeavor. However, Federal actions limited to these areas that do 
not contain the primary constituent elements would not trigger a 
section 7 consultation, unless they affect the species and/or the 
primary constituent elements in or adjacent to critical habitat.
    In South Dakota, a 107.5-mi (172.9-km) stretch from Big Bend Dam to 
Fort Randall on the Missouri River (Lake Francis Case) was included in 
the proposed rule although nesting piping plovers have not been 
documented in this reach in recent times. Nesting surveys of this reach 
had not been conducted since the appearance of sand habitats. Based on 
comments received and information obtained during the comment period we 
have decided not to include Lake Francis Case in the designation. The 
South Dakota Department of Game, Fish, and Parks provided supporting 
information for the removal of Lake Francis Case from the designation. 
This information primarily indicated that nesting piping plovers have 
not been documented in this reach in recent times. We reviewed 
additional information from the results of the 2001 International 
Piping Plover Census that found no plovers in this reach despite the 
new formation of some habitat. We further interviewed Corps of 
Engineers (Corps) staff concerning the operations of Lake Francis Case 
and the availability of habitat during the nesting season.

[[Page 57646]]

Natural Resource staff at the Corps' Ft. Randall Project office, 
indicated that while habitat is developing in Lake Francis Case just 
above the mouth of the White River, the flows on the river do not allow 
for sufficient exposure time for nesting plovers (C. Wilson, pers.com comm.). Based on this information Lake Francis Case apparently does not 
now provide significant nesting habitat for the piping plover, nor has 
it in the last 10 years, nor is it likely to in the near future. Based 
on a review of all of the information reviewed we have removed Lake 
Francis Case from consideration since there is limited data reported to 
support designation of critical habitat. If habitat conditions at Lake 
Francis Case change over time then critical habitat designation can be 
reassessed.
    Inland Lakes (Lake of the Woods)--In Minnesota, piping plovers key 
in on sandy points or spits in large lakes. Although many sandy beach/
large lakes exist, piping plovers are attracted to the rare combination 
of windswept islands or peninsulas with a lack of adjacent tree cover. 
Incidental observations have never yielded nesting observations on 
large lakes such as Upper and Lower Red Lakes or Lake Winnibigoshish. 
Therefore, we have limited our critical habitat designation in 
Minnesota to three known sites on Lake of the Woods where the species 
has been observed nesting in more than 1 year. Zippel Bay on Lake of 
the Woods and Agassiz National Wildlife Refuge were not included 
because breeding pairs were only observed in 1 out of 20 years at these 
sites. In addition, habitat conditions have changed since those 
observations which generally prevent piping plovers from using these 
areas (K. Haws, pers.com comm.).
    Nebraska Rivers--Portions of the Platte, Niobrara, and Loup Rivers 
were designated where piping plover nesting has been consistently 
documented since listing.
    Similar to the Missouri River, portions of the Platte River 
included in the critical habitat designation may not be occupied in a 
given year, but designation is necessary because of the dynamic nature 
of the river. Sandbar habitats migrate up and down the rivers resulting 
in shifts in the location of primary constituent elements. Based on 
comments received during the comment period the length of the Platte 
River included in the designation was reduced from the proposed rule.
    The Elkhorn River was considered for this rule but was not included 
because there is limited documented nesting on this river. We do not 
consider the Elkhorn River to be essential at this time to the 
conservation and recovery of the northern Great Plains breeding 
population of the piping plover.
    The shoreline along Lake McConaughy, Nebraska, was not included as 
critical habitat due to the existence of two draft conservation 
management plans developed by the Central Nebraska Public Power and 
Irrigation District to satisfy a Federal Energy Regulatory Commission 
(FERC) relicensing requirement for Project No. 1417. The ``Land and 
Shoreline Management Plan'' and the ``Management Plan for Least Terns 
and Piping Plovers Nesting on the Shore of Lake McConaughy'' were 
developed in coordination and in agreement with the Service and the 
Nebraska Game and Parks Commission. Both plans are being implemented on 
an interim basis while awaiting FERC approval. We believe that 
implementation of these conservation management plans is consistent 
with piping plover recovery. Therefore, this area is not in need of 
special management and does not meet the definition of critical 
habitat. If conservation management plans are in place and meet the 
following three criteria, then we may exclude these areas from critical 
habitat. These conservation plans must--(1) Provide a benefit to the 
species; (2) include implementation assurances; and (3) include 
features, such as an adaptive management plan, that will assure 
effectiveness. Therefore, despite the presence of nesting piping 
plovers at this site, it is eligible for exclusion from critical 
habitat on the basis of having conservation management plans that 
specifically address the conservation and recovery of the piping 
plover. We have been informed that FERC will be finalizing the plans in 
the near future.

Sand Pit Nesting Sites

    We have thoroughly reviewed the best available and scientific 
information available in regard to sandpits. Through the comment period 
we were provided additional information from the Nebraska Game and 
Parks Commission and various agencies that manage the sandpit areas. We 
have concluded that sandpits do not support the primary biological 
constituent element of dynamic ecological processes. Because sandpits 
are artificial and temporary in nature, not all of the necessary 
biological and physical features that are essential to the conservation 
of the species are present at sandpits. We agree that sandpits have 
produced piping plovers over the years but it has not been without 
significant resource actions from managing agencies. Some biologists 
believe that the sandpits have been successful because of their 
location adjacent to the Platte River (Corn and Armbruster 1983 and E. 
Kirsch pers.com comm. 2001). ``Birds nesting on sandpits appear to forage 
on river channel sites as well as on the sandpit shoreline, and 
occasionally appear to fly up to a mile between the sandpit nest site 
and the river channel foraging site (Corn and Armbruster 1993). Because 
sandpits are man-made, the sand environment is machine shifted 
regularly affecting vegetative growth and soil moisture. Soil moisture 
at sandpit sites is lower than on river channel sites and declines 
dramatically from the shoreline edge on sandpits. Corn and Armbruster 
(1983) found that soil moisture was the key factor in explaining the 
difference in invertebrate catch rates between rivers and sandpits. 
They also found invertebrate catch rates and densities are higher on 
river channel sites than on sandpits and invertebrate catch rates 
increased more dramatically over the summer on river channel sites than 
on sandpits. Without the dynamic ecological processes sandpit habitats 
are only temporary and marginal habitats for piping plovers. Once 
sandpits are abandoned, they become vegetated and too dense for piping 
plovers and the physical primary constituent elements are eliminated. 
Because sandpits do not meet the primary constituent elements and are 
not likely to meet the primary constituent elements in the future we 
have excluded them from designation.
    Furthermore not all sand and gravel substrates at sand pits can be 
used by piping plovers. According to Sidle and Kirsch (1993) piping 
plovers will not nest on sand pits where the sand is steep sloped, near 
sieves, below slurry runoff, on roads, areas frequently used by heavy 
equipments, or in small areas covered by dense vegetation. Sidle and 
Kirsch (1993) further speculate that where sandbar habitat is available 
that plovers prefer sandbar habitats over sand pits. The percentage of 
birds using sand pits was slightly lower in 1988 than in other years 
because much sandbar habitat was available due to extremely low flows 
from May through late July of that year (Lingle 1993).
    In addition to the lack of the primary constituent elements, the 
nature of sandpits is not conducive to long-term management and 
recovery of the piping plover. We expect that mining will continue in 
areas of Nebraska as it has for years. However, eventually the mined 
areas are abandoned and usually sold for residential development. 
Usually within 1 and 3 years the abandoned mines re-vegetate and all 
value for piping plover nesting habitat is lost. Therefore, sandpits do 
not

[[Page 57647]]

provide for piping plover recovery in the long term. This was 
recognized by the recovery plan as sandpits are not listed as essential 
habitat.
    We do recognize that sand pits have provided alternative nesting 
areas for piping plovers when other river sites were not available. We 
further recognize the Tern and Plover Conservation Partnership in the 
Lower Platte River reach has the sand and gravel mining industry 
working with conservation groups and researchers to conserve the 
plovers that choose to nest on their sand pits. However, we have 
decided that sand pits as nesting areas for the piping plover currently 
do not meet the definition and requirements of critical habitat.
    Colorado and Kansas Nesting Sites--Nesting areas on the Kansas 
River in Kansas were considered for possible inclusion as critical 
habitat but were not included because currently these sites are not 
considered essential for reasons discussed below and, therefore, do not 
meet the requirements of critical habitat. The Kansas River nesting 
occurred for the first time in 1996 and is suspected to have occurred 
because of habitat created by historical flood events (1993 and 1995). 
We believe that a return to more normal flows will eliminate nesting 
habitat on this river. In 4 years of documented nesting on the Kansas 
River there was one pair of plovers the first year and never more than 
four pairs. Additionally, productivity has been very limited. However, 
the Corps and the Service will be monitoring the Kansas River for 
piping plovers during the nesting season (Service 2000a). If nesting 
birds persist on the Kansas River, then we may reevaluate this river's 
contribution to conservation and recovery of the northern Great Plains 
breeding population of piping plovers and the need to designate 
critical habitat in the future.
    Six different reservoirs (Neenoshe, Neegrande, Neeskah, John 
Martin, Adobe Creek, and Verhoeff) in Bent, Otero, and Kiowa Counties, 
Colorado, have been monitored for 10 years (1990-2000) and have not 
been able to sustain a stable population. Although there was a high of 
nine pairs in 1994 and 1995 and only four pairs in 2000, these sites 
have not contributed significantly to the population. Predation and 
water level fluctuations are limiting factors affecting reproductive 
success. The Colorado Division of Wildlife is likely to continue 
monitoring the nesting plovers on the reservoir sites. In addition, the 
Colorado Department of Natural Resources approved a recovery plan for 
both the piping plover and interior least tern in 1994. Therefore, we 
are not proposing to include these areas in the critical habitat 
designation because currently we do not consider them essential and, 
therefore, do not meet the requirements of critical habitat.
    Tribal Land--Eight Tribes have critical habitat designated within 
the boundary of their reservations on the Missouri River including--the 
Assiniboine and Sioux Tribes of Ft. Peck, Montana; the Standing Rock 
Sioux Tribe, and the Three Affiliated Tribes (Mandan, Hidatsa, and 
Arikara Tribes) of the Ft. Berthold Reservation in North Dakota; the 
Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton 
Sioux Tribe in South Dakota; and the Santee Sioux Tribe of Nebraska. 
Additionally, eight Tribes have land or Tribal trust land on submerged 
sites or sandbars/islands of the Missouri River. These Tribes include--
the Assiniboine and Sioux Tribes of Ft. Peck, Montana; the Standing 
Rock Sioux Tribe, and the Three Affiliated Tribes (Mandan, Hidatsa, and 
Arikara Tribes) of the Ft. Berthold Reservation in North Dakota; the 
Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and the Yankton 
Sioux Tribe in South Dakota; and the Santee Sioux Tribe of Nebraska. 
Indian trust lands are lands held by the United States in trust for 
either a Tribe or an individual Indian. The Submerged Lands Act, 43 
U.S.C. 1301-1356, states that lands beneath navigable water held by the 
United States for the benefit of any Tribe, band, or of Indians or for 
individual Indians is excepted from the confirmation and establishment 
of the States' rights confirmed by 43 U.S.C. 1311. Therefore, the 
Service recognizes that there are Tribal lands within the areas 
designated as critical habitat on the Missouri River. These habitats on 
the Missouri River within the boundary of a Tribe, or held by the 
Tribe, individual Indian, or held in Trust by the United States with 
the primary constituent elements, as discussed in the Missouri River 
sections, are essential to the recovery of the piping plover. 
Additionally, the Turtle Mountain Tribe has mineral rights to land 
along the Missouri River in North Dakota that was taken by the Corps 
for the Missouri River mainstem system. We also coordinated with three 
additional Tribes with interest in lands on the Missouri River because 
of past treaties or other issues including the Rosebud Sioux and Oglala 
Sioux Tribes of South Dakota and the Winnebago Tribe of Nebraska.
    The Lower Brule and Crow Creek Tribes also were consulted on the 
critical habitat designation. These reservation boundaries include 
areas on Lake Sharpe and Lake Francis Case. Both Reservoirs were 
excluded from designation. However, a small peninsula/island within the 
Lower Brule Sioux Tribe Reservation boundary is considered an area in 
need of special management. The Tribe and the Service believe this area 
if managed could help restore piping plovers to this reservation. 
Although this site is an area in need of special management, we cannot 
designate this area at this time because it was not in the proposed 
rule and thus was not subject to public comment. However, this area 
could be considered in a future amendment to the critical habitat 
designation.
    The Ponca Tribe reservation boundary includes critical habitat 
designated along the Niobrara River, but there are no trust lands 
within the critical habitat designation.
    Piping plovers nest on sandbars and islands of the Assiniboine and 
Sioux Tribes of Ft. Peck. We believe that these Tribal lands are 
essential for the conservation of the piping plover and we have 
designated critical habitat for the piping plover on these lands of the 
Assiniboine and Sioux Tribes of Ft. Peck. However, the Ft. Peck Tribes 
have expressed concerns over designation of critical habitat on their 
lands because--(1) perception of burdens from the designation; (2) 
their view that it has never been established that the Endangered 
Species Act applies to Indian Tribes and their natural resources, and 
(3) their plan to develop a Habitat Conservation Plan (HCP) for species 
along the Missouri River including the piping plover. The Ft. Peck 
Tribal land within the high banks of the Missouri River will remain in 
the critical habitat designation. When the Ft. Peck Tribes have 
completed a HCP the Service will review the plan for removal of their 
Tribal lands from the critical habitat designation.
    We initiated coordination with all Tribes on this designation under 
the guidance of the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, which 
requires us to coordinate with federally recognized Tribes on a 
Government-to-Government basis.
    We understand that some Tribes have concerns for the Service's 
government to government consultation responsibilities. We acknowledge 
the Tribes concerns but we believe we have carried out our 
responsibilities as best as we could under the constraints of limited 
staff and budgets and as court ordered time frames allowed. With the 
exception of the Turtle Mountain Tribe,

[[Page 57648]]

which we only recently learned has mineral rights along the Missouri 
River, we have previously corresponded with Tribes by letters to Tribal 
Chairs and heads of Tribal Game and Fish Agencies on five different 
occasions and also facsimiles when the proposed rule was published.
    Further information and communication have occurred with various 
Tribal and BOR staffs at meetings to discuss piping plover critical 
habitat, including the 2001 Native American Fish and Wildlife Society 
Meeting in Billings, Montana, two Inter-Tribal Great Plains Fish and 
Wildlife Commission Meetings, and follow-up meetings with Yankton, 
Lower Brule, Fort Peck, Assiniboine, and Sioux, and Cheyenne River 
Tribes. Telephone communication also has taken place between Service 
Field staff and Tribal Game and Fish field staff.
    To identify and map areas essential to the conservation of the 
species, we used the characteristics of essential habitat described 
above, data on known piping plover locations, and criteria in the 
recovery plans for reclassification of the species. We then evaluated 
areas based on survey and research data and the primary constituent 
elements, including hydrology, influences of ecological processes, and 
topographic features.
    To map areas of critical habitat, we used the Service's National 
Wetland Inventory (NWI) digitized data and U.S. Geological Survey 
public land surveys to develop regional GIS coverages; Environmental 
Systems Research Institute wetland data (where NWI data was 
unavailable); 1984 digital ortho quarter quads for all Nebraska river 
reaches, and Statewide and county maps for Nebraska; Central Public 
Power and Irrigation District Species Protection Zone maps of Lake 
McConaughy; and data from known piping plover breeding locations. 
Tribal boundary and Tribal trust information were interpreted and 
provided to us by the Bureau of Indian Affairs (BIA) Great Plains 
regional Office. We also solicited information from knowledgeable 
biologists and reviewed the available information pertaining to habitat 
requirements of the species.
    We could not depend solely on federally owned lands for critical 
habitat designation as these lands are limited in geographic location, 
size, and habitat quality within the current range of the northern 
Great Plains breeding population of the piping plover. In addition to 
the federally owned lands, we are designating critical habitat on non-
Federal public lands and privately owned lands, including land owned by 
the States of Minnesota, Montana, Nebraska, North Dakota, and South 
Dakota.
    All non-Federal lands designated as critical habitat meet the 
definition of critical habitat under section 3 of the Endangered 
Species Act in that they are within the geographical area occupied by 
the species, are essential to the conservation of the species, and may 
require special management considerations or protection.
    We described critical habitat as Township, Range, and Sections 
(TRS) for the legal descriptions because these are used and recognized 
locally. The maps depicted the alkali lakes and wetlands and associated 
uplands, and showed the TRS boundaries. We also added Universal 
Transverse Mercator (UTM) coordinates at the center point of each site. 
Due to court ordered time constraints, budget and staffing constraints, 
and the use of TRS as our minimum mapping unit, in defining critical 
habitat boundaries, we were unable to exclude developed areas such as 
mainstem dam structures, buildings, marinas, boat ramps, bank 
stabilization and breakwater structures, row cropped or plowed 
agricultural areas, mines, roads and other lands (e.g., high bank 
bluffs along Missouri River reservoirs) unlikely to contain primary 
constituent elements essential for northern Great Plains piping plover 
conservation. In addition we included the entire length of mainstem 
reservoirs even though small areas of reservoirs may never contain the 
primary constituent elements due to high banks and steep slopes. We did 
not exclude these areas because it would require a minimum of 2 years 
to collect data necessary to map at that detail and the necessary 
staffing and funding to complete such an effort. These features will 
not themselves contain one or more of the primary constituent elements. 
Federal actions limited to those features, therefore, would not trigger 
a section 7 consultation, unless they affect species and/or primary 
constituent elements in adjacent critical habitat.
    In summary, in determining areas that are essential to the 
conservation of the northern Great Plains breeding population of the 
piping plover, we used the best scientific and commercial information 
available to us. The critical habitat areas described below constitute 
our best assessment of areas needed for the species' conservation and 
recovery.

Critical Habitat Designation

    At this time, the critical habitat contained within units discussed 
below constitutes our best evaluation of areas needed to conserve the 
northern Great Plains breeding population of piping plovers. Critical 
habitat designations may be subsequently revised if new information 
becomes available after this final rule is published. A formal proposal 
and opportunity for public comment would occur before any changes made 
to this designation, including the addition of any areas as critical 
habitat.
    Table 1 provides a summary of land ownership and approximate 
acreage or river miles of critical habitat for each State. Critical 
habitat for the northern Great Plains breeding population of the piping 
plover includes approximately 183,422 ac (74,228.4 ha) of habitat in 
Minnesota, Montana, and North Dakota, and approximately 1,207.5 mi 
(1,943.3 km) of river in Montana, North Dakota, South Dakota, and 
Nebraska. Table 2 provides land ownership and approximate acreage or 
river miles of critical habitat for each critical habitat unit. Lands 
designated as critical habitat are under private, Federal, Tribal, and 
State ownership. Estimates reflect the total area or river miles within 
critical habitat unit boundaries, without regard to the presence of 
primary constituent elements. Therefore, the area included within the 
designation is less than indicated in Tables 1 and 2.
    Lands designated as critical habitat are divided into 19 critical 
habitat units containing one or more of the primary constituent 
elements for the northern Great Plains population of piping plovers. A 
brief description of each piping plover critical habitat unit is 
provided below and in Table 2.

Minnesota

    Unit MN-1, Rocky Point, Pine and Curry Island, and Morris Point--
This unit includes approximately 235.2 ac (95.1 ha) of unique habitat, 
including sparsely vegetated windswept islands, peninsulas, and sandy 
points or spits that interface with Lake of the Woods in Lake of the 
Woods County. Although this unit is small in size, there have been up 
to 50 plovers found during the breeding season. Numbers have declined 
since the mid-1980s and there is a continued need for habitat and 
predator management. This unit represents the most eastern portion of 
the northern Great Plains population of breeding piping plovers and may 
be an important link between the Great Lakes and northern Great Plains 
breeding populations. It is the only remaining breeding site for piping 
plovers in Minnesota. Approximately 100.4 ac (40.6 ha) are designated 
within the 697-ac (282.3-hectare) Rocky Point Wildlife Management Area, 
which is in public ownership, managed by the Minnesota Department of 
Natural Resources. Rocky

[[Page 57649]]

Point is located just east of Arneson on Lake of the Woods. Unit 1 also 
includes approximately 134.8 ac (54.5 ha) within the Pine and Curry 
Island Scientific and Natural Area which is in public ownership, 
managed by the Minnesota Department of Natural Resources. Pine and 
Curry Island Scientific and Natural Area includes approximately 112.6 
ac (45.6 ha) of a sandy barrier island (Pine and Curry Island) and 22.2 
ac (8.9 ha) of an adjacent peninsula (Morris Point) located at the 
mouth of the Rainy River on Lake of the Woods.

Montana

    Unit MT-1, Sheridan County--This unit includes approximately 
19,222.9 ac (7,779.4 ha) of 20 alkali lakes and wetlands in Sheridan 
County, located in the extreme northeast corner of Montana. These 
alkali lakes and wetlands are characterized as follows--shallow, 
seasonally to permanently flooded; mixosaline to hypersaline chemistry; 
sandy to gravelly, sparsely vegetated beaches, salt-encrusted mud 
flats, and/or gravelly salt flats; 200 ft (61 m) of uplands above the 
wetlands' high water mark including springs and fens, which provide 
foraging and protective habitat for piping plovers. Sites included in 
this unit are occupied by piping plovers. This unit requires special 
management including increasing reproductive success through predator 
exclusion devices, such as nest cages and electric fences, and reducing 
vegetation encroachment on nesting beaches through prescribed burning 
or grazing. Essential breeding habitat is dispersed throughout this 
unit which represents the largest portion (approximately 66 percent) of 
the plovers surveyed in Montana. This unit also links similar habitat 
in Canada and North Dakota. Approximately 5,571 ac (2,254.5 ha) are in 
private ownership and 13,651.9 ac (5,524.8 ha) are in public ownership. 
Of the lands in public ownership, 13,356.8 ac (5,405.4 ha) are in 
Federal ownership and 295.1 ac (119.4 ha) are in State ownership. 
Federal lands designated include piping plover populations on Medicine 
Lake National Wildlife Refuge and several Waterfowl Production Areas, 
both owned and managed by the Service. State lands designated include 
land owned and managed by the Montana Department of Natural Resources 
and Conservation.
    Unit MT-4, Bowdoin National Wildlife Refuge--This unit encompasses 
approximately 3,294.5 ac (1,333.2 ha) on Bowdoin National Wildlife 
Refuge with sparsely vegetated shoreline beaches, peninsulas, and 
islands composed of sand gravel, or shale that interface with these 
water bodies. The site is located in east-central Phillips County, 
approximately 170.8 mi (275 km) west of the North Dakota border and 
37.3 mi (60 km) south of Canada. This unit represents the western edge 
of the northern Great Plains breeding population of the piping plover 
and requires special management including water level and predator 
management. Bowdoin National Wildlife Refuge is in public ownership 
(Federal) and managed by the Service. Lake Bowdoin is an off stream 
facility receiving water from the Milk River.

Nebraska

    Unit NE-1, Platte, Loup, and Niobrara Rivers--This unit encompasses 
approximately 440 mi (707.9 km) of river. The river habitat includes 
sparsely vegetated channel sandbars, sand and gravel beaches on islands 
within the high bank for nesting, temporary pools on sandbars and 
islands, and the interface of sand and river where plovers forage. All 
three of these rivers are occupied by and provide essential habitat for 
the piping plover.
    Niobrara River--The Niobrara River is a tributary of the Missouri 
River, originating in Wyoming and flowing through the northern part of 
the Nebraska Sandhills region. The portion of the Niobrara included in 
as Critical Habitat starts at the bridge south of Norton, Nebraska, and 
extends downstream 120 mi (193 km) to its confluence with the Missouri 
River. The Niobrara River is one of the most undeveloped rivers in the 
northern Great Plains and represents one of the last rivers with 
largely untouched piping plover habitats. The source of water for this 
river is largely groundwater discharge which helps to provide a year-
round base flow with few flood events which are essential to successful 
plover nesting. Essential nesting habitat is dispersed throughout this 
unit and this unit represents about 36 percent of Nebraska's plover 
population. Five miles of the Niobrara are within the Ponca Tribe 
reservation boundary.
    In 1991, Congress designated 76 mi (122.3 km) of the Niobrara River 
as a ``National Scenic River,'' 50 mi (80.5 km) of which are included 
in the Critical Habitat designation. The National Scenic River reach 
ends where Highway 137 crosses the river. The Nature Conservancy owns 
and manages 9.5 mi (15.3 km) along the Niobrara River that falls within 
both the National Scenic River reach and the piping plover Critical 
Habitat. Other ownership and interests are principally private. The 
primary land use along the Niobrara River is farming (east along the 
river) and ranching (west along the river).
    Loup River--The Loup River flows 68 mi (109.4 km) to its confluence 
with the Platte River near Columbus. Ownership interests within this 
reach of Critical Habitat are primarily private. Habitat on the Loup 
River designation is part of the larger Platte River watershed and 
provides productive habitat for piping plovers. The Loup River is one 
of the Platte River's principal tributaries.
    Platte River--The North and Middle Platte Rivers each originate in 
the Rocky Mountains of Colorado with snow melt, and flow east into 
Nebraska where they join forming the Platte River near the town of 
North Platte. The reach included in the piping plover Critical Habitat 
begins at the Lexington bridge and extends to the Platte's confluence 
with the Missouri River 252 mi (405.5 km) downstream. About one-fourth 
of this part of the Platte is already designated as critical habitat 
for the whooping crane (Grus americana), including a 3-mi wide (4.8-km) 
north-south buffer starting at a western boundary south of Lexington 
east to south of Shelton. Ownership is primarily private, including 
28.5 mi (45.9 km) which is managed as conservation land by The Nature 
Conservancy, Platte River Whooping Crane Habitat Maintenance Trust, 
Central Nebraska Public Power and Irrigation District, Nebraska Public 
Power District, and the National Audubon Society's Lillian Annette Rowe 
Sanctuary. The State of Nebraska owns 8 mi (12.9 km) along the Platte 
River, which is primarily under the jurisdiction of the Nebraska Game 
and Parks Commission. Essential nesting habitat is dispersed throughout 
this unit.

North Dakota

    Units 1-10 in North Dakota (described below) include prairie alkali 
lakes and wetlands. These alkali lakes and wetlands are characterized 
as follows--shallow; seasonally to permanently flooded; mixosaline to 
hypersaline chemistry; sandy to gravelly, sparsely vegetated beaches, 
salt-encrusted mudflats, and/or gravelly salt flats; 200 ft (61 m) of 
uplands above the wetlands' high water mark, including springs and fens 
which provide foraging and protective habitat for piping plovers. Sites 
included in this unit are occupied (determined to have nesting piping 
plovers in more than 1 year) by piping plovers. This unit requires 
special management including increasing reproductive success through 
predator exclusion devices, such as nest cages and electric fences, and 
reducing

[[Page 57650]]

vegetation encroachment on nesting beaches through prescribed burning 
or grazing.
    These essential breeding habitats in North Dakota can support more 
than 50 percent of the current known population of the northern Great 
Plains Piping Plover. The proximity of Units 1-10 to the Missouri River 
provides an important ecological link that may allow birds extra 
protection from a severe drought that results in dry wetlands basins. 
As birds experience drought in these units biologists believe birds 
move to the river. Conversely, birds may move to these units when 
Missouri River flows are high.
    Unit ND-1--This unit encompasses approximately 7,456.9 ac (3,017.7 
ha) of 13 alkali lakes and wetlands in Divide and Williams Counties, 
located in the extreme northwestern corner of North Dakota. 
Approximately 1,765.2 ac (714.3 ha) are in public ownership and 5,691.7 
ac (2,303.4 ha) are in private ownership. Of the lands in public 
ownership 1,337.9 ac (541.4 ha) are in Federal ownership (Waterfowl 
Production Areas managed by the Service) and 427.2 ac (172.9 ha) are in 
State ownership. State lands designated include 3.1 ac (1.2 ha) of 
Wildlife Management Areas owned and managed by the North Dakota Game 
and Fish Department and 424.1 ac (171.6 ha) of school lands owned and 
managed by the North Dakota Land Department.
    Unit ND-2--This unit encompasses approximately 20,683.8 ac (8,370.6 
ha) of 14 alkali lakes and wetlands in Burke, Renville, and Mountrail 
Counties, in northwestern North Dakota. Approximately 13,986.5 ac 
(5,660.2 ha) are in public ownership and 6,697.3 ac (2,710.3 ha) are in 
private ownership. Of the lands in public ownership, 13,251.8 ac 
(5,362.9 ha) are in Federal ownership and 734.6 ac (297.3 ha) are in 
State ownership. Federal lands designated include Lostwood and Upper 
Souris National Wildlife Refuges and Waterfowl Productions Areas, both 
owned and managed by the Service. State lands designated include 320.1 
ac (129.5 ha) of Wildlife Management Areas owned and managed by the 
North Dakota Game and Fish Department and 414.4 ac (167.7 ha) of school 
lands owned and managed by the North Dakota Land Department.
    Unit ND-3--This unit encompasses approximately 2,524.5 ac (1,021.6 
ha) of 11 alkali lakes and wetlands in Mountrail and Ward Counties in 
northwestern North Dakota. Approximately 615.9 ac (249.2 ha) are in 
public ownership and 1,908.5 ac (772.3 ha) are in private ownership. Of 
the lands in public ownership, 615.7 ac (249.2 ha) are in Federal 
ownership (Waterfowl Production Areas managed by the Service) and 0.2 
ac (0.08 ha) are in State ownership. State lands designated are owned 
and managed by the North Dakota Game and Fish Department as a Wildlife 
Management Area.
    Unit ND-4--This unit encompasses approximately 5,150.7 ac (2,084.4 
ha) of eight alkali lakes and wetlands in McLean County in north-
central North Dakota. Approximately 1,292.6 ac (523.1 ha) are in public 
ownership and 3,858 ac (1,561.3 ha) are in private ownership. Of the 
lands in public ownership, 752.1 ac (304.3 ha) are in Federal ownership 
(Waterfowl Production Areas managed by the Service) and 540.5 ac (218.7 
ha) are in State ownership. State lands designated include 435.5 ac 
(176.2 ha) of Wildlife Management Areas owned and managed by the North 
Dakota Game and Fish Department and 104.9 ac (42.4 ha) of school lands 
owned and managed by the North Dakota Land Department. The John E. 
Williams Preserve, owned and managed by The Nature Conservancy 
(private), also is included in this unit.
    Unit ND-5--This unit encompasses approximately 3,925.6 ac (1,588.7 
ha) of 10 alkali lakes and wetlands in McHenry and Sheridan Counties in 
north-central and central North Dakota. Approximately 406.8 ac (164.6 
ha) are in public ownership and 3,518.8 ac (1,424 ha) are in private 
ownership. All public lands are in Federal ownership with 34.4 ac (13.9 
ha) owned and managed by the Service as Waterfowl Production Areas and 
372.4 ac (150.7 ha) owned by the BOR and managed by the North Dakota 
Game and Fish Department as a Wildlife Management Area.
    Unit ND-6--This unit encompasses approximately 6,075.2 ac (2,458.6 
ha) of 11 alkali lakes and wetlands in Benson and Pierce Counties, in 
northeastern North Dakota. Approximately 767.3 ac (310.5 ha) are in 
public ownership and 5,307.9 ac (2,148 ha) are in private ownership. Of 
the lands in public ownership, 724.8 ac (293.3 ha) are in Federal 
ownership and 42.5 ac (17.2 ha) are in State ownership. State lands 
designated include 20.7 ac (8.4 ha) of Wildlife Management Areas owned 
and managed by the North Dakota Game and Fish Department and 21.7 ac 
(8.79 ha) of school lands owned and managed by the North Dakota Land 
Department.
    Unit ND-7--This unit encompasses approximately 30,125.7 ac 
(12,191.7 ha) of nine alkali lakes and wetlands in Burleigh and Kidder 
Counties, in south-central North Dakota. Approximately 20,012.1 ac 
(8,089.8 ha) are in public ownership and 10,113.5 ac (4,092.9 ha) are 
in private ownership. Of the lands in public ownership, 18,113.1 ac 
(7,330.3 ha) are in Federal ownership (Waterfowl Production Areas 
managed by the Service) and 1,898.9 ac (768.5 ha) are in State 
ownership. State lands designated include 1,247.9 ac (505 ha) of 
Wildlife Management Areas owned and managed by the North Dakota Game 
and Fish Department and 650.9 ac (263.4 ha) of school lands owned and 
managed by the North Dakota Land Department. Federal lands designated 
include Long Lake National Wildlife Refuge and Waterfowl Production 
Areas owned and managed by the Service.
    Unit ND-8--This unit encompasses approximately 4,056.7 ac (1,641.7 
ha) of three alkali lakes and wetlands in Stutsman County, in south-
central North Dakota. Approximately 3,593.6 ac (1,454.3 ha) are in 
public ownership and 463.1 ac (187.4 ha) are in private ownership. Of 
the lands in public ownership, 3,583.8 ac (1,450.3 ha) are in Federal 
ownership and 9.7 ac (3.9 ha) are in State ownership. Federal lands 
designated include Chase Lake and Arrowwood National Wildlife Refuges 
and Waterfowl Production Areas owned and managed by the Service. State 
lands designated include 7.9 ac (3.2 ha) of school lands owned and 
managed by the North Dakota Land Department and 1.8 ac (0.7 ha) of 
Wildlife Management Areas owned and managed by the North Dakota Game 
and Fish Department.
    Unit ND-9--This unit encompasses approximately 2,658 ac (1,075.6 
ha) of six alkali lakes and wetlands in Logan and McIntosh Counties in 
south-central North Dakota. Approximately 732.5 ac (296.4 ha) are in 
public ownership and 1,925.5 ac (779.2 ha) are in private ownership. Of 
the lands in public ownership, 497.7 ac (201.4 ha) are in Federal 
ownership (Waterfowl Production Areas managed by the Service) and 234.7 
ac (95 ha) are in State ownership (Wildlife Management Areas managed by 
the North Dakota Game and Fish Department.
    Unit ND-10--This unit encompasses approximately 641.6 ac (259.6 ha) 
of one alkali lake in Eddy County in northeastern North Dakota. 
Approximately 6.8 ac (2.7 ha) are in public ownership as a Waterfowl 
Production Area managed by the Service and 634.7 ac (256.8 ha) are in 
private ownership.

Missouri River Units

    Missouri River Units--Missouri River units consist of riverine and 
reservoir (Fort Peck Lake, Lake Sakakawea and Lake Audubon, Lake Oahe, 
and Lewis and Clark Lake) reaches. All reservoirs

[[Page 57651]]

except Lake Audubon are mainstem impoundments, constructed by dams, and 
regulated by the Corps. Lake Audubon is a sub-impoundment of Lake 
Sakakawea and is regulated by the BOR through operation of the Snake 
Creek Pumping Plant. Overall the Missouri River has accounted for up to 
31 percent of the northern Great Plains population of piping plovers. 
All of the units are occupied.
    Piping plover habitat within reservoir reaches is composed of 
shorelines, peninsulas, and islands, below the top of the maximum 
operating pool and is owned by the Federal government. These reservoir 
habitats include sparsely vegetated shoreline beaches, peninsulas, 
islands composed of sand, grave, or shale, and their interface with the 
water. These reservoir reaches provide habitat for about 42 percent of 
the piping plovers on the Missouri River.
    Piping plover habitat within riverine reaches consists of inter-
channel islands and sandbars including their temporary pools and 
interface with the river. These habitats are sparsely vegetated and 
consist of sand and gravel substrates. Riverine reaches provide habitat 
for about 58 percent of the piping plovers on the Missouri River. 
Ownership of these sites varies by State. In Montana, islands and 
sandbars are recognized as owned by the State except along the 
reservation boundaries of the Assiniboine and Sioux Tribes of Fort 
Peck. The Assiniboine and Sioux Tribes of Fort Peck own land to the 
mid-channel of the Missouri River adjacent to the Reservation boundary.
    In North Dakota and South Dakota, islands and sandbars are 
recognized as owned by the State. Four Tribes along the Missouri River 
in North Dakota and South Dakota have critical habitat designated 
within the boundary of their reservation including the Standing Rock 
Sioux Tribe, and the Three Affiliated Tribes (Mandan, Hidatsa, and 
Arikara Tribes) of the Ft. Berthold Reservation, the Cheyenne River 
Sioux Tribe, and the Yankton Sioux Tribe. Additionally, these Tribes 
have land or Tribal trust land on submerged sites or sandbars/islands 
within the critical habitat designation of the Missouri River in North 
and South Dakota. In Nebraska, islands and sandbars are owned by the 
adjacent landowner including the Santee Sioux Tribe.

Montana

    Unit MT-2--This unit encompasses approximately 125.4 mi (201.8 km) 
from just west of Wolf Point, McCone County, Montana, at RM 1712.0 
downstream to the Montana/North Dakota border, Richland County, 
Montana, and McKenzie County, North Dakota, at RM 1586.6. The Missouri 
River in this unit flows through reservation land of the Assiniboine 
and Sioux Tribes of Fort Peck (81.7 mi (131.5 km)), State land, and 
privately owned land.
    Unit MT-3, Fort Peck Reservoir--This unit encompasses approximately 
77,370 ac (31,311 ha) of Fort Peck Reservoir, located entirely within 
the Charles M. Russell National Wildlife Refuge which is in Federal 
ownership, managed by the Service.

North Dakota

    Unit ND-11, Missouri River--Approximately 354.6 mi (570.6 km) from 
the Montana/North Dakota border just west of Williston, McKenzie 
County, North Dakota, at RM 1586.6 downstream to the North Dakota/South 
Dakota border in Sioux and Emmons Counties, North Dakota, and Corson 
and Campbell Counties, South Dakota, at RM 1232.0. Lake Sakakawea, Lake 
Audubon, and Lake Oahe are included in this unit, along with a free-
flowing stretch of the Missouri River from RM 1389 to 1302 (Garrison 
Reach). The North Dakota Game and Fish Department manages the north 
half of Audubon Reservoir and the Service manages the south half of 
Audubon Reservoir. The Missouri River and associated reservoirs in this 
unit include 6.83 mi (11 km) of shoreline (right and left bank) of 
trust land and 77 liner rm (123.9 km) within the reservation boundary 
of the Three Affiliated Tribes of Fort Berthold and 23.22 mi (37.37 km) 
of shoreline on trust land and 38 linear rm (61.16 km) within the 
reservation boundary of Standing Rock Sioux Tribe and 20 mi (32.19 km) 
of shoreline on trust land. A mix of State and privately owned lands 
also are included in this unit.

South Dakota

    Unit SD-1 Missouri River--Approximately 159.7 mi (257 km) from the 
North Dakota/South Dakota border northeast of McLaughlin, Corson 
County, South Dakota, at RM 1232.0 downstream to RM 1072.3, just north 
of Oahe Dam (Oahe Reservoir). The Missouri River and associated 
reservoirs in this unit include 3.22 mi (5.18 km) of shoreline (right 
bank) on trust land and 41 linear mi (65.98 km) within the reservation 
boundary of the Standing Rock Sioux and 23.44 mi (37.72 km) of 
shoreline (right bank) on trust land and 77 linear mi (123.92 km) 
within the reservation boundary of Cheyenne River Sioux Tribe. A mix of 
State and privately owned lands also are included in this unit.
    Unit SD-2, Missouri River--Approximately 127.8 mi (204.4 km) from 
RM 880.0, at Fort Randall Dam, Bon Homme and Charles Mix Counties, 
South Dakota, downstream to RM 752.2 near Ponca, Dixon County, 
Nebraska. One mainstem Missouri River reservoir, Lewis and Clark Lake, 
and two riverine reaches (Fort Randall and Gavins Point) are included 
in this unit. In addition to the 127.8 mi (204.4 km) that border South 
Dakota on the left bank there are approximately 7.8 mi (12.4 km) of 
river bordering South Dakota on the right bank. All islands and 
sandbars in South Dakota are in State ownership with the exception of 
60.36 mi (97.14 km) of shoreline (left bank) on trust land and 34 
linear miles (54.72 km) within the reservation boundary of the Yankton 
Sioux Tribe. Approximately 120 mi (192 km) (right bank) of river border 
Nebraska. Sandbars and islands in Nebraska (State line extends to mid-
channel) belong to the adjacent landowner. Approximately 16 linear mi 
(25.75 km) (right bank) of river below Ft. Randall Dam are within the 
boundary of the Santee Sioux Reservation, including 0.05 mi (0.08 km) 
of shoreline on trust land.

[[Page 57652]]



  Table 1.--Critical Habitat Units for the Piping Plover in United States Great Plains States Summarized by Federal, State, County, Private, and Other
                                                                        Ownership
                                                        [Ownership--linear river miles and acres]
                                                             (Percentage within each State)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Tribal  (Reservation
                                            Federal                  State                 boundary)               Private                 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minnesota.........................  0                       235.2 ac                0                       0                      235.2 ac
                                                            (95.2 ha)                                                              (95.2 ha)
                                                            (100%)
Montana...........................  94,021.4 ac             295.1 ac                0                       5,571.0 ac             99,887.5 ac
                                    (38,049.2 ha)           (119.4 ha)                                      (2,254.5 ha)           (40,423.1 ha)
                                    (94.1%)                 (0.3%)                                          (5.6%)
--Ft. Peck Reservoir (Missouri      77,370.0 ac             ......................  ......................  .....................  .....................
 River).                            (31,310.6 ha)
--All other habitat...............  16,651.4 ac             ......................  ......................  .....................  .....................
                                    6,738.6 ha)
North Dakota......................  39,291.2. ac            3,888.7 ac              0                       40,119.4 ac            83,299.3 ac
                                    (15,900.95 ha)          (1,573.8 ha)                                    (16,236.1 ha)          (33,710.8 ha)
                                    (47.2%)                 (4.7%)                                          (48.1%)
Missouri River \1\ \2\............  460.2 mi                307.3 mi                 503.7 mi \2\           0                      767.5 mi
                                    (740.6 km)              (494.6 km)              (810.6 km)                                     (1,235.2 km)
Nebraska..........................  0                       13.0 mi                 5.0                     427.0 mi               440.0 mi
                                                            (20.9 km)               (8.05 km)               (687.2 km)             (708.1 km)
                                                            (2.8%)                  (0.01%)                 (97%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Missouri River includes portions of Montana, North Dakota, South Dakota, and Nebraska. Ownership of these sites varies by State. The Federal
  government owns the reservoir shorelines below the maximum operating pool. In Montana, islands and sandbars are recognized as owned by the State
  except along the reservation boundaries of the Assiniboine and Sioux Tribes of Fort Peck. The Assiniboine and Sioux Tribes of Fort Peck own land to
  the mid-channel of the Missouri River adjacent to the Reservation boundary. In North Dakota and South Dakota, islands and sandbars are recognized as
  owned by the State. However, Tribal trust lands in these States under the Submerged Lands Act (43 U.S.C. 1301-1356) are recognized as held by the
  United States for benefit of the Tribe In Nebraska, islands and sandbars are owned by the adjacent landowner.
\2\ Missouri River uses linear miles and opposite banks can be shared by States or Tribes. The overall total miles of river (767.5) is correct but
  percentages were not calculated because of the shared linear mileage.


  Table 2.--Location, Ownership, and Estimated Length (or area) of Piping Plover Critical Habitat Areas Mapped
                                      Within The United States Great Plains
----------------------------------------------------------------------------------------------------------------
        Unit and Location                County           Land ownership        Est length (mi) or area  (ac)
----------------------------------------------------------------------------------------------------------------
MN-1:
    Rocky Point.................  Lake of the Woods..  State..............  112.6 ac (45.6 ha)
    Morris Point................  ...................  State..............  22.2 ac (9.0 ha)
    Pine & Curry Island.........  ...................  State..............  100.4 ac (40.6 ha)
MT-1:
    Sheridan 1..................  Sheridan...........  State, Private.....  734.0 ac (297.0 ha)
    Sheridan 2..................  ...................  Private............  270.9 ac (109.6 ha)
    Sheridan 3..................  ...................  State, Private.....  280.9 ac (113.7 ha)
    Sheridan 4..................  ...................  Private............  452.9 ac (183.3 ha)
    Sheridan 5..................  ...................  Private, Federal...  107.1 ac (43.4 ha)
    Sheridan 6..................  ...................  State, Private.....  507.1 ac (205.2 ha)
    Sheridan 7..................  ...................  Private, Federal...  100.1 ac (40.5 ha)
    Sheridan 8..................  ...................  State, Private,      500.2 ac (202.4 ha)
                                                        Federal.
    Sheridan 9..................  ...................  Private, Federal...  88.1 ac (35.7 ha)
    Sheridan 10.................  ...................  State, Private,      562.1 ac (227.5 ha)
                                                        Federal.
    Sheridan 11.................  ...................  Private............  431.4 ac (174.6 ha)
    Sheridan 12.................  ...................  State, Private.....  375.8 ac (152.1 ha)
    Sheridan 13.................  ...................  State, Private,      1,327.2 ac (537.1 ha)
                                                        Federal.
    Sheridan 14.................  ...................  Private, Federal...  482.7 ac (195.4 ha)
    Sheridan 15.................  ...................  Private............  362.7 ac (146.8 ha)
    Sheridan 16.................  ...................  Federal............  112.1 ac (45.4 ha)
    Sheridan 17.................  ...................  Private, Federal...  565.7 ac (228.9 ha)
    Sheridan 18.................  ...................  State, Federal.....  388.9 ac (157.4 ha)
    Sheridan 19.................  ...................  Federal............  151.9 ac (61.5 ha)
    Sheridan 20.................  ...................  Private, Federal...  11,421 ac (4,622 ha)
MT-2:
    Missouri River..............  McCone, Richland,    State, Tribal......  125.4 mi (201.8 km)
                                   Roosevelt.
MT-3:
    Fort Peck Reservoir.........  Garfield, McCone,    Federal............  77,370.0 ac (31,311.0
                                   Valley.
MT-4:
    Bowdoin NWR.................  Phillips...........  Federal............  3,294.5 ac (1,333.3 ha)

[[Page 57653]]

 
ND-1:
    Divide 1....................  Divide.............  Private............  429.1 ac (173.6 ha)
    Divide 2....................  ...................  Private, Federal...  355.0 ac (143.6 ha)
    Divide 3....................  ...................  Private, Federal...  485.2 ac (196.4 ha)
    Divide 4....................  ...................  Private............  526.7 ac (213.2 ha)
    Divide 5....................  ...................  Private............  421.9 ac (170.7 ha)
    Divide 6....................  ...................  Private, Federal...  1,278.0 ac (517.2 ha)
    Divide 7....................  ...................  Private............  543.1 ac (219.8 ha)
    Divide 8....................  ...................  Private, Federal...  130.1 ac (52.7 ha)
    Divide 9....................  ...................  Private, Federal...  1,028.8 ac (416.3 ha)
    Divide 10...................  ...................  Private............  855.5 ac (346.2 ha)
    Williams 1..................  Williams...........  Private............  149.0 ac (60.3 ha)
    Williams 2..................  ...................  State, Private.....  586.1 ac (237.2 ha)
    Williams 3..................  ...................  Private, Federal...  668.4 ac (270.5 ha)
ND-2:
    Burke 1.....................  Burke..............  Private, Federal...  505.6 ac (204.6 ha)
    Burke 2.....................  ...................  Private, Federal...  1,017.5 ac (411.8 ha)
    Burke 3.....................  ...................  Federal............  61.4 ac (24.8 ha)
    Mountrail 1.................  Mountrail..........  Private, Federal...  726.2 ac (293.9ha)
    Mountrail 2.................  ...................  State, Private,      1,633.9 ac (661.2 ha)
                                                        Federal.
    Mountrail 3.................  ...................  Private............  2,829.0 ac (1,144.9 ha)
    Mountrail 4.................  ...................  Private, Federal...  227.1 ac (91.9 ha)
    Mountrail 5.................  ...................  Private, Federal...  475.4 ac (192.4 ha)
    Mountrail 6.................  ...................  State, Private,      1,122.9 ac (454.4 ha)
                                                        Federal.
    Mountrail 7.................  ...................  State, Private,      457.5 ac (185.1 ha)
                                                        Federal.
    Mountrail 8.................  ...................  Private, Federal...  362.8 ac (146.8 ha)
    Mountrail 9.................  ...................  Private, Federal...  503.0 ac (203.6 ha)
    Mountrail 10................  ...................  Private, Federal...  289.2 ac (117.0 ha)
    Renville 1..................  Renville...........  Federal............  10,472.4 ac (4,238.1 ha)
ND-3:
    Mountrail 11................  Mountrail..........  Private, Federal...  436.5 ac (176.7 ha)
    Ward 1......................  Ward...............  Private, Federal...  270.6 ac (109.5 ha)
    Ward 2......................  ...................  Private............  287.1 ac (116.2 ha)
    Ward 3......................  ...................  Private............  69.7 ac (28.2 ha)
    Ward 4......................  ...................  Private............  138.2 ac (55.9 ha)
    Ward 5......................  ...................  State, Private,      135.5 ac (54.8 ha)
                                                        Federal.
    Ward 6......................  ...................  Private............  446 ac (180.5 ha)
    Ward 7......................  ...................  Private............  56.9 ac (23.0 ha)
    Ward 8......................  ...................  Private, Federal...  235.1 ac (95.2 ha)
    Ward 9......................  ...................  Federal............  134.7 ac (54.5 ha)
    Ward 10.....................  ...................  Private, Federal...  314.2 ac (127.2 ha)
ND-4:
    McLean 1....................  McClean............  Private, Federal...  310.9 ac (125.8 ha)
    McLean 2....................  ...................  Private............  245.2 ac (99.2 ha)
    McLean 3....................  ...................  State, Private,      542.5 ac (219.5 ha)
                                                        Federal.
    McLean 4....................  ...................  Private, Federal...  476.7 ac (192.9 ha)
    McLean 5....................  ...................  State, Private,      2,705.2 ac (1,094.8
                                                        Federal.
    McLean 6....................  ...................  State, Private,      620 ac (250.9 ha)
                                                        Federal.
    McLean 7....................  ...................  State, Private.....  62.1 ac (25.1 ha)
    McLean 8....................  ...................   Private, Federal..  188.3 ac (76.2 ha)
ND-5:
    McHenry 1...................  McHenry............  Private............  690.9 ac (279.6 ha)
    McHenry 2...................  ...................  Private............  400.0 ac (161.9 ha)
    McHenry 3...................  ...................  Private............  149.5 ac (60.5 ha)
    McHenry 4...................  ...................  Private............  238.8 ac (96.6ha)
    Sheridan 1..................  Sheridan...........  Private............  488.2 ac (197.6 ha)
    Sheridan 2..................  ...................  Private, Federal...  466.6 ac (188.8 ha)
    Sheridan 3..................  ...................  Private, Federal...  1,119.3 ac (453 ha)
    Sheridan 4..................  ...................  Federal............  231.5 ac (93.7 ha)
    Sheridan 5..................  ...................  Federal............  22.8 ac (9.2 ha)
    Sheridan 6..................  ...................  Federal............  118.1 ac (47.8 ha)
ND-6:
    Benson 1....................  Benson.............  State, Private,      500.4 ac (202.5 ha)
                                                        Federal.
    Benson 2....................  ...................  Private, Federal...  172.0 ac (69.6 ha)
    Benson 3....................  ...................  Private, Federal...  282.9 ac (114.5 ha)
    Benson 4....................  ...................  State, Private,      474.5 ac (192.0 ha)
                                                        Federal.
    Benson 5....................  ...................  Private, Federal...  92.9 ac (37.6 ha)
    Benson 6....................  ...................  Private, Federal...  254.5 ac (103.0 ha)
    Benson 7....................  ...................  Private, Federal...  1,899.6 ac (768.7 ha)
    Pierce 1....................  ...................  Private, Federal...  323.9 ac (131.1 ha)

[[Page 57654]]

 
    Pierce 2....................  ...................  Private............  546.5 ac (221.2 ha)
    Pierce 3....................  ...................  Private............  443.2 ac (179.4 ha)
    Pierce 4....................  ...................  Private, Federal...  1,084.9 ac (439.1 ha)
ND-7:
    Burleigh 1..................  Burleigh...........  State, Private,      1,061 ac (429.4 ha)
                                                        Federal.
    Burleigh 2..................  ...................  Private, Federal...  285.4 ac (115.5 ha)
    Burleigh 3..................  ...................  State, Private,      2,162.1 ac (875.0 ha)
                                                        Federal.
    Burleigh 4..................  ...................  State, Private.....  10,558.7 ac (4273.1
    Kidder 1....................  Kidder.............  State, Private.....  5,375.1 ac (2,175.3
    Kidder 2....................  ...................  State, Private,      629.2 ac (254.6 ha)
                                                        Federal.
    Kidder 3....................  ...................  Private, Federal...  1,251 ac (506.3 ha)
    Kidder 4....................  ...................  Private............  11,44.2 ac (463.1 ha)
    Kidder 5....................  ...................  Private, Federal...  7,658.9 ac (3099.5 ha)
ND-8:
    Stutsman 1..................  Stutsman...........  Federal............  1,117.6 ac (452.3 ha)
    Stutsman 2..................  ...................  Federal............  2,370.2 ac (959.2 ha)
    Stutsman 3..................  ...................  State, Private,      569 ac (230.3 ha)
                                                        Federal.
ND-9:
    Logan 1.....................  Logan..............  Private............  295.1 ac (119.4 ha)
    Logan 2.....................  ...................  Private, Federal...  998.6 ac (404.1 ha)
    Logan 3.....................  ...................  Private, Federal...   254.4 ac (103.0 ha)
    Logan 4.....................  ...................  State, Private.....  250.8 ac (101.5 ha)
ND-10:
    McIntosh 1..................  McIntosh...........  Private, Federal...  501.9 ac (203.1 ha)
    McIntosh 2..................  ...................  Private............  357.2 ac (144.5 ha)
    Eddy 1......................  Eddy...............  Private, Federal...  641.6 ac (259.7 ha)
ND-11:
    Missouri River:
    Fort Peck Reach.............  McKenzie, Williams.  State..............  18.6 mi (29.9 km)
    Lake Sakakawea & Lake         Dunn, McKenzie,      Federal, Tribal....  179.0 mi (288.0 km)
     Audubon.                      McLean, Mercer,
                                   Mountrial,
                                   Williams.
    --Garrison Reach............  Burleigh, Mercer,    State..............  87.0 mi (140.0 km)
                                   Morton, Oliver.
    --Lake Oahe.................  Emmons, Morton,      Federal, Tribal....  70.0 mi (112.6 km)
                                   Sioux.
NE-1:
    Platte River................  Buffalo, Butler,     State, Private.....  252.0 mi. (405.5km)
                                   Cass, Colfax,
                                   Dawson, Dodge,
                                   Douglas, Gosper,
                                   Hall, Hamilton,
                                   Kearney, Merrick,
                                   Phelps, Platte,
                                   Polk, Sarpy,
                                   Saunders.
    Loup River..................  Howard, Nance,       State, Private.....  68.0 mi (109.4 km)
                                   Platte.
    Niobrara River..............  Boyd, Brown, Holt,   State, Private,      120.0 mi (193.0 km)
                                   Keya Paha, Knox,     Tribal \2\.
                                   Rock.
SD-1:
    Missouri River:
    --Lake Oahe.................  Campbell, Corson,    Federal, Tribal,\2\  159.7 mi (257.0 km)
                                   Dewey, Hughes,
                                   Potter, Stanley,
                                   Sully, Walworth.
SD-2 \1\:
    Missouri River:
    --Fort Randall Reach........  Bon Homme, Charles   State, Tribal,\2\    36.0 mi (57.9 km)
                                   Mix, Gregory.        Private.
    --Lewis and Clark Lake......  Bon Homme, Yankton.  Federal, Tribal,\2\  32.9 mi (52.9 km)
                                                        Private.
    --Gavins Point Reach........  Clay, Yankton......  State, Private.....  58.9 mi (94.8 km)
----------------------------------------------------------------------------------------------------------------
\1\ Approximately 120.0 mi (193.1 km) of river border Nebraska; of that approximately 87.0 mi (140.0 km) have
  shared ownership of sandbars and islands with adjacent private landowners in Nebraska (the other 33.0 mi (53.1
  km) are Lewis and Clark Lake).
\2\ Tribal land details can be found in Unit descriptions.

Effect of Critical Habitat Designation

    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 and section 10 
permits.
    However, designation of critical habitat can help focus 
conservation activities for listed species by identifying areas 
essential to conserve the species. Designation of critical habitat also 
alerts the public, as well as land-managing agencies, to the importance 
of these areas. As a result of critical habitat designation, Federal 
agencies can prioritize landowner incentive programs such as 
Conservation Reserve Program enrollment, grassland and wetland 
easements, and private landowner

[[Page 57655]]

agreements that benefit piping plovers. Critical habitat designation 
also may help States and Tribes in prioritizing their conservation and 
land-management programs.

Section 7 Consultation

    Section 7(a)(2) of the Endangered Species Act requires Federal 
agencies, including the Service, to ensure that actions they fund, 
authorize, or carry out are not likely to jeopardize the continued 
existence of a threatened or endangered species, or result in the 
destruction or adverse modification of critical habitat to the extent 
that the action appreciably diminishes the value of the critical 
habitat for the survival and recovery of the species. Individuals, 
organizations, States, Tribes, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, require a Federal permit, 
license, or other authorization, or involve Federal funding or 
activities carried out by a Federal agency.
    Section 7(a) of the Endangered Species Act requires Federal 
agencies, including the Service, to evaluate their actions with respect 
to any species that is proposed or listed as endangered or threatened 
and with respect to its critical habitat, if any is designated or 
proposed. Regulations implementing this interagency cooperation 
provision of the Endangered Species Act are codified at 50 CFR part 
402. Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. We may issue a formal conference 
report, if requested by the Federal action agency. Formal conference 
reports include an opinion that is prepared according to 50 CFR 402.14, 
as if the species was listed or critical habitat designated. We may 
adopt the formal conference report as the biological opinion when the 
species is listed or critical habitat designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)). If a species is listed or critical habitat is 
designated, section 7(a)(2) requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to jeopardize 
the continued existence of such a species or to destroy or adversely 
modify its critical habitat. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency (action 
agency) must enter into consultation with us. Through this 
consultation, the Federal action agency would ensure that the permitted 
actions do not destroy 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, which are 
consistent with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid resulting in the destruction or 
adverse modification of critical habitat. Reasonable and prudent 
alternatives can vary from slight project modifications to extensive 
redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, or adversely modify or destroy proposed critical 
habitat. Further, some Federal agencies may have conferenced with us on 
proposed critical habitat. We may adopt the formal conference report as 
the biological opinion when critical habitat is designated, if no 
significant new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the northern Great 
Plains breeding population of piping plovers or its critical habitat 
will require section 7 consultation. Activities that, when carried out, 
funded, or authorized by a Federal agency, may destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Any activity that results in changes in the hydrology of the 
unit, including activities associated with drainage activities, flowage 
control (e.g., changes in releases) and operations, flooding, 
hydropower, irrigation, sediment transfer changes or removal, 
construction or maintenance of dams, construction of bridges and 
marinas, dredging, and bank stabilization;
    (2) Any activity that results in development or alteration of the 
landscape within or immediately adjacent to a hydrologic component of 
the unit including activities associated with construction for urban 
and industrial development, roads, marinas, bridges, or bank 
stabilization; agricultural activities (e.g., plowing adjacent to 
prairie wetland); off-road vehicle activity; mining; sale, exchange, or 
lease of Federal land that contains suitable habitat that is likely to 
result in the habitat being destroyed or appreciably degraded;
    (3) Any activity that results in introducing significant amounts of 
emergent vegetation into the unit;
    (4) Any activity that significantly and detrimentally alters water 
quality in the unit;
    (5) Any activity that significantly and detrimentally alters the 
inputs of sediment and nutrients necessary for the maintenance of 
geomorphic and biologic processes that ensure appropriately configured 
and productive systems; and
    (6) Any activity that may reduce the value of a site by 
significantly and detrimentally disturbing plovers from such activities 
as foraging, brooding, and nesting.
    Federal actions not affecting listed species or critical habitat 
and actions on non-Federal lands that are not federally funded or 
authorized or carried out by a Federal agency do not require section 7 
consultation.
    Section 4(b)(8) of the Endangered Species 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 adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat for the survival and recovery of the northern Great Plains 
piping plover. Within critical habitat, this pertains only to those 
areas containing primary constituent elements. We note that such 
activities also may jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must

[[Page 57656]]

first compare the section 7 requirements for actions that may affect 
critical habitat with the requirements for actions that may affect a 
listed species. Section 7 prohibits actions funded, authorized, or 
carried out by Federal agencies from likely jeopardizing the continued 
existence of a listed species or destroying or adversely modifying the 
listed species' critical habitat. Actions likely to ``jeopardize the 
continued existence'' of a species are those that would appreciably 
reduce the likelihood of the species' survival and recovery. Actions 
likely to ``destroy or adversely modify'' critical habitat are those 
that would appreciably reduce the value of critical habitat for the 
survival and recovery of the listed species.
    Given the similarity of these definitions, actions likely to 
destroy or adversely modify critical habitat would usually result in 
jeopardy to the species concerned, particularly when the area of the 
proposed action is occupied by the species concerned. In those cases, 
critical habitat provides little additional protection to a species, 
and the ramifications of its designation are few or none. Designation 
of critical habitat in areas occupied by the northern Great Plains 
piping plover is not likely to result in a regulatory burden above that 
already in place due to the presence of the listed species.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions are not 
likely to jeopardize the continued existence of the species. These 
actions include, but are not limited to:
    (1) Regulations of activities affecting waters of the United States 
by the Corps under section 404 of the Clean Water Act, and Section 10 
of the Rivers and Harbors Act;
    (2) Road and bridge construction and maintenance, right of way 
designation, and regulation of agricultural activities;
    (3) Activities on Federal lands including but not limited to the 
Corps, the BOR, NPS, and Bureau of Land Management;
    (4) Licensing of construction of communication sites by the Federal 
Communications Commission;
    (5) Operations and maintenance of dams by the Corps and the BOR;
    (6) Licensing/Relicensing of dams by the Federal Energy and 
Regulatory Commission;
    (7) Funding of activities by the U.S. Environmental Protection 
Agency, Natural Resource Conservation Service, or any other Federal 
agency; and
    (8) Water development projects by Federal agencies including the 
BOR, BIA, and other Federal agencies.
    All lands designated as critical habitat are within the geographic 
range of the species. In addition, all sites are considered occupied by 
the species and are likely to be used by the piping plover whether for 
foraging, breeding, chick rearing, dispersal, migration, genetic 
exchange, and sheltering. Thus, we do not anticipate additional 
regulatory protection will result from critical habitat designation.
    This section serves in part as a general guide to clarify 
activities that may affect or destroy or adversely modify critical 
habitat. However, specific Federal actions should be reviewed by the 
action agency. If the agency determines the activity may affect 
critical habitat, they will consult with us under section 7 of the 
Endangered Species Act. We will work with the agencies and affected 
public early in the consultation process to avoid or minimize potential 
conflicts and, whenever possible, find a solution that protects listed 
species and their habitat in a manner consistent with the project's 
intended purpose.
    Section 10(a) of the Endangered Species Act authorizes us to issue 
permits for private actions which result in the taking of listed 
species incidental to otherwise lawful activities. Incidental take 
permit applications must be supported by a HCP that identifies 
conservation measures that the permittee agrees to implement for the 
species to minimize and mitigate the impacts of the requested 
incidental take. Currently, no approved HCPs cover the northern Great 
Plains piping plover or its habitat. In the event that HCPs covering 
the northern Great Plains piping plover are developed in the future 
within the designated critical habitat, we will work with applicants to 
ensure the HCPs provide for protection and management of habitat areas 
essential for the conservation of the piping plover, while directing 
development and habitat modification to nonessential areas of lower 
habitat value. The HCP development process provides an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by the piping plover. The process also enables 
us to conduct detailed evaluations of the importance of such lands to 
the long-term survival of the species.
    During the comment period the South Dakota Department of Game Fish 
and Parks and the Ft. Peck Assiniboine and Sioux Tribes of Montana 
expressed an interest in the development of HCPs. We are working with 
both agencies in the development of these plans. When these plans are 
completed, the critical habitat designation could be revisited.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited independent expert opinions from nine persons who 
are familiar with this species and its habitats, to peer-review the 
proposed critical habitat designation. Five responded by the end of the 
comment periods. They provided support for scientific credibility of 
the proposed rule, valuable information about piping plovers, their 
habitats, population biology, and ecology, editorial comments, concerns 
for habitats left out of designation, and editorial comments. These 
comments are addressed in the following section, and relevant data 
provided by the reviewers have been incorporated throughout the rule.

Summary of Comments and Recommendations

    In the June 12, 2001, proposed rule (66 FR 31760), we requested all 
interested parties to submit comments on the specifics of the proposal 
including information, policy, and proposed critical habitat boundaries 
a provided in the proposed rule. The first comment period closed August 
13, 2001, allowing for 60 days for review and comment. The comment 
period was reopened for 30 days, from December 28, 2001, to January 28, 
2002 (Federal Register 66 FR 67165), to allow for additional comments 
on the draft Economic Analysis of the proposed critical habitat. 
However, before that reopening the Service's web sites and electronic 
mail were disconnected in response to a court order in an unrelated 
lawsuit. In response to comments received during the December-January 
comment period the Service sought relief from the courts and the court 
took action extending the time for the final rule. On March 21, 2002, 
we again published a notice in the Federal Register (67 FR 13123) 
extending the comment period for another 60 days until May 20, 2002. 
The total time available for comments totaled 150 days in an 11-month 
time period.
    We contacted all appropriate State and Federal agencies, Tribes, 
County governments, elected officials, and other interested parties and 
invited them to comment during all three comment periods. In addition, 
we invited public comments through the publication of notices in 
newspapers in Montana, North Dakota, South Dakota, Nebraska, Minnesota, 
and in a Tribal newspaper, Indian Country Today. In these notices and 
the proposed rule, we announced the dates and times of five public 
meetings to be held on the proposed

[[Page 57657]]

rule. Their dates and locations are specified above in the section 
``Previous Federal Action.'' We posted copies of the proposed rule, 
draft Environmental Assessment, draft Economic Analysis, associated 
Federal Register notices, fact sheets, and questions and answers 
concerning critical habitat on our internet site http://mountain-prairie.fws.gov/pipingplover.
    We received a total of 395 comments during the three public comment 
periods. Several people submitted comments more than once. In total, 
written comments were received from 6 Federal agencies, 19 State 
agencies, 6 Tribal groups, 1 elected official, 36 local governments, 45 
organizations, and 282 private individuals. Comments were received from 
residents in nine States, with Nebraska sources submitting the most of 
any one State. Four comments were received between comment periods but 
before the end of the final comment period including--one Federal, one 
State, one local government, and comments from Congressional Field 
Hearings in Nebraska. These comments were all considered in the final 
rule.
    All comments received were reviewed for substantive issues and new 
data regarding critical habitat and the biology and status of the 
northern Great Plains breeding population of the piping plover, and 
economic information. We address all relevant comments received during 
the comment periods in the following summary of issues. Comments of a 
similar nature are grouped into a single issue. Comments that we 
incorporated into this final rule are discussed in the ``Summary of 
Changes from Proposed Rule'' section of this document.

Issue 1--Biological Justification and Methodology

    (1A) Comment--Many commenters made reference to the broad scale of 
the proposed critical habitat making the designation vague because it 
includes areas that do not contain the primary constituent elements for 
the Northern Great Plains population of piping plovers. Further 
comments were made that designated areas considered not only areas 
where piping plovers were never observed but excluded areas where 
piping plovers have been observed. Additional commenters said the maps 
were not specific enough for comment.
    Response--We recognize that not all land within designated critical 
habitat mapped units contains habitat components essential to piping 
plover conservation. Because they do not contain the primary 
constituent elements these lands are not being designated as critical 
habitat.
    We are required to designate critical habitat based on the best 
available information and to describe the critical habitat with 
specific reference points and specific definable boundaries (50 CFR 
424.12(c)). Because landowners in the northern Great Plains are most 
familiar in the use of township, range, and section descriptions, we 
used this method in the legal descriptions to help landowners identify 
their lands in relationship to the mapped critical habitat designation. 
Further description and clarification are provided in the final rule 
through better descriptions of mapped habitat units; the addition of 
township, range, and sections on the alkali lakes and wetlands maps; 
the addition of UTM coordinates placed in the center of alkali lakes 
and wetlands; and better location descriptions (i.e., bridge names) on 
the Platte and Niobrara Rivers.
    We also used information gathered during the public comment period 
to more accurately define the written critical habitat boundaries. We 
evaluated this new information, especially information concerning site 
locations or missing locations, and made appropriate changes. We also 
evaluated new data from the 2001 International Piping Plover Census to 
further document occurrences in different areas.
    Despite our efforts to exclude all areas from critical habitat unit 
boundaries that do not contain the primary constituent elements for the 
piping plover, it is not practical to develop unit boundaries and 
provide maps and legal descriptions that exclude all developed areas 
such as towns, housing developments, or other developed lands unlikely 
to provide for the piping plover. We defined critical habitat unit 
boundaries as specific as practical given the time constraints imposed 
by the Court, workforce and time limitations, the absence of detailed 
Geographic Information System coverage in all areas and the dynamic 
nature of piping plover habitat. However, some areas not essential to 
conservation of piping plovers were included within critical habitat 
boundaries but they are not critical habitat.
    However, developed areas such as main stem dam structures, 
buildings, marinas, paved areas, boat ramps, piers, bridges, bank 
stabilization and breakwater structures, regularly row cropped or 
plowed agricultural areas, mines, roads and other lands included in the 
textural description (e.g., high bank bluffs along Missouri River 
reservoirs) which do not contain the primary constituent elements are 
not being designated as critical habitat.
    Most important, the habitats used by the piping plover in the 
northern Great Plains, as explained in this rule, are highly dynamic. 
By using a coarser approach to the mapping effort and refining the 
critical habitat boundaries by describing those habitat features 
(primary constituent elements) essential to the plover's life-history 
requirements, critical habitat designation will accommodate the dynamic 
nature of the habitat changing through time as primary constituent 
elements form in one area while disappearing in another. We believe 
this approach is the only scientifically credible way to ensure the 
critical habitat designation reflects the species habitat's naturally 
ephemeral character.
    All maps are footnoted with the following clarifying statement, 
``Critical habitat is designated only in areas where the primary 
constituent elements are present.'' This statement reinforces our 
regulations at 50 CFR 17.94(c), which indicate critical habitat focuses 
only on the biological and physical constituent elements within the 
defined area of critical habitat.
    In regard to the presence or absence of piping plovers in 
designated areas, we reviewed all the available survey data since the 
mid-1980s when the species was listed. Because piping plover breeding 
habitats are highly variable, use of these areas by piping plovers also 
is highly variable. Both the definition of critical habitat in the 
Endangered Species Act and the implementing regulations indicate that 
critical habitat is a specific geographic area(s) that is essential for 
the conservation of a threatened or endangered species and that may 
require special management. The term ``conservation'' is defined under 
section 3(3) of the Endangered Species Act as the measures necessary to 
bring a species to the point that its protection under the Endangered 
Species Act is no longer necessary. The northern Great Plains breeding 
populations of piping plovers current site distribution from a range 
perspective is adequate to achieve recovery but piping plover numbers 
are not adequate to achieve recovery. However, areas designated contain 
enough of the primary constituent elements to ensure the recovery of 
the species can be met within the broad delineated areas. Despite the 
presence of plovers, areas were excluded from designation based on one 
or more of the following--(1) a management plan exists for those areas 
that would ensure the species conservation; (2) areas we could not 
determine whether the sites

[[Page 57658]]

were a sink (i.e., areas that attract birds but do not contribute to 
population productivity) or source for population growth (Kansas River 
and Colorado Reservoirs); (3) areas where previous breeding was 
considered an anomaly and insignificant to the species conservation 
(e.g., parking lots and roads); (4) areas that could not support 
plovers in the long term (e.g., sites with limited history or minimal 
potential because of their temporary nature; this includes fly-ash pits 
and sandpits); and (5) areas consistently surveyed but did not have 
more than 1 year of nesting (e.g., some alkali wetlands).
    We also conducted additional evaluation of the selection criteria 
used for designation of alkali wetlands in North Dakota and Montana. We 
included an area in the proposed critical habitat designation if data 
showed birds at sites in 2 out of 10 years. The 10-year period was 
chosen because in the northern Great Plains most 10-year periods 
encompass both wet and dry cycles. These cycles are the basis for the 
dynamic nature of prairie alkali lakes and wetlands, and the resulting 
shift in use by piping plovers from 1 year to the next and to different 
habitat types. The critical habitat criteria were designed to reflect 
the dynamic nature of water regimes in alkali lakes and wetlands that 
provide suitable shoreline habitat. The 2-year period was chosen 
because it demonstrated a consistent pattern of use by breeding piping 
plovers over a 10-year period. We also had supporting data that most of 
the sites used by breeding piping plovers also were used as nesting, 
foraging, and/or brood rearing habitat. Sites where plovers were 
observed in only 1 year generally had few birds and no records of 
nesting. Further, this criteria is consistent with criteria established 
for identifying habitat in Minnesota on the Lake of the Woods.
    Our review of the data found plover use of alkali wetlands is 
evenly distributed among the number of years birds were observed at a 
site. Thus plover use on alkali lakes breeding grounds is not standard 
and reflects the natural variation of the northern Great Plains 
ecosystem. Our review also indicated we did not apply the alkali lakes 
criteria consistently during our initial review for the proposed rule. 
For example, several sites were proposed as critical habitat that do 
not meet the criteria. This sites have been eliminated from the final 
critical habitat designation. Also, our habitat mapping criteria was 
further refined and are reflected in this final rule.
    (1B) Comment--Designating critical habitat for the piping plover 
will result in such high public animosity that the designation will 
cause more harm to the species than benefit.
    Response--We agree that public support is a vital component of 
protection of federally listed species and their habitat, but, by 
statute and court order, we must designate critical habitat. We believe 
most concerns are based on misunderstanding of critical habitat. To 
clear up these misunderstanding and to increase public support for 
piping plovers, we expanded out outreach programs to address those 
issues.
    (1C) Comment--Many expressed general concerns about the lack of 
data to support the proposed designation of critical habitat, making 
the proposed rule seem arbitrary.
    Response--In accordance with section 3(5)(A)(i) of the Endangered 
Species Act and regulations at 50 CFR 424.12, we based this critical 
habitat determination on the best scientific and commercial data 
available at the time of designation. The designation identifies areas 
essential to the conservation of the species. As discussed below, peer 
reviewers concurred that the most current biological information was 
used for the designation.
    The data upon which the designation was made is available for 
review at the South Dakota Ecological Services Field Office (see 
ADDRESSES section).
    (1D) Comment--There were many comments about unoccupied habitat 
being designated as critical habitat on the Platte River. Specifically, 
some were opposed to the blanket coverage of the Platte River, and 
recommended that only colony sites be identified.
    Response--Based on comments received both from commenters and peer 
reviewers, adjustments have been made. The Platte River unit now 
extends from near the town of Lexington to Plattsmouth. In the proposed 
rule the Platte River reach started from near the town of Cozad. This 
change shortens the Platte River reach by 14 mi. Habitats used by the 
piping plover in the northern Great Plains are highly dynamic. 
Designating such a long reach of the Platte River is necessary because 
of the highly ephemeral nature of shifting sandbars and river channels. 
Because habitats shifts, nesting does not always occur in the same 
location year after year. Birds may relocate within a given nesting 
season, and will utilize a variety of habitats during the course of the 
nesting season. The concept of critical habitat is to identify critical 
portions of the functioning habitat as a whole rather than individual 
fragments which do not function as a whole. Therefore, our approach has 
identified larger areas, portions of which have the potential to 
support nesting and foraging in any given year. This approach will 
accommodate the dynamic nature of the habitat. The extent of actual 
critical habitat within the broad area is further defined and limited 
by the primary constituent elements. We believe this approach is the 
only scientifically credible way to ensure that the critical habitat 
designation reflects the plovers' naturally ephemeral habitat.
    (1E) Comment--One commenter stated that in the Service's attempt to 
identify site specific areas, we overlooked the larger picture of areas 
essential to the conservation of the species. In effect this commenter 
believes that areas were excluded from critical habitat because of a 
narrow focus of the primary constituent elements that falls to address 
the ``dynamic nature of the habitat.''
    Response--The Service disagrees that our focus on habitat is 
narrow. The ``dynamic nature'' of piping plover critical habitats was 
considered in the proposed rule. However, changes have been made in the 
final rule to use the ``dynamic ecological process'' that create and 
maintain habitat as an overriding primary constituent element that must 
be present at all sites. These processes develop a mosaic of habitats 
that provide the essential combination of prey, forage, nesting, 
brooding and chick-rearing for the long term. Without these dynamic 
processes, sites would not be able to develop and support the other 
constituent elements.
    (1F) Comment--Piping plover habitat has increased since historic 
times, why put on added restrictions?
    Response--The historic and current record for the piping plover 
indicates the range of the piping plover may have slighlty expanded as 
birds have pioneered new sites, but the amount of habitat has 
significantly decreased. However, biologists are not certain the new 
site locations are range expansions as the historic record for this 
species is limited. Habitat loss was one of the primary reasons for 
listing the piping plover and is most apparent on our river systems. 
Many of the river systems that were historically occupied by piping 
plovers have been altered resulting in significant decline in the 
acreage of sparsely vegetated sandbar nesting habitat. Some 
documentation of the historic record is in the background section of 
this final rule. Additional historic information that formed the basis 
for this critical habitat designation is available in our files at the 
South Dakota Ecological Services Field Office (see ADDRESSES section).

[[Page 57659]]

    (1G) Comment--One commenter suggested identifying instream flow 
requirements in the primary constituent elements specifically as they 
relate to riverine habitats.
    Response--We did not identify specific instream flows in the 
primary constituent elements because of the complexity of identifying 
the specific instream flow needed for each river system, and that 
instream flow requirements should be adaptive, not codified as a rule. 
Instream flow needs would have to change as the nature and the 
character of the channel changes with time, accounting for climate 
seasonality and changes. Identifications of such instream needs are 
better settled on a location by location basis. However, we do consider 
instream flows as a component of the dynamic ecological processes that 
occur in all piping plover habitats and as an overriding primary 
constituent element. Riverine habitats are maintained by dynamic 
processes of continuous bank erosion and deposition that constantly 
reshape the channel and create unvegetated sandbars and islands. These 
dynamic processes rely on instream flows in riverine systems. 
Therefore, instream flows are part of the primary constituent elements.
    (1H) Comment--The Great Lakes and Northern Great Plains Recovery 
Plan is not a final document and should not be referenced.
    Response--The Great Lakes and Northern Great Plains Recovery Plan 
was finalized in 1988. A 1994 revised draft plan with updated 
information on the species was distributed for public comment. 
Subsequently, we decided that the recovery of these two inland 
populations would benefit from separate recovery plans. Although 
individual recovery plans are in development for these two populations, 
they have not been completed. The 1994 revised draft plan and our 
current workings on a new plan contain the best information available. 
We are required to include the most current scientific and commercial 
information when designating critical habitat. Therefore, we believe it 
is important to use the best available information regardless of 
whether a final recovery plan has been approved.
    (1I) Comment--The majority of the critical habitat proposed for 
designation is unsuitable for the plover and contains no primary 
constituent elements.
    Response--We do not agree. The primary constituent elements are 
defined at 50 CFR 424.12(b) as ``principal biological or physical 
constituent elements within the defined area that are essential to 
conservation of the species.'' Primary constituent elements may include 
but are not limited to ``roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quality or quantity, 
host species or plant pollinator, geological formation, vegetation 
type, tide, and specific soil types'' (50 CFR 424.12(b)). However, we 
have modified the primary constituent elements in this final rule to 
provide better understanding. The sites selected for critical habitat 
are suitable for piping plovers and have the primary constituent 
elements.
    (1J) Comment--You cannot define critical habitat by using ephemeral 
reference points.
    Response--We agree, critical habitat must be defined by specific 
limits using reference points and lines as found on standard 
topographic maps of the area. We have done this using river miles, 
township, range, and section, and UTM coordinates depending on the 
different habitat types. In fact the designations as mapped are 
inclusive because we could not designate ephemeral reference points 
like sandbars.
    (1K) Comment--Designation of piping plover critical habitat ignores 
the requirement that the Service limit the geographic scope of the 
designation. The Service must designate with precision or violate 
applicable law.
    Response--We have limited the geographic scope to include only 
occupied areas within the present range of the species. Furthermore, we 
believe we have designated within as precise a manner as possible 
within the law and given the ephemeral nature of piping plover critical 
habitat and time constraints by the court.
    (1L) Comment--Dynamic ``processes'' cannot be primary element 
elements.
    Response--We disagree. The dynamic ecological processes are 
essential to the conservation of the piping plover. These processes are 
the basis for the formation of plover habitat. When considering 
critical habitat, we are to focus on the principal and physical 
constituent elements that are essential to the conservation of the 
species. A list of primary constituent elements is included at 50 CFR 
424.12(b). This list is noted in the regulations as not being inclusive 
and includes the example of ``tide'' as a primary constituent element. 
Tides are an ecological process. While it is not the process as we 
define it here as a primary constituent element for the piping plover 
it does establish within the regulation that processes can be included 
as primary constituent elements. In the final rule, we have clarified 
the discussion of the primary constituent elements.
    (1M) Comment--The Service has failed to provide any evidence that 
any given reach of the rivers with potential habitat will ever become 
suitable for nesting, e.g., does not contain the physical or biological 
features for the conservation of the species.
    Response--The Service has documented nesting for piping plovers on 
sandbars in all rivers designated as critical habitat. We did not break 
each river up by reach except for the Missouri River which has a series 
of river and reservoir habitats. We acknowledge that not all areas in 
the designated stretches of river will have nesting piping plovers 
every year. Riverine habitats are maintained by dynamic processes of 
continuous bank erosion and deposition that constantly reshape the 
channel and create unvegetated sandbars and islands. In flood years 
sandbars are eroded and created at higher levels. In drier years some 
sandbars are lower in elevation and subject to rain events while higher 
sandbars become vegetated.
    We acknowledge the commenter's concerns particularly for the 
central Platte River. The central Platte River is presently 
characterized by high elevation sandbars that are characterized by 
woody vegetation and low elevation sparsely vegetated sandbars that are 
subject to seasonal flooding while the other Platte River habitats more 
often have sandbars of elevation that can survive localized flooding 
events. Therefore, at this time plover habitats on other sections of 
the Platte River may supply more reliable nesting habitat for piping 
plovers. Nonetheless, birds continue to be attracted to sandbars in the 
central Platte River despite their having been unsuccessful in much of 
the past 10 years. Plovers have been recorded on the central Platte 
River in all International Piping Plover Censuses (1991, 1996, and 
2001) and in survey years between and before the census (1982-2001).
    Again the dynamic nature of the northern Great Plains is such that 
habitats may be better in one place for a few years and inferior the 
next few years. Ten years is not a significant period of time on the 
northern Great Plains when considering wet and dry cycles. Based on 
experiences in other prairie rivers with sandbar habitat (e.g., 
Missouri River 1996-1997 (Pavelka 2002), central Platte River 1980, 
1983, 1984 (Service 2002) and Lower Platte River 1983, 1984, 1990 
(Sidle et al. 1992), and 1993) we believe that flood or flow events 
will occur on the central Platte that will encourage the movement, 
migration and building up of

[[Page 57660]]

sandbars so that nesting habitat for piping plovers will again be 
created. We also have consulted with hydrologists and sedimentologists 
who have concurred that peak flows that create sandbars/islands will 
again occur on the central Platte (P. Murphy and D. Anderson pers.com comm. 2002).
    It also is prudent to include a contiguous stretch of rivers to 
accommodate the dynamic nature of the habitat, changing through time as 
the habitat features (primary constituent elements sparsely vegetated 
channel sandbars, sand and gravel beaches on islands, temporary pools 
on sandbars and islands, the interface with the river and the dynamic 
processes that create these features) form in one area while 
disappearing in another. We believe this is the only scientifically 
credible way to ensure that critical habitat designation is compatible 
with the species' habitats' naturally ephemeral character.
    (1N) Comment--The Service does not describe the relative potential 
of a given reach's potential for suitability and this commenter 
questions whether river reaches are currently capable of the formation 
of sand bars and islands.
    Response--The Service has records on file documenting piping plover 
use on rivers. A review of this data on rivers shows that nesting 
locations on rivers can change. Over the years the dynamics of rivers 
has been documented in detail (Leopold 1992). However, the integration 
of river dynamics and piping plover habitat suitability has only been 
touched on by researchers. The Corps is currently conducting research 
on the Missouri River to track sandbar habitats in relation to flows. 
Over the years several studies have been completed on the Platte and 
Niobrara Rivers to look at sandbar habitats (Peake et al. 1985, 
Ziewitz, Sidle, and Dinan 1992, Sidle, Carlson, Kirsch, and Dinan 1993, 
Lingle 1993, Adolf 1998). Unfortunately, we have insufficient knowledge 
of the characteristics of most rivers and the effects of our actions 
over the years that alter their form and function. Therefore, 
predicting habitat suitability specifically would be a task beyond this 
critical habitat designation process. However, we do know enough about 
the rivers designated that there is a history of piping plovers nesting 
on sandbar habitats on these rivers and that they will continue to do 
so, so long as river dynamics continue. As noted in the previous 
response we believe the dynamic nature of piping plover habitats on 
rivers and the importance of these dynamic processes will be essential 
to the conservation and recovery of this species.
    (1O) Comment--The rationale for excluding the portion of the 
Missouri River from Ft. Peck Dam to the Milk River could be applied to 
the central Platte River.
    Response--We do not agree. Piping plovers have not been documented 
since listing in the reach of the Missouri River from Ft. Peck Dam to 
the Milk River. Additionally, the aggradation problem is severe in this 
reach and sandbars do not occur. However, in the central Platte piping 
plovers continue to be documented and sandbars are present.
    (1P) Comment--Absence of historic information makes it impossible 
for the Service to determine what if any habitat meets the definition 
of critical habitat.
    Response--We do not agree. ``Critical habitat means (1) the 
specific areas within the geographical area currently occupied by a 
species, at the time it is listed in accordance with the Endangered 
Species 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,'' (50 CFR 
424.02 (d)). All of the areas designated meet this definition. 
Furthermore, historic information is available on the piping plover 
that provides us a good picture of the historic range of this species. 
Historic information can be found in the Geographic Range section of 
this rule or in the Recovery Plan ( Service 1988).
    (1Q) Comment--The Service failed to include a summary of what 
distribution and abundance data it did consider; this should be 
included in the final rule.
    Response--Different aspects of the piping plover's population 
dynamics are discussed but we do not believe that this rule provides a 
forum or location for specific distribution and abundance data. 
Distribution is covered in the ``Geographic Range'' section and 
abundance data is referred to by reference. Abundance data used in our 
review is on file and is available from the South Dakota Ecological 
Services Field Office (see ADDRESSES section).
    (1R) Comment--The Service should provide relevant data regarding 
the magnitude and frequency of flow necessary to create and destroy 
habitat, and regarding any other factor which can influence the primary 
constituent elements.
    Response--It is not within the scope of critical habitat 
designation for us to determine the magnitude and frequency of flows on 
each river that affects the primary constituent elements. However, we 
do consider the dynamic ecological processes that occur in all piping 
plover habitats as an overriding primary constituent element. Riverine 
habitats are maintained by dynamic processes of continuous bank erosion 
and deposition that constantly reshape the channel and create 
unvegetated sandbars and islands. These dynamic processes rely on 
instream flows in riverine systems. Therefore, we have considered 
instream flows as part of the primary constituent elements. We have 
worked with cooperative parties on the Platte and Missouri Rivers to 
identify based on the best available information what the starting 
point of managing flows might be on those systems through section 7 
consultations on Federal projects affecting those rivers. However, the 
dynamic nature of rivers would potentially require periodic adaptive 
revisions of flows to reflect changes in habitat conditions thus 
effectively making the designation of permanent specific flows 
impossible.
    (1S) Comment--Plovers were not in the Dakotas until recent years.
    Response--While it is true that historic data on the distribution 
of the northern Great Plains is somewhat scarce there is a historic 
record for the piping plover in the Dakotas that does not agree with 
the commenter. The first exploration of the Missouri River, the Lewis 
and Clark expedition passed up the river in 1804 and 1805 and journeyed 
back down the river in 1806 on their return to St. Louis. On September 
21, 1804, the expedition reached the Big Bend of the Missouri River 
(now beneath the waters of Lake Sharpe) in present day central South 
Dakota. On that date William Clark wrote, ``* * * we observed an 
immense number of Plover of Different kind Collecting and taking flight 
Southerly * * *'' (Moulton 1987). Visher (1911) also reported the 
piping plover in Harding County, South Dakota, on the North Dakota 
border. Piping plovers have been reported from South Dakota in 
subsequent decades since the earliest sightings (South Dakota 
Ornithologists Union 1991).
    In North Dakota piping plovers were observed breeding as early as 
1898 on Devils Lake (Rolfe 1899). Breeding continued to be identified 
in the 1960s (Stewart 1975) and has been documented in 25 North Dakota 
counties (Stewart 1975 and Service 1988).
    (1T) Comment--The Service has incorrectly interpreted ``occupied.''
    Response--We do not agree. The definition of critical habitat 
states that critical habitat may be designated within geographic areas 
occupied by a species at the time of listing or specific areas outside 
the geographic area occupied by a species at the time it was

[[Page 57661]]

listed. In this designation all areas are considered occupied. The 
difficulty of understanding occupation may be because of a myopic view 
of occupation. Piping plovers on the northern Great Plains are not 
unique in that many species on the northern Great Plains depend on 
ephemeral yet stable habitats. For example sandbar/island complexes on 
rivers are ephemeral but the river is stable. The nature of defining an 
area of critical habitat as occupied means that the species is known to 
be present in the critical habitat area. In the example the river 
segment of the designated critical habitat would be considered occupied 
when birds were using sandbars anywhere in the reach.
    (1U) Comment--The Service cannot designate all areas which may be 
occupied by a species.
    Response--We disagree. We did not list all occupied areas although 
it is allowed by regulation. Critical habitat means ``(1) the specific 
areas within the geographical area currently occupied by a species, at 
the time it is listed in accordance with the Endangered Species 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 (2) specific areas outside 
the geographical area occupied by a species at the time it is listed 
upon a determination of the Secretary that such areas are essential for 
the conservation of the species'' (50 CFR 424.02 (d)). Areas considered 
but not designated included areas that--(1) had a specific management 
plan for the conservation of the species (e.g., Lake McConaughy); (2) 
areas we could not determine whether the sites were a sink (i.e., areas 
that attract birds but do not contribute to population productivity) or 
source for population growth (Kansas River and Colorado Reservoirs); 
(3) areas where previous breeding was considered an anomaly and 
insignificant to the species conservation (e.g., parking lots and 
roads); (4) areas that could not support plovers in the long term 
(e.g., sites with limited history and/or minimal potential because of 
its temporary nature; this includes fly-ash pits and sandpits); and (5) 
areas consistently surveyed but did not have more than 1 year of 
nesting (e.g., some alkali wetlands).
    (1V) Comments--Potentially numerous areas of piping plover critical 
habitat were unlawfully excluded.
    Response--We disagree. Areas considered but not designated included 
areas that had a specific management plan for the conservation of the 
species (e.g., Lake McConaughy), areas we could not determine whether 
the sites were a sink (artificially draws birds in but they fail to 
reproduce resulting in potential declines in population) or source 
(productivity contributes to population growth) for population growth 
(Kansas River and Colorado Reservoirs (Colorado also under State 
recovery and management plan)), areas where previous breeding was 
considered an anomaly (e.g., parking lots and roads), areas that could 
not support plovers in the long term (e.g., fly-ash pits and sandpits), 
and areas consistently surveyed but did not have more than 1 year of 
nesting (e.g., some alkali wetlands).
    (1W) Comment--There is a concern that piping plover critical 
habitat designation is not being done with sound science.
    Response--Sound science was used to designate critical habitat. Our 
biologists reviewed the available scientific literature, conferred with 
local, regional scientists, researchers, and State and Tribal Game and 
Fish Agencies. The proposed rule was peer reviewed by scientists 
familiar with the species and its habitat. Many of the comments were 
favorable to the content of the proposed rule and modifications were 
made where necessary in line with the peer reviewers and other 
commenters.
    (1X) Comment--Lake Sharpe on the Missouri River should be proposed 
as critical habitat.
    Response--This comment from the Lower Brule Sioux Tribe reflects a 
concern by the Tribe that land along the Missouri River on Lake Sharpe 
is in need of special management if the Tribe is ever to see the return 
of this species to their reservation. In particular the Tribe refers to 
a peninsula adjacent to their land and within the Tribal reservation 
boundary. We cannot disagree that the area of concern by the Tribe on 
Lake Sharpe is an area in need of special management and meets the 
definition of critical habitat. Unfortunately because we cannot include 
it at this time because the public was not given opportunity to comment 
since Lake Sharpe was not included in the proposed rule. Because of the 
court-ordered deadline, we cannot repropose critical habitat at this 
time to include Lake Sharpe. However, we would like to include it later 
in an amendment if funding allows.
    (1Y) Comment--The proposed critical habitat is not in their primary 
range.
    Response--We disagree. The critical habitat designation does 
consider the primary range of the northern Great Plains piping plover. 
Apparently, this commenter was confused with references to piping 
plovers found in other populations along the Atlantic Coast and Great 
Lakes.
    (1Z) Comment--The proposed critical habitat area includes highways, 
farmsteads, cities, forested areas, etc., that are not habitat for the 
plover.
    Response--The commenter is correct in stating that highways, 
farmsteads, cities, forested areas etc. are not habitat for the plover. 
These types of areas may occur within the critical habitat boundary but 
were excluded in the area descriptions and by the lack of primary 
constituent elements.

Issue 2--Policy and Regulations

    (2A) Comment.--Why are lands covered by management plans for the 
piping plover included in the designated critical habitat area. 
Specific references were made to the Platte River Cooperative 
Agreement, the NPS Management Plans on the Niobrara River, the John 
Williams Preserve in North Dakota, and the National Wildlife Refuge 
lands in North Dakota.
    Response--As implied by these commenters, areas not in need of 
special management do not meet the definition of critical habitat and, 
therefore, are not included in a critical habitat designation. We used 
the following three criteria to determine if a management plan provides 
adequate special management or protection--(1) A current plan or 
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 
provisions 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.
    On January 3, 2001, the Service's Region 6 Deputy Regional Director 
sent letters to States, Tribes, Federal agencies, non-governmental 
organizations, and others involved with the management of the northern 
Great Plains breeding population of the piping plover, informing them 
how habitat management plans are considered when designating critical 
habitat. The Service letter further invited entities to have sites 
under their jurisdiction with management plans to be submitted for 
consideration of exclusion during the critical habitat designation 
process. The only party that expressed interest in review of a 
management plan for potential exclusion from critical habitat

[[Page 57662]]

was the Central Nebraska Public Power and Irrigation District 
(District). The District has completed a conservation management plan 
to satisfy a FERC re-licensing requirement. The ``Land and Shoreline 
Management Plan'' and the ``Management Plan for Least Terns and Piping 
Plovers Nesting on the Shore of Lake McConaughy'' are being implemented 
on an interim basis while awaiting FERC approval. The Plan meets the 
Service's criteria for conservation plans as mentioned above. 
Therefore, despite the presence of nesting plovers, this site, is 
eligible for exclusion from critical habitat on the basis of having 
conservation management plans that specifically address the 
conservation and recovery of the piping plover. We determined that 
these plans, developed in coordination with the Nebraska Game and Parks 
Commission and the Service, were consistent with piping plover recovery 
and met our criteria for exclusion from critical habitat.
    We received no other information from other public or private 
landowners requesting review of land management plans for consideration 
of exclusion from critical habitat designation. Therefore, no 
additional lands were excluded based on ``not [being] in need of 
special management.''
    The Service is a partner in the Platte River Cooperative Agreement. 
Cooperative Agreement participants are in the process of developing a 
basin-wide Platte River Recovery Implementation Program. Habitat goals 
and flow changes will likely be part of any final plan implemented on 
the Platte River. However, presently, there is no Platte River Recovery 
Implementation Program. We cannot rely on something that is not in 
place. Even though the Platte River Cooperative Agreement is in the 
process of developing a management plan, the geographic scope may not 
be sufficient to cover all the proposed habitat. Therefore, this plan 
as yet does not meet our three criteria. When a Platte River Recovery 
Implementation Plan is in place, we can reconsider the designation of 
critical habitat.
    The NPS in O'Neill, Nebraska, which manages the Wild and Scenic 
River and Recreational River designations on the Niobrara and Missouri 
Rivers, sent a letter of support for the designation on the Niobrara 
River but did not submit management plans for consideration during the 
critical habitat designation process.
    The Service decided not to seek exclusions for our lands in the 
critical habitat designation process. We determined that the success of 
piping plover recovery on Service and private lands was intertwined 
such that there would be no recovery benefit nor regulatory relief in 
excluding Service lands from the critical habitat designation. The 
Service does not intend to undertake any management on Service lands 
that would adversely affect piping plovers or their critical habitat. 
Therefore, undergoing formal section 7 consultation is unlikely. The 
Service intends that none of their management actions adversely affect 
a listed species nor their critical habitat.
    (2B) Comment--One commenter questioned the manner in which the 
Service excluded from critical habitat areas covered by ``current 
management practices or plans,'' noting that these practices or plans 
are untested, not based on the Endangered Species Act or drafted with 
the primary purpose of avoiding critical habitat designation. Reference 
was specifically made to the Lake McConaughy plan.
    Response--The ``Land and Shoreline Management Plan'' and the 
``Management Plan for Least Terns and Piping Plovers Nesting on the 
Shore of Lake McConaughy'' has been in the development for several 
years. Both plans are specific to the plover and are being implemented 
on an interim basis while awaiting FERC approval. The management 
actions are actions that have proven to be effective. The plans meet 
the Service's criteria for conservation plans as mentioned above. 
Therefore, Lake McConaughy, is eligible for exclusion from critical 
habitat on the basis of conservation management plans that specifically 
address conservation and recovery of the piping plover.
    (2C) Comment--Several commenters contended that the benefits of 
exclusion outweigh the biological benefits of critical habitat.
    Response--Section 4(b)(2) of the Act and 50 CFR 424.19 require us 
to consider the economic impact, and any other relevant impact, of 
specifying any particular area as critical habitat. We may exclude any 
area from critical habitat if we determine that the benefits of 
exclusion outweigh the benefits of designating the area as critical 
habitat, unless that exclusion will lead to extinction of the species. 
As we have determined that no significant adverse economic effects will 
result from this critical habitat designation, we have not excluded any 
lands based on economic impacts.
    (2D) Comment--Many requested an extension of the comment period for 
the proposed designation primarily to comment on the Economic Analysis 
completed.
    Response--Following publication of the proposed critical habitat 
designation on June 12, 2001, we opened a 60-day public comment period 
that closed on August 13, 2001, held five public meetings in July 2001, 
and conducted outreach notifying elected officials, local 
jurisdictions, States, Tribes, interest groups, and private land 
owners. We conducted most of this outreach through legal notices in 
regional newspapers, telephone calls, letters, and news releases mailed 
to affected elected official, local jurisdictions, and interest groups, 
and publication of the proposed determination and associated materials 
on our internet site. We published a document in the Federal Register 
on December 28, 2001, announcing the availability of the draft Economic 
Analysis and reopening the comments period until January 28, 2002. 
Because of the court-ordered ten month time frame for completing the 
designation, we were not able to extend or open an additional public 
comment period beyond the three months provided. Subsequently, because 
of the numerous concerns expressed about the lack of access to Service 
internet sites and delays due to the Christmas/New Year's holidays the 
Service was able to secure relief from the court ordered March 15, 
2002, and got the publication deadline postponed until August 19, 2002, 
the deadline for final rule publication. Upon receiving relief through 
the courts, the Service reopened the comment period from March 21, 
2002, until May 20, 2002.
    (2E) Comment--Many commenters referred to the lack of an Economic 
Analysis which made it impossible to fully evaluate all of the 
implications of the proposed designation and draft Environmental 
Assessment.
    Response--We published a notice in the Federal Register on December 
28, 2001, announcing the availability of the Economic Analysis and 
reopening the comment period until January 28, 2002, and again from 
March 21, 2002, until May 20, 2002. The Service acknowledges that the 
Economic Analysis was delayed by workload issues and changes that 
needed to be made according to a 10th Circuit decision (New Mexico 
Cattle Growers Association v. U.S. Fish and Wildlife Service, 248 F.3d 
1277). Additional changes to the Economic Analysis were compiled in an 
addendum to the Economic Analysis. This addendum addresses comments 
made during the comment period.
    (2F) Comment--There was a question whether there were sufficient 
data to designate critical habitat or to accurately

[[Page 57663]]

evaluate, the social, environmental, and economic impacts associated 
with the designation as required by the National Environmental Policy 
Act (NEPA).
    Response--In accordance with section 3(5)(A)(i) of the Endangered 
Species Act and regulations at 50 CFR 424.12, we are basing this 
critical habitat determination on the best scientific and commercial 
data available at the time of designation. The designation indicates 
areas we believe are essential to conservation of the species. The data 
used in making this designation is available at the South Dakota 
Ecological Services Field Office (see ADDRESSES section).
    The Service prepared a draft Environmental Assessment and a notice 
of availability was published in the Federal Register July 6, 2001, 
opening a comment period until August 13, 2001. A final Environmental 
Assessment and Finding of No Significant Impact have been prepared with 
this final rule. All impacts from critical habitat designation are 
expected to be indirect, as critical habitat designation does not in 
itself directly result in any alteration of the environment. Further, 
the Economic Analysis concluded that critical habitat designation for 
the plover will lead to minimal economic benefits or impacts separate 
from the benefits or impacts associated with the listing of the 
species.
    (2G) Comment--The draft Environmental Assessment is deficient. The 
Environmental Assessment fails to address management plans as 
alternatives to designation and understates the adverse economic 
impacts of the designation on private activities.
    Response--An explanation of how the Service addressed management 
plans as alternatives to critical habitat designation are addressed in 
Response (2A) above. The Service has made changes in the final 
Environmental Assessment to better reflect the information from the 
Economic Analysis.
    (2H) Comment--Many commenters believed that economic impacts would 
affect farmers, ranchers, irrigators, and recreational businesses. 
Additional comments were made that this designation would cause the 
decline of property values and would infringe on private property 
rights.
    Response--A critical habitat designation does not affect a 
landowner undertaking a project on private land that involves no 
Federal funding, authorization, or activity carried out by a Federal 
agency. Critical habitat designation does not impose any new regulatory 
burdens on private land in addition to any imposed by the species' 
original listing. Private actions on private property are exempted from 
the regulatory provisions of the Endangered Species Act unless the 
actions involve Federal funds, Federal authorizations, or other Federal 
nexus, or if the activity is likely to result in the take of piping 
plovers. The term ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, collect, or attempt to engage in any such 
conduct. Prohibitions against the take of the species under section 9 
of the Endangered Species Act are present despite whether or not 
critical habitat is designated. Although the legal definition of harm 
includes habitat modification, this applies only to the species and not 
to critical habitat. Critical habitat is not protected under the take 
prohibitions of section 9.
    The Economic Analysis attempts to identify all potential Federal 
nexuses on private lands and their associated activities to assess the 
likelihood of additional section 7 consultations because of the 
proposed designation. The Economic Analysis identified different 
Federal agencies having potential nexuses on some private property 
activities. The analysis also considered the likelihood that critical 
habitat could trigger additional section 7 consultations based on the 
historical record of whether any of these nexuses or associated 
activities have triggered consultations in the past. In most cases 
involving river habitats, section 7 consultations for the piping 
plover, interior least tern, bald eagle, and pallid sturgeon, which 
occupy a significant portion of the river habitats being designated as 
critical habitat for the piping plover, involve many of the same 
activities that may affect piping plover habitat. The Platte River 
already has critical habitat for the whooping crane. For alkali lakes/
wetlands, inland reservoirs, and lakes a limited number of section 7 
consultations have been completed that considered effects to the piping 
plover. In cases of both river or alkali lakes/wetland habitats we 
estimated that a very small number of consultations would be due solely 
to designation of critical habitat. The Economic Analysis estimated 
that a maximum of $58,000 per year in consultation costs would be due 
solely to designation of critical habitat.
    In addition to costs associated with the consultation process 
itself, costs also may be associated with the conservation measures 
suggested by the Service in the consultation. These costs may include 
the costs of modifying the design of a project, costs associated with 
delays in project implementation, the costs changes in ongoing 
operations of projects (such as Federal dams) necessary to protect a 
species. While only a subset of past consultations involving the plover 
included requested conservation or mitigation measures, such measures 
can impose significant additional costs on projects or operators.
    These costs can range from $500 to $4,000 for minor water 
depletions on the Platte River and other habitat mitigation or 
improvement actions to minor modifications of project timing. However, 
the Economic Analysis concluded that the vast majority of any future 
costs will be due to the listing and subsequent consultation 
requirements, rather than designation of critical habitat.
    We have no data indicating designation of critical habitat for the 
piping plover will cause declines in property values. The designation 
is not expected to have a significant economic impact on a substantial 
number of small entities and landowners because it imposes very little, 
if any, additional restrictions on land use beyond those that may be 
required as a result of listing the piping plover. Only activities 
taking place on their property having some sort of Federal nexus could 
potentially be affected and experience has shown that most of those 
activities are easily modified or rarely warrant enough concern to 
trigger formal section 7 consultation. Because the piping plover is a 
federally protected species, landowners are prohibited from taking the 
species under the Endangered Species Act. Non-Federal activities 
occurring on private property that could result in the ``take'' of a 
species would still be subject to coordination with the Service under 
the HCP provisions in section 10 of the Endangered Species Act. Such 
requirements remain unaffected by the designation of critical habitat.
    (2I) Comment--Several State Departments of Transportation commented 
that the critical habitat designation would place an unacceptable 
burden on these agencies because construction, upgrade, and maintenance 
activities would be delayed because of additional section 7 
consultation paper work and schedule delays caused by the designation. 
Several counties expressed similar concerns for activities such as road 
and bridge construction and maintenance, bank stabilization projects, 
dredging, construction of dwellings, roads, marinas, and other 
structures and associated impacts such as staging equipment and 
materials, certain types and levels of recreational activities and

[[Page 57664]]

water development projects including groundwater withdrawal, municipal, 
industrial, and agricultural water.
    Response--Section 7(a) of the Endangered Species Act requires 
Federal agencies 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 critical habitat 
for the survival and recovery of the species. Federal actions not 
affecting the species or its critical habitat, as well as actions on 
non-Federal lands that are not federally funded or permitted, will not 
require section 7 consultation and will not be affected by critical 
habitat designation. Federal agencies will need to review their actions 
to determine if the species or its designated critical habitat would be 
affected. If the Federal action agency determines the proposed activity 
may affect the species or critical habitat, the agency will consult 
with us under section 7 of the Endangered Species Act. This process is 
already in place and is implemented by Federal agencies, and will not 
change with this designation.
    The implications of the consultation process on agencies will vary 
according to the nature of the project. If during the consultation 
process, the Federal agency determined that the activity is likely to 
adversely modify critical habitat, we will work with the agency to 
minimize negative impacts to critical habitat. We will work with 
agencies and the affected public early in the process to avoid or 
minimize potential conflicts and wherever possible find a solution 
which protects listed species and their habitat while allowing the 
action to proceed. It has been our experience when working with 
numerous Federal agencies over the years that involving the Service 
early on in the planning process is the best way to avoid and minimize 
project delays.
    (2J) Comment--Several commenters had concerns about the impacts of 
critical habitat designation on recreation and in some instances, 
tourism. The majority of concerns were from air boaters and all-terrain 
vehicle (ATVs) users.
    Response--Most recreational activities have no Federal nexus and, 
therefore, will not be impacted by critical habitat designation. Use of 
piping plover critical habitat would only be affected if a Federal 
agency funds, authorizes, or carries out an action that will result in 
a level of human use that precludes successful piping plover breeding. 
In those cases we will work with the Federal agency (and the applicant) 
involved to protect potential breeding habitat while having as minimal 
an effect as possible on people's enjoyment of the areas. On non-
Federal lands recreational activities will not be affected by the 
critical habitat designation. Access to private property is at the 
discretion of the landowners and critical habitat designation will have 
no effect upon property access issues. However, some recreational 
activities in active breeding areas have the potential to take birds as 
defined in section 9 of the Endangered Species Act. This provision of 
the Endangered Species Act was initiated upon listing of the species 
not the designation of critical habitat.
    (2K) Comment--A couple of commenters expressed concerns about human 
safety related to State Department of Transportation projects that 
could be delayed by critical habitat designation.
    Response--No delays should occur solely due to critical habitat 
designation. Ongoing projects should have already initiated section 7 
consultations based on the listing of the species. Since unoccupied 
areas have not been designated then critical habitat would not be the 
sole basis for section 7 consultation initiation. Furthermore, projects 
initiated since the proposed critical habitat rule should have 
initiated conferencing (50 CFR 402.10) actions on any proposed project. 
Conferencing resolves potential conflicts between the time of the 
action and proposed critical habitat at an early point in the decision 
making process. Therefore, projects should not be delayed due to 
critical habitat designation. Early consultations (50 CFR 402.11) and 
emergency consultations (50 CFR 402.05) also are allowed so that delays 
can be avoided and human safety issues addressed.
    (2L) Comment--One commenter was concerned that the draft 
Environmental Assessment failed to adequately address social impacts to 
Nebraska landowners. This commenter further claims a disproportionate 
impact on private landowners in Nebraska because of the high percentage 
of private land versus Federal land designated.
    Response--We do not agree that private landowners are 
disproportionally affected by critical habitat designation. As 
previously mentioned, critical habitat only affects Federal actions. 
Therefore, actions on Federal land would require a section 7 
consultation. Actions on private land will only involve section 7 
consultation if there is a Federal action or authorization such as 
funding or permitting. The Service has made some changes to the final 
Environmental Assessment and Economic Analysis to make social issues 
associated with critical habitat more understandable.
    (2M) Comment--Several State Departments of Transportation were 
concerned that the critical habitat designation creates redundancy in 
how projects are reviewed.
    Response--We disagree that critical habitat designation is 
redundant with other project review processes. Critical habitat 
benefits species conservation by identifying important areas, 
describing the features within those areas that are essential to the 
conservation of the species (primary constituent elements), and by 
alerting public and private entities to the area's importance. This 
type of information is not always readily available to Federal agencies 
designing or revising projects. Critical habitat is an additional layer 
of information that can facilitate the section 7 review process.
    (2N) Comment--State management is adequate without Federal 
government intervention. The rules already in effect adequately protect 
the piping plover.
    Response--Management for the piping plover varies by State. This 
management has yet to lead to the recovery of the piping plover. While 
critical habitat designations usually add only marginal protections 
above those already afforded a listed species, its designation is 
required under the Endangered Species Act if any benefits would accrue 
to the species at hand. Furthermore, there is a court order that says 
we will designate critical habitat. As discussed in this rule critical 
habitat does provide some benefit to the northern Great Plains breeding 
piping plover population.
    (2O) Comment--Management plans are a better solution than critical 
habitat.
    Response--We agree that management plans are an alternative to 
designation of critical habitat. On January 3, 2001, the Service's 
Region 6 Deputy Regional Director sent letters to States, Tribes, 
Federal Agencies, non-governmental organizations, and others involved 
with the management of the northern Great Plains breeding population of 
the piping plover, explaining how habitat management plans can be 
considered when designating critical habitat. The Service letter 
further invited entities to submit management plans for consideration. 
Only one party expressed interest in using a management plan for 
potential exclusion from critical habitat (see response to 2A above).
    (2P) Comment--The draft Environmental Assessment is deficient 
because it failed to consider the Platte River Recovery Implementation 
Program as an alternative and the Economic Analysis was not considered 
in the draft Environmental Assessment.

[[Page 57665]]

    Response--The Platte River Recovery Implementation Plan was not 
considered as an alternative to designating critical habitat because it 
does not meet the requirements of a management plan as noted in (2A) 
above. The final Environmental Assessment does consider the Economic 
Analysis.
    (2Q) Comment--Some commenters stated that designation of critical 
habitat is not beneficial to the piping plover nor its recovery.
    Response--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 and section 10 
permits.
    However, designation of critical habitat can help focus 
conservation and recovery activities for listed species by identifying 
areas essential to conserve the species. Designation of critical 
habitat also alerts the public, as well as land-managing agencies, to 
the importance of these areas.
    As a result of critical habitat designation, Federal agencies may 
be able to prioritize landowner incentive programs such as Conservation 
Reserve Program enrollment, grassland easements, and private landowner 
agreements that benefit piping plovers. Critical habitat designation 
also may assist States and Tribes in prioritizing their conservation 
and land-management programs. Designating critical habitat also may 
provide educational and informational benefits by alerting private 
individuals and organizations to the importance of these areas to the 
conservation of the species.
    (2R) Comment--Timeframe for comments on the proposed rule and the 
Economic Analysis was insufficient and should be extended.
    Response--On June 12, 2001, we published a proposed determination 
for the designation of critical habitat for the northern Great Plains 
breeding population of the piping plover (66 FR 31760). The comment 
period was open until August 13, 2001. On December 28, 2001, we 
published a notice in the Federal Register (66 FR 249) announcing the 
reopening of the comment period and a notice of the availability of the 
draft Economic Analysis on the proposed rule. This comment period was 
open until January 28, 2002. However, before that reopening the 
Service's web sites and electronic mail were disconnected in response 
to a court order in an unrelated lawsuit. In response to comments 
received during the December-January comment period the Service sought 
relief from the courts and the court took action extending the time for 
the final rule. On March 21, 2002, we again published a notice in the 
Federal Register (67FR55) extending the comment period until May 20, 
2002. In total, 150 days were allowed for comment on the proposed rule 
and draft Environmental Assessment and 90 days were allowed for comment 
on the Economic Analysis.
    (2S) Comment--The proposed designation will adversely impact the 
ability of natural resource managers to efficiently manage those 
natural resources in the future.
    Response--Other natural resource management activities, e.g., 
backwater restoration projects on the Missouri River already undergo 
section 7 consultation under the Endangered Species Act, and as 
previously mentioned, the designation of critical habitat only adds 
additional review of the project in regard to its impacts to critical 
habitat. In most if not all situations the initial review of the 
project, by virtue of the listing of the piping plover will provide the 
appropriate review and action recommendations such that additional 
recommendations for critical habitat will not be necessary. This is 
because impacts to the piping plover are significantly tied to impacts 
to this species' habitat.
    (2T) Comment--When the Service listed the piping plover, the 
``ephemeral'' nature of the piping plover's nesting habitat was listed 
as a reason for not designating habitat and now the Service wants to 
use the same reason to designate everything as critical habitat.
    Response--The Service had stated in the original proposed rule (49 
FR 44712) for listing the piping plover that critical habitat 
designation would not be prudent because of the often ephemeral nature 
of the plover's nesting habitat. However, in the final listing rule (50 
FR 238), in response to public comments the Service chose to review the 
determinability of areas submitted during the original listing process 
and other potential areas as potential critical habitat. We further 
stated that ``the prudence of such a determination will be reviewed 
within 1 year, as allowed under section 4(b) (6)(C) of the Endangered 
Species Act.'' Subsequently, we did not propose critical habitat within 
1 year and the court has required us to list critical habitat for the 
northern Great Plains piping plover population by August 2002.
    (2U) Comment--What is the authority the Services uses to declare 
man-made habitat as critical?
    Response--We have not designated man-made habitats as critical. 
However, it appears there are different interpretations of what are 
man-made habitats. Dams have been placed on rivers and are man-made but 
the dams have not been designated as critical habitat. Some commenters 
interpret that reservoirs are man made and by including reservoirs 
behind the dam we have included man-made habitats. Yet, the rivers are 
still in place and flow through the reservoir and dams. Now instead of 
islands there are reservoir shorelines and peninsulas instead of 
islands.
    On rivers, land managing agencies have manipulated islands and 
sandbars (e.g., cleared vegetation) to provide habitat for piping 
plovers. Some consider these areas to be man-made habitats; we do not. 
The dynamic nature of rivers formed the sandbar/islands and man has 
enhanced them to provide habitats for plovers where dams or other flow 
related activities have altered the river dynamics changing the 
sandbar/island migration process. Therefore, we do not agree that we 
have listed man-made habitats as critical. A review of the primary 
constituent elements shows we have tried to clarify the issue of man-
made habitats by avoiding the listing of artificial or short term 
habitats critical to the conservation of this species (e.g., sand and 
fly-ash pits). Man-made habitats in absence of the primary constituent 
elements are not critical habitat.

Issue 3--Site Specific Issues

    (3A) Comment--A concern was expressed over the use of the term 
``high water mark'' in reference to the mapping of prairie alkali 
wetlands, because the term implies that the area considered as critical 
habitat may change over time.
    Response--The Service acknowledges- that ``high water mark'' lines 
may change over time. However, the Service used photos taken during the 
highest water period, in the spring, to create the National Wetland 
Inventory (NWI) maps that form the base for the critical habitat maps. 
Most of the NWI maps used were created from photos from the early 1980s 
(1982, 1983) and are the most recent maps available. The critical 
habitat is further defined by the primary constituent

[[Page 57666]]

elements. Our mapping methods are described in the final rule and 
discussed in response to comment 1A above.
    (3B) Comment--The BOR corrected site descriptions for land owned by 
the United States and administered by the BOR in Units ND-3 and ND-4.
    Response--The Service has reviewed the information and made the 
appropriate modifications.
    (3C) Comment--We received a request to exclude the portion of Lewis 
and Clark Lake on the Missouri River from the Chief Standing Bear 
Memorial Bridge east to Gavins Point Dam.
    Response--Unfortunately, this request did not provide information 
to support the withdrawal of this section of the Missouri River. 
Previous evaluations (Service 2000) made of data collected more than 14 
years on the Missouri River showed that Lewis and Clark Lake supports 
more than 6 percent of the Missouri River plovers. While plovers 
currently concentrate at this time in the upper part of this reach, the 
majority of nesting sites are located 3 mi above and below the Chief 
Standing Bear Memorial bridge. With continued sediment aggradation in 
this reach we expect that habitat for piping plovers will continue to 
be created especially downstream of the bridge. Therefore, using the 
best scientific information available for this reach of river we have 
kept this reach in the final critical habitat designation.
    (3D) Comment--The South Dakota Department of Game, Fish and Parks 
(SDGFP) and one other commenter recommended that Lake Francis Case not 
be included in the piping plover critical habitat designation.
    Response--We reviewed the information provided by the SDGFP 
supporting the removal of Lake Francis Case from the designation. This 
information indicated that nesting piping plovers have not been 
documented nesting in this reach in recent times. We reviewed 
additional information from the 2001 International Piping Plover Census 
which found no plovers in this reach despite the recent formation of 
some new habitat. We further interviewed Corps staff concerning the 
operations of Lake Francis Case and the availability of habitat during 
the nesting season. Natural Resource staff at the Corps' Ft. Randall 
Project office indicated that while habitat is developing in Lake 
Francis Case just above the mouth of the White River, the flows on the 
river do not allow for sufficient exposure time for nesting plovers. 
Based on this information it is apparent that Lake Francis Case does 
not now and is not likely in the near future to provide significant 
nesting habitat for the piping plover. Based on a review of all of this 
information we removed Lake Francis Case from consideration as critical 
habitat.
    (3E) Comment--The Glasgow Irrigation District, recognizing the MOU 
between the U.S. Department of Interior, BOR, the Service, and Bowdoin 
National Wildlife Refuge that protects the piping plovers and maintains 
Nelson reservoir for irrigation, recommended that Nelson Reservoir not 
be included as critical habitat.
    Response--As discuss above, we have reviewed the current MOU for 
Nelson Reservoir and removed this area from the piping plover critical 
habitat designation.
    (3F) Comment--One commenter proposed including fly ash settlement 
ponds at two Iowa coal-fired plants as critical habitat.
    Response--The two fly ash pits are presently managed by MidAmerica 
Energy for both the coal-fired power plants and for nesting piping 
plovers. As modified, disturbed, and temporary habitats which support 
few birds, and do not need special management at this time we believe 
that these sites do not meet the requirements of critical habitat. 
Additionally, the Iowa Department of Natural Resources does not 
consider these areas essential to piping plovers.
    (3G) Comment--One commenter was concerned that certain areas have 
been excluded from the proposed critical habitat designation. 
Specifically this commenter expressed concerns that any occupied 
habitat could be excluded for a species as imperiled as the northern 
Great Plains piping plover. The commenter specifically referred to 
exclusions on the Missouri River, Colorado, Kansas, Oklahoma, and 
exclusions for areas with management plans, i.e., Lake McConaughy.
    Response--Lake McConaughy was excluded because we determined that a 
sufficient long-term management plan is in place (see reply to item 
(2A) above) that provides for the conservation and recovery of piping 
plovers. The Lake Sharpe and Lake Francis Case reaches of the Missouri 
River were excluded from designation because they presently do not 
support nesting birds and do not contain the primary constituent 
elements. Lake Sharpe under current operations is a flow-through 
reservoir and has a very small amount of carryover and multiple-use 
storage space. This limits any sandbar or shoreline habitat. Lake 
Francis Case also is a small reservoir reach which remains filled into 
the annual flood control zone throughout most of the piping plover 
nesting season, limiting sandbar or shoreline habitat. The greatest 
variability on Lake Francis Case occurs in the fall after the birds 
have migrated. The Service acknowledges that at some time in the future 
these areas may be important piping plover recovery by virtue of their 
being a part of the Missouri River and our decision can be reevaluated 
at such a time.
    Sites in Kansas, Colorado, and Oklahoma do not have a history of 
successful nesting piping plovers. Piping plovers at these areas are 
nesting in artificial situations. In Kansas, habitat was created as a 
result of an historic flood event followed by favorable flows. The 
flood events that created and supported the habitat are expected 
infrequently. Therefore, the dynamic ecological processes on the Kansas 
River do not support the long-term habitat needs for piping plovers. At 
Colorado birds are nesting on man-made reservoirs in small numbers and 
are dependent on intensive management efforts by State biologists. At 
Oklahoma the use of this site was a man-made reservoir and a one time 
occurrence. At Oklahoma and Colorado the long-term presence of dynamic 
ecological processes necessary to maintain long-term habitats is 
suspect. The Service recommends continued monitoring of these areas, to 
determine if these sites are a source for population productivity or 
artificial situations that may attract birds only to have them be 
unsuccessful in their long-term persistence at these sites. Therefore, 
at this time these sites are not considered essential to the 
conservation and recovery of the piping plover and should not be 
designated as critical habitat. Should information become available to 
the contrary the Service can reevaluate these sites.
    (3H) Comment--Four State Departments of Transportation requested 
that highway projects, including easements, and fee-title lands for 
roads and bridges, be exempted from critical habitat designation 
because they believed an extra regulatory burden would be placed on 
their agencies for section 7 consultation.
    Response--We have responded to their concerns about section 7 
consultations in item (2H) above. Highways and bridges already built do 
not meet the definition of critical habitat and are already excluded. 
We do not agree that any additional regulatory burden will be put on 
future highway projects in addition to what already exists now as a 
result of the listing of the species. Not one highway project has been 
stopped since the piping plover was listed. All projects have proceeded 
with no more adjustments made for the piping plover than are made for 
other Federal regulatory

[[Page 57667]]

issues, such as the Historic Preservation Act.
    (3I) Comments--The NDNG requested that Camp Grafton, which includes 
Lake Coe, be exempted from critical habitat designation because the 
NDNG has an active Integrated Natural Resources Management Plan in 
place for management of piping plovers.
    Response--The NDNG owns portions of Lake Coe in North Dakota which 
were mapped as critical habitat in the proposed rule. The NDNG has 
completed the Camp Grafton Integrated Natural Resources Management Plan 
which includes Lake Coe. This plan provides a benefit for piping 
plovers on Lake Coe; includes implementation assurances and includes an 
opportunity for adaptive management. Therefore, this area of Lake Coe 
on Camp Grafton is not in need of special management and at the request 
of the NDNG, we have excluded the NDNG property on Lake Coe from 
critical habitat designation.
    (3J) Comment--One commenter claimed that today's flows on the 
Missouri River provide much improved habitat for shorebirds and 
provided graphs of historic flows.
    Response--We have reviewed the historic flow information from the 
Missouri River and do not agree that habitat today is much improved by 
current operations. The Service addresses the impacts of the operations 
of the Missouri River on the piping plover in detail in our November 
30, 2000, biological opinion to the Corps (Service 2000) at 
http://www.nwd-mr.usace.army.mil/mmanual/opinion.html<. The 
commenter provided graphs showing mean discharges on the Missouri River 
at Bismarck. These graphs show high flows peaking in June that the 
commenter equates with eliminating habitat for shorebirds like the 
piping plover. We know two things for sure about the Missouri River--
(1) piping plovers used the Missouri River historically and (2) the 
Missouri River had hundreds of thousands of acres of sandbars at 
various elevations and sizes (Service 2000a). The current thinking by 
scientists is that piping plovers experienced and adapted to the 
dynamic ecological processes of the Missouri River. There were years 
when production was great because of the habitat provided by Missouri 
River sandbars, or production was poor because of flooding or 
production was somewhere between. Essentially productivity of the birds 
was linked to habitat conditions on the river much like it is today. 
Yet historically the population of plovers was greater in number and 
able to adapt to such fluctuations. On the Missouri River piping 
plovers most likely cued their nest initiation to declining flows in 
the river. As experienced in recent floods on the Missouri River in the 
1990s, flooding creates high elevation sandbars that can be used 
successfully in subsequent years. Historically, plovers also nested on 
tributaries to the Missouri River plus prairie alkali wetlands. 
Tributaries and prairie wetlands offered alternative nesting areas for 
Missouri River birds affected by long-term flooding. Therefore, though 
historic mean daily discharges appear to some to preclude any historic 
use of the Missouri River by piping plovers it only portrays one aspect 
of the ecological picture. We do not believe that historic mean daily 
discharges accurately portray Missouri River piping plover nesting from 
all the historic and scientific information available.
    (3K) Comment--The City of Bismarck requested removing the critical 
habitat designation for all lands along the Missouri River between a 
point 3 mi north of the Grant Marsh bridge and a point 3 mi south of 
the Bismarck Expressway bridge because of concerns for potential 
restrictions on the construction of a new bridge north of Bismarck.
    Response--There are sandbar/islands in the vicinity of the bridges 
on the Missouri River that contain the primary constituent elements. 
This rule maintains the critical habitat designation in the vicinity of 
the bridges. However, since the City of Bismarck is just beginning 
planning for this bridge there is plenty of time for coordination with 
the Service's North Dakota Field Office to evaluate bridge locations 
that would avoid or reduce any potential impacts to piping plovers and 
their habitats on the Missouri River. The Service does not anticipate 
that the critical habitat designation will affect the bridge planning 
process beyond what project planners should already expect because of 
the presence of plovers nesting in this reach of river. Furthermore, 
the Service has a history of working through projects like this so that 
the species is conserved and the project proceeds.

Issue 4--Nebraska River Issues

    (4A) Comments--Several commenters from Nebraska expressed concern 
that the general critical habitat boundaries along the Platte, 
Niobrara, and Loup Rivers and the location of excluded areas were not 
sufficiently detailed to easily ascertain which areas are covered 
critical habitat and which are not. Others commented on the confusion 
between noted exclusions and sandpits which exhibit primary constituent 
elements.
    Response--Our response is similar to our response to Comment (1A) 
above. The necessity of designating a long reach of the Platte River is 
caused by the highly ephemeral habitat and the fact that nesting does 
not always occur in the same location year after year. In addition, 
birds may relocate within a nesting season, and will use a variety of 
habitats during the course of the nesting season. The marking of 
individual colonies is not always possible, and when done, marking only 
identifies the actual nesting location and does not acknowledge 
foraging habitat. The concept of critical habitat is to identify 
critical portions of the functioning habitat as a whole rather than 
individual fragments which do not function as a whole. Therefore, the 
``blanket'' approach has been used to identify large areas, which in 
any given year have the potential to support nesting, as well as 
foraging.
    For the Nebraska rivers we tried to better define the areas by 
adding better descriptions of locations. We also tried to better 
explain the role of primary constituent elements in further defining 
the critical habitat.
    Although sandpits were discussed in the draft Environmental 
Assessment, the proposed rule was short on how sandpits were 
considered. Commenters have provided much data on sandpits and have 
discussed the need to include them and exclude them. We have thoroughly 
reviewed the information provided and additional information from the 
Nebraska Game and Parks Commission and various agencies that manage the 
sandpit areas. We have concluded that sandpits do not support the 
primary biological constituent element of dynamic ecological processes. 
Because sandpits are artificial and temporary, not all of the necessary 
biological and physical features that are essential to the conservation 
of the species are present at sandpits. We agree that sandpits have 
produced piping plovers over the years but it has not been without 
significant resource actions from managing agencies. Some biologists 
believe that the sandpits have been successful because of their 
location adjacent to the Platte River (Corn and Armbruster 1983 and 
Kirsch pers.com comm. 2001). ``Birds nesting on sandpits appear to forage 
on river channel sites as well as on the sandpit shoreline, and in some 
cases appear to fly up to a mile between the sandpit nest site and the 
river channel foraging site (Corn and Armbruster 1993). Because 
sandpits are man-made, the

[[Page 57668]]

sand environment is machine shifted regularly affecting vegetative 
growth and soil moisture. Soil moisture at sandpit sites is lower than 
on river channel sites and declines dramatically from the shoreline 
edge on sandpits. Corn and Armbruster (1983) found that soil moisture 
was the key factor in explaining the difference in invertebrate catch 
rates between rivers and sandpits. They also found Invertebrate catch 
rates and densities are higher on river channel sites than on sandpits 
and invertebrate catch rates increased more dramatically over the 
course of the summer on river channel sites than on sandpits. Without 
the dynamic ecological processes sandpit habitats are only temporary 
for piping plovers. Once sandpits are abandoned, they become vegetated 
and too dense for piping plovers and the physical primary constituent 
elements are eliminated. Because sandpits do not meet the primary 
constituent element and are not likely to meet the primary constituent 
element in the future, we have excluded them from designation.
    In addition to the lack of the primary constituent element, the 
nature of sandpits is not conducive to long-term management and 
recovery of the piping plover. We expect that mining will continue in 
areas of Nebraska as it has for years. However, eventually the mined 
areas are abandoned and usually sold for residential development. 
Usually within 1 and 3 years the abandoned mines re-vegetate and all 
value for piping plover nesting habitat is lost. Therefore, sandpits do 
not provide for piping plover recovery in the long term. This was 
recognized the recovery plan as sandpits are not listed as essential 
habitat. We have made changes in the final rule to clarify the 
exclusion of sandpits.
    (4B) Comment--Many commenters requested exclusion of the Loup River 
between Genoa, Nebraska, and Columbus, Nebraska. Thirty-two form 
letters were received expressing concern over disruption of 
recreational activities along the Loup River. The form letters state 
that as a result of the operations of Loup Power District's canal west 
of Genoa, Nebraska, and the electrical generating plant by Columbus, 
Nebraska, the reach of the Loup River between Genoa and Columbus is 
either dry or inundated. Commenters contend that this would preclude 
successful nesting, and, therefore, this reach be excluded from 
critical habitat designation and left open to the public for 
recreation. Many commenters also expressed belief that if an area is 
designated as critical habitat it is essentially closed to public use.
    Response--The Service agrees that flood events hamper nesting in 
this reach, but does not agree that the area is unworthy of inclusion 
in the critical habitat designation. Periodic flooding can be 
beneficial because it scours vegetation and encourages sandbar movement 
and regeneration, which results in wide sandy channels with little to 
no in-channel vegetation. The critical habitat designation does not 
limit or change existing recreational access on private property. 
Access will continue to be at the discretion of the landowner, and as 
stated earlier in this section, harassment or take of a threatened 
species will continue to be prohibited under the Endangered Species 
Act, as it has been since the species was listed, despite whether a 
critical habitat designation is in place or not.
    (4C) Comment--One commenter requested that islands within the 
Platte River, within and adjoining the boundaries of the County of 
Saunders (but outside of county, State, or Federal rights of way, 
roads, highways, and bridges) be designated as critical habitat and 
that the wetlands located within the Metropolitan Utilities District of 
Omaha well fields and the City of Lincoln's well fields within Saunders 
County be designated as critical habitat for piping plovers.
    Response--Islands within the Platte River along Saunders County 
were previously proposed for designation as critical habitat for the 
piping plover (66 FR 31760) and that designation remains in the final 
rule. The wetlands within the well fields were not proposed as critical 
habitat as they have no record of supporting nesting piping plovers and 
are not considered essential habitat for the recovery of this species.
    (4D) Comment--The vast majority of Nebraska river reaches do not 
contain the physical or biological features (primary constituent 
elements) suitable for plover nesting.
    Response--We disagree. Nebraska's rivers still have dynamic 
ecological processes that create and maintain sandbar habitats for 
piping plovers. We recognize that sandbars can migrate, appear, and 
reappear depending on flows and hydrologic cycles. However, as long as 
those processes continue on these rivers we believe that these rivers 
will continue to support critical habitat for piping plovers. We have 
further clarified the primary constituent elements of the final rule in 
order to bring clarity to this issue.
    (4E) Comment--The Service has failed to explain why more than 500 
mi of Nebraska's rivers are essential for the conservation of the 
species.
    Response--We have reviewed the designation of rivers in Nebraska 
and have made some changes based on additional information provided 
during the comment period and there are now 440 rm designated in 
Nebraska. We believe based on our review of the available scientific 
information including but not limited to the historic and present 
nesting information in Nebraska that the riverine habitats proposed in 
Nebraska meet the definition of critical habitat, are essential to the 
conservation of the species, and are essential to meeting the recovery 
goals for the northern Great Plains population of the piping plover.
    (4F) Comment--Use, nesting and census data do not support the 
entire Platte River is essential for the conservation of the species.
    Response--First the entire Platte River has not been designated. 
The Platte River upstream of Cozad was not proposed for designation. We 
have since further modified the designation from the proposed rule 
based on information received during the comment period. The Platte 
River portion of critical habitat now runs from the Lexington bridge 
and extends to the Platte's confluence with the Missouri River. We 
believe the available nesting and census information does support 
listing the river as designated in this rule. Ridgeway (1874) 
documented piping plovers on what he called the ``Loup Fork of the 
Platte'' as early as 1874. The Nebraska Game and Parks Commission and 
others including the Service, Nebraska Public Power District, Central 
Public Power and Irrigation District, Platte River Trust, and the Tern 
and Plover conservation partnership, have been surveying piping plovers 
most years since the species was listed and have participated in the 
1991, 1996, and 1997 International Piping Plover Census (Nebraska Game 
and Parks Commission 2001). Piping plovers have been counted every year 
since 1982 on the Platte River (J. Dinan pers.com comm. 2002). The numbers 
of plovers on the Platte has varied over the years as birds take 
advantage of migrating sandbar habitats. Because sandbars are ephemeral 
and migrate, we chose to be inclusive in our designation to include the 
stretch of river that has a history of piping plovers and sandbar 
presence and contains the constituent elements. In this case that 
stretch of the Platte River runs from the Lexington bridge and extends 
to the Platte's confluence with the Missouri River. We believe that the 
Platte River as designated is essential to the conservation and 
recovery of this species.

[[Page 57669]]

    (4G) Comment--In regard to the Niobrara and Loup Rivers in Nebraska 
it is impossible for the Service to determine that an area is 
``essential'' for nesting when it has little to no data as to whether 
nesting even occurs.
    Response--We disagree. These two rivers have been considered as 
essential habitats since the first recovery plan was written in 1988. 
These rivers also have been surveyed and found to have birds in all 
three International Piping Plover Censuses (1991, 1996, 2001). Plovers 
were documented on the Loup River as early as 1874 (Ridgeway 1874). 
Brunei, Walked, and Swank (1904) report that the piping plover ``breeds 
about the lakes in the sand-hill region, along the Niobrara River, in 
northern Nebraska, on the Loup at Dannebrog, along the Platte, and 
perhaps on any of the rivers of the State where are the sand-bars on 
which it nests.'' Bruner, Wolcott, and Swenk (1904) also report that 
Aughey recorded plovers breeding in Dakota County in July 1866, along 
the Missouri River. On the Niobrara River the habitat was thought to be 
so unique it was studied in 1996-1997 as one of the least modified 
prairie rivers with breeding piping plovers that still exhibits 
somewhat of a natural hydrograph (Adolf 1998). The Corps initiated this 
study to assist in their habitat and flow modeling efforts on the 
Missouri River.
    (4H) Comment--The Service does not provide evidence that habitat 
quality or quantity in Nebraska rivers is currently a limiting factor 
in plover abundance.
    Response--There have been numerous studies in Nebraska to document 
the quality of habitat necessary for piping plover nesting success 
(Faanes 1983, Scwalbach 1988, Sidle et al. 1992, Ziewitz 1992, Corn and 
Armbruster 1993, Adolph 1998). The ``Ecology'' section of this rule 
also discusses habitat quality. Habitat quality on Nebraska rivers is 
related to flows as many of the previously identified studies suggest. 
In regard to quantity, the carrying capacity of habitat on rivers to 
support breeding plovers is subject to fluctuation with the dynamic 
ecological processes that affect sandbar/island formation, vegetation 
and other habitat characteristics. These fluctuations can be affected 
by natural factors, such as climate/rainfall events and by human 
intervention through such actions as flow regulation and water 
withdrawal. For this reason any estimates of carrying capacity or 
habitat quantity, especially on a local basis, may be subject to change 
over time and would require periodic revision to reflect changes in 
habitat conditions. In regard to critical habitat designation the 
Service considered the amount of habitat we have seen over time on 
Nebraska rivers, the characteristics and changing of that habitat over 
time, the numbers of birds using those habitats, the recovery goals for 
those rivers, and the overall recovery of the northern Great Plains 
population. All of these things were considered before habitat 
designation. We concluded that all sites in Nebraska that had a history 
of piping plover nesting and met the primary constituent elements was 
necessary for the conservation of this species. Inclusion of all of the 
data upon which the designation is based in its entirety within the 
proposed or final rule would be impractical. However, the data upon 
which the designation was made is available from the South Dakota 
Ecological Services Field Office (see ADDRESSES section).
    (4I) Comment--The Service fails to acknowledge or analyze other 
possible effects of modified flows on the Platte River.
    Response--We have acknowledged the effects of modified flows on the 
Platte River but it is not the purpose of critical habitat designation 
to analyze these effects. The Service along with others over the years 
have analyzed the effects of modified flows on the Platte River and 
recognize the need to address the flow issues on the Platte. However, 
the critical habitat designation process is not the appropriate place 
to address flow issues.
    (4J) Comment--The description of the primary constituent elements 
for rivers in Nebraska is inadequate; there is a need to define with 
precision.
    Response--We have modified the primary constituent elements to 
better define all breeding habitat areas throughout the northern Great 
Plains. However, because of the broad range and types of habitats we 
defined one over-riding element for all habitats and more precisely 
defined how that element manifests itself in each habitat type.
    (4K) Comment--The Service has failed to show that plover nesting 
has been ``consistently'' documented on the Platte, Loup, and Niobrara 
Rivers since listing.
    Response--Not all of the data we reviewed and considered during 
this designation was printed in this document. Piping plover data from 
Nebraska has been collected for all of these rivers during each of the 
three International Piping Plover census in 1991, 1996, and 2001 
(Nebraska Game and Parks Commission 2001). In each year piping plovers 
were documented as present. Additional years of surveys that were 
conducted by various partners over the years also were reviewed, which 
indicate that plovers use the river. Therefore, we believe that piping 
plover presence on these rivers have been appropriately documented.
    (4L) Comment--Piping plover nesting habitat is not likely to exist 
on the central Platte River without flows in the 12k-20kcfs range.
    Response--This commenter refers to a Platte River article by Paul 
Currier (2001). We believe the commenter misrepresents Currier's paper. 
Currier refers to ``Flows in the 12,000-20,000 cubic feet per second 
range once occurred every 2 to 3 years, but there were only two such 
events during the last 20 years (1983-84 and 1995).'' Currier also 
acknowledges that ``the biggest challenge [to managing sandbar habitats 
on the Platte] has been a lack of high water flows to rework the river 
bed.'' We acknowledge that the river is currently in a low-flow period 
but we remain optimistic that another high-flow event will occur as it 
has done historically, albeit in the last 20 years probably not as 
often. Unfortunately, the central Platte River did not experience any 
significant high-flow events in the 1990s that were comparable to what 
occurred during the preceding decade in order to sufficiently 
redistribute sandbars and provide extensive nesting areas for piping 
plovers. We believe hydrological conditions will again enter a wet 
cycle with high peak flows, resulting in redistributed sandbars that 
have elevations conducive to nesting. As long as those high flows and 
associated processes continue we believe that the Platte River, 
including the central Platte River, will continue to support critical 
habitat for piping plovers.
    (4M) Comment--This critical habitat designation proposal appears to 
be an effort to supercede the cooperative efforts to provide habitat 
for threatened and endangered species recovery on the Platte River.
    Response--We do not agree. The critical habitat designation was 
prompted and ordered through the courts and is not being used to 
supercede any cooperative efforts for the conservation and recovery of 
threatened and endangered species on the Platte River. We remain 
committed to the cooperative efforts on the Platte River.
    (4N) Comment--Check the accuracy of Table 2 in the proposed rule in 
regard to Platte, Loup, and Niobrara River counties.
    Response--These data have been re-verified and modified where 
appropriate.
    (4O) Comment--Some commenters used a letter written by Gary Lingle 
to

[[Page 57670]]

the Service on March 22, 2000, as a reason to exclude the central 
Platte River from critical habitat designation since commenters 
believed the letter showed that there has been no documented successful 
reproduction of piping plovers on the central Platte River.
    Response--The letter was written to the Service and we are well 
aware of its contents. While successful reproduction has not been 
documented recently, the central Platte River provides important 
habitat for piping plovers. Plovers that nest on sandpits along the 
central Platte River rely primarily on the river for food, and they 
abandon the sand pits at the end of the nesting season and reside on 
the river until they migrate. We have data showing plovers used the 
river and even nested in some years on the central Platte River, but 
the lack of follow-up monitoring on some of these areas is another 
reason for the lack of documentation. As mentioned in previous 
responses, there are records of successful production on the central 
Platte River during the 1980s and records of plover nests and plovers 
using sandbar/island habitats during the 1990s and into the 2000s. A 
standardized survey protocol for piping plovers has been developed by 
the Technical Committee of the Platte River Cooperative Agreement, and 
was carried out on an annual basis for the first time in 2001. The 
future use of this survey protocol should provide consistent, long-term 
monitoring information on piping plover occurrences and reproduction on 
the central Platte River.
    (4P) Comment--One commenter listed all of the active management 
actions on the Platte, Loup, Niobrara, and Missouri Rivers that involve 
management actions for the piping plover including the Platte River 
Cooperative Agreement; the Tern and Plover Conservation Partnership; 
Central Platte Natural Resources District's instream flow rights for 
macroinvertebrates; Nebraska Game and Parks Commission's Nongame 
Wildlife program; the Service's Partners for Wildlife Program; 
management actions by the National Audubon Society, and Platte River 
Whooping Crane Habitat Maintenance Trust, Inc.; the Loup Public Power 
District's conservation work; the Central Nebraska Public Power and 
Irrigation District and Nebraska Public Power District's management in 
accordance with their Federal Energy Regulatory Commission licenses, 
the Corps' conservation efforts on the Missouri River and the Niobrara 
River; and the Loup Public Power District and Nebraska Game and Parks 
Commission Habitat Management Plan as reasons that the Service should 
consider avoiding the designation of critical habitat on these rivers.
    Response--As implied by this commenter, areas not in need of 
special management do not meet the definition of critical habitat and 
can be excluded from a critical habitat designation. As mentioned in 
(2A) above we used three criteria to determine if a management plan 
provides adequate special management or protection--(1) A current plan 
or 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 
provisions 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.
    The list of management actions provided by this commenter could be 
the beginning of an effort to design a Statewide piping plover 
management and recovery plan for Nebraska. However, a specific plan to 
address each of the rivers in Nebraska is not in place. A plan should 
contain funding and assurance that management actions are in place that 
will allow for the recovery of the piping plover in Nebraska, in 
addition to a monitoring program that will ensure success. If the many 
conservation partners in Nebraska get together and create such a 
program then the critical habitat designation can be reassessed.

Issue 5--Other Relevant Issues

    (5A) Comment--One commenter requested the final rule include a more 
thorough discussion of the positive impacts of critical habitat.
    Response--We have reviewed the document and added additional 
discussion where warranted in the rule and in the Environmental 
Assessment. s
    (5B) Comment--The Endangered Species Act is flawed and has created 
and/or supported a state of lawlessness.
    Response--The Endangered Species Act is a complex law; one that not 
everyone likes. The purposes of the Endangered Species Act are to 
protect threatened and endangered species and to provide a means to 
conserve their habitat. As an administrator of the Endangered Species 
Act, the Service has worked to achieve its purposes. In doing so the 
Service has found flexibility in the Endangered Species Act that has 
brought successful recovery to some species and kept many species from 
extinction all while conserving the ecosystems upon which those species 
are dependent. Therefore, we do not agree that the Endangered Species 
Act is flawed nor that it creates or supports lawlessness.
    (5C) Comment--The use of the word ecosystem should not be used.
    Response--We disagree with this commenter. This commenter did not 
provide any rationale for eliminating the use of the word 
``ecosystem.'' However, this term is widely used and accepted among the 
professional biological community and is mentioned in the purposes of 
the Endangered Species Act (see definition of the purposes of the 
Endangered Species Act as noted above).
    (5D) Comment--The citation of Ziewitz et al. 1992, does not support 
the statement in the proposed rule, ``After upstream dams were built, 
reduced flows allowed the establishment of woody vegetation on most 
islands, due to the lack of scouring, high spring flows (Ziewitz et al. 
1992).''
    Response--This statement has been modified and more appropriately 
cited.
    (5E) Comment--This proposed designation is not in line with the 
10th Circuit Court decision on the southwest willow flycatcher.
    Response--The commenter did not speak to any particular finding in 
this case. However, we believe that this designation is consistent with 
the findings of the subject case.
    (5F) Comment--The designation of critical habitat is an ``about 
face'' from the decision made in the listing rule not to list critical 
habitat.
    Response--We were required by the court to designate critical 
habitat for the northern Great Plains breeding population of the piping 
plover. The final listing rule for the piping plover indicated that 
designation of critical habitat was not determinable. Thus, designation 
was deferred. No further action was taken to designate critical habitat 
for piping plovers. On December 4, 1996, Defenders of Wildlife 
(Defenders) filed a suit (Defenders of Wildlife and Piping Plover v. 
Babbitt, Case No. 96CV02965) against the Department of the Interior and 
the Service over the lack of designation of critical habitat for the 
Great Lakes population of the piping plover. Defenders filed a similar 
suit (Defenders of Wildlife and Piping Plover v. Babbitt, Case No. 
97CV000777) for the northern Great Plains piping plover population in 
1997. During November and December 1999 and January 2000, we began 
negotiating with Defenders on a schedule for piping plover critical

[[Page 57671]]

habitat designation. On February 7, 2000, before the settlement 
negotiations were concluded, the U.S. District Court for the District 
of Columbia issued an order directing us to publish a proposed critical 
habitat designation for nesting and wintering areas of the Great Lakes 
breeding population of the piping plover by June 30, 2000, and for 
nesting and wintering areas of the northern Great Plains population of 
the piping plover by May 31, 2001. A subsequent order, after we 
requested 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. In 
response to comments received during the December-January comment 
period, the Service sought relief from the courts and the court took 
action extending the time for the final rule until August 19, 2002.
    (5G) Comments--Since the Service and local management authorities 
have no control of the flows on the Missouri River the result of the 
designation will be to circumvent this obstacle by transferring the 
impact analysis to neighboring landowners.
    Response--We do not agree. The Corps is ultimately responsible for 
the operations of the Missouri River. Like all Federal agencies the 
Corps has a responsibility for recovery and conservation of federally 
listed species. We issued a biological opinion to the Corps in November 
2000 for operation of the Missouri River on piping plovers and other 
federally listed species and the Missouri River ecosystem. The Corps 
has been working toward meeting their Endangered Species Act 
responsibilities. The designation of critical habitat for the piping 
plover on the Missouri River may not significantly change what the 
Service has already recommended to the Corps in the November 2000 
biological opinion since many of the recommendations were habitat 
based. So we believe the Corps is responsible for a large portion of 
the piping plover conservation and recovery effort. We do not see that 
this impact has been transferred to neighboring landowners. Neighboring 
landowners will only be impacted in so far as they engage in actions on 
Missouri River sandbars/islands/reservoir shoreline that may require a 
Federal permit, authorization or funding. The findings of the Economic 
Analysis are that the impacts of designation are not significant and 
that most impacts would have occurred with the listing of the species 
and not due to the incremental effect of critical habitat designation.
    (5H) Comment--Bridge construction and maintenance will be 
significantly impacted by prohibiting work during the nesting season, 
costing travelers and shippers.
    Response--Bridge construction and maintenance within .25 mi of any 
piping plover nesting area is already required to avoid work during the 
nesting season. Since the piping plover was listed, this condition has 
been used for bridge construction and other maintenance of project 
actions. Therefore, it is unlikely there will be significant extra 
costs beyond what already occur.

Issue 6--National Environmental Policy Act Compliance

    (6A) Comment--The Service should prepare an Environmental Impact 
Statement (EIS).
    Response--The commenters did not provide sufficient rationale for 
their belief that an EIS is required. An EIS is only required if we 
find that the proposed action is expected to have significant impact on 
the human environment. To make that determination we prepared an 
Environmental Assessment which analyzed the probable effects of the 
designation as well as several alternatives to the proposed action. The 
Environmental Assessment was made available to the public for review 
and comment on July 6, 2001. In addition we conducted an Economic 
Analysis that was made available to the public for review and comment 
on December 28, 2001. An addendum to the Economic Analysis also is 
being completed prior to this rule. Based on these analyses and 
comments received from the public, we prepared a final Environmental 
Assessment and made a Finding of No Significant Impact, which negated 
the need for preparing an Environmental Impact Statement. The final 
Environmental Assessment, final Economic Analysis, and the Finding of 
No Significant Impact provide our rationale for determining that 
critical habitat designation would not have a significant effect on the 
human environment. Those documents are available for public review at 
the South Dakota Ecological Services Field Office (see ADDRESSES 
section).
    (6B) Comment--The Service should consider a broader range of 
alternatives; e.g., excluding areas of potential habitat.
    Response--We disagree with the commenter. We considered a no-action 
alternative and three action alternatives. Two of the action 
alternatives that were not chosen had greater amounts of habitat than 
the proposed alternative. The final designation has even excluded 
additional habitat from the original proposal. Therefore, we have 
provided a sufficient range of alternatives and actually chose the 
alternative that was most exclusive.
    (6C) Comment--The draft Environmental Assessment is inadequate and 
ignores the lack of tax considerations and social and human impacts, 
e.g., loss of crop land because of the lack of water.
    Response--We disagree. The final Environmental Assessment has been 
revised to include information from the Economic Analysis and the 
addendum to the Economic Analysis. However, we do not agree that crop 
land will be lost solely because of the designation of critical 
habitat. Water supply or lack there of is a much broader issue that 
critical habitat designation.
    (6D) Comment--The draft Environmental Assessment fails to include 
cumulative impacts and connected actions.
    Response--We disagree. We did consider cumulative impacts in the 
draft and final Environmental Assessment, but since we determined the 
impacts to be relatively small we believe only minimal incremental 
impacts will occur when added to other past, present, and reasonably 
foreseeable future actions. If we had determined significant impacts 
then we would have either prepared an Environmental Impact Statement 
which would have considered more detail in regard to cumulative impacts 
and connection actions or deleted sites with significant impacts.
    (6E) Comment--There is a disagreement with a statement in the 
Environmental Assessment that states that recreational impacts are 
significant on the entire 80-mi stretch of Lake Sharpe.
    Response-We have changed the text of the Environmental Assessment 
and the final rule to better reflect the nature of recreational impacts 
on Lake Sharpe.

Issue 7--Tribal Issues

    (7A) Comment--There are Tribal trust lands within the proposed 
designation that were not identified as Tribal lands.
    Response--We have made the correction and appropriately identified 
both reservation boundaries and Tribal trust land. Although, we had 
made preliminary contacts with the Tribes, new information after the 
proposed rule was published was provided that showed the details and 
extent of Indian trust lands. Based on the data provided some of the 
islands and sandbars along the Missouri River are adjacent or formed 
over flooded Indian trust land. Indian trust lands are lands held by 
the United States in trust for either a Tribe

[[Page 57672]]

or an individual Indian. Initially, the proposed rule reported that 
lands in the Missouri River belonged in Montana to the States of 
Montana and the Ft. Peck Sioux and Assiniboine Tribes; in North Dakota 
to the State; and in Nebraska to the adjacent landowner. Subsequently, 
we have been informed that the Submerged Lands Act, 43 U.S.C. sections 
1301-1356, states that ``* * * land beneath navigable water held by the 
United States for the benefit of any tribe, band, or of Indians or for 
individual Indians is excepted from the confirmation and establishment 
of the States'' rights confirmed by 43 U.S.C. section 1311. Therefore, 
these modifications to recognize Tribal trust lands have been made.
    The Turtle Mountain Tribe was not previously recognized in the 
proposed rule as having lands within the proposed critical habitat 
designation but information provided during the comment period revealed 
that the Turtle Mountain Tribe has mineral rights on land outside their 
reservation boundary on the Missouri River. The final rule reflects 
this change.
    Concerning reservation boundaries we have made modifications in the 
final rule to reflect that designated critical habitat does lie within 
reservation boundaries.
    (7B) Comment--There is a need to recognize the Ft. Peck Tribes 
(Assiniboine and Sioux) water rights in relationship to the critical 
habitat designation and associated management decisions resulting from 
this designation.
    Response--We respect the Ft. Peck Tribes' water rights as well as 
the 28 Tribes claiming water rights to the Missouri River. We further 
acknowledge our role to manage natural resources in a way that protects 
natural resource that the Federal government holds in trust for Tribes. 
However, the designation of critical habitat cannot and does not 
legally affect any Tribal water rights. Critical habitat designation 
does not create a water right on the river and does not create a 
property right. Critical habitat is a designation only. The Service 
will continue to work with the Ft. Peck Tribes to ensure that we work 
toward managing natural resources in a way that protects natural 
resources that the Federal government holds in trust for Tribes. The 
Service is presently working with the Ft. Peck Tribe on an endangered 
species management plan for the Missouri River within their 
reservation.
    (7C) Comment--The Ft. Peck Tribes are interested in developing 
their own management plan for the piping plover and least tern.
    Response--We have communicated with and agreed to work with the 
Tribe on this effort to further the conservation and recovery of these 
species.
    (7D) Comment--The Ft. Peck Tribes believe there is a burden from 
designating critical habitat such as limitations on the area's use, 
access protocols and the Endangered Species Act prohibitions against 
jeopardy and destruction.
    Response--As noted in this rule we believe that critical habitat is 
not an additional burden with limitation's on areas nor access nor is 
it necessarily additive to habitat destruction that rises to the level 
of jeopardy. First critical habitat designation is a formal delineation 
of habitat essential to the species recovery. It does not create or 
exercise a property right or access rights. Further, we believe future 
Endangered Species Act section 7 consultations involving Tribes 
(section 7 of the Endangered Species Act requires Federal agencies to 
consult with us whenever actions they fund, authorize, or carry out may 
affect a listed species or its critical habitat) will take place 
because such actions have the potential to adversely affect a federally 
listed species. We believe that planned projects would require a 
section 7 consultation regardless of the critical habitat designation.
    We understand that we have a fiduciary responsibility to Indian 
Tribes to protect their lands and resources, including threatened and 
endangered species. We would not be designating critical habitat on 
Tribal lands unless it was determined essential to conserve a listed 
species. The Service believes that this is consistent with the special 
trust responsibility the Federal government has to Indian people to 
preserve and protect their lands and resources. Both the Service and 
Tribes have acknowledged that species conservation could be best 
achieved through government-to-government collaboration and 
communication and to that end we will continue to work with the Ft. 
Peck Tribes to ensure the conservation of the piping plover.

Issue 8--Economic Analysis Issues

    (8A) Comment--Several commenters expressed concern over the fact 
that they did not believe that our draft Economic Analysis evaluated 
the potential economic effects of the designation consistently with the 
recent 10th Circuit Court ruling on the southwestern willow flycatcher 
critical habitat.
    Response--On May 11, 2001, the U.S. Court of Appeals in the 10th 
Circuit issued a ruling that addressed the analytical approach used by 
the Service to estimate the economic impacts associated with the 
critical habitat designation for the southwestern willow flycatcher. 
Specifically, the court rejected the approach used by the Service to 
define and characterize baseline conditions. Defining the baseline is a 
critical step within an Economic Analysis, as the baseline in turn 
identifies the type and magnitude of incremental impacts attributed to 
the policy or change under scrutiny. In the flycatcher analysis, the 
Service defined baseline conditions to include the effects associated 
with the listing of the flycatcher and, as is typical of many 
regulatory analyses, proceeded to present only the incremental effects 
of the rule.
    We believe this analysis complies with the decision by revising the 
approach to defining baseline conditions within the areas of proposed 
critical habitat. This approach to baseline definition employed in the 
analysis of the designation of critical habitat for the northern Great 
Plains piping plover is similar to that employed in previous approaches 
in that the goal is to understand the incremental effects of a 
designation. However, it does provide more extensive discussion of pre-
existing baseline conditions than previous critical habitat economic 
analyses. Typical economic analyses concentrate mostly on identifying 
and measuring, to the extent feasible, economic effects most likely to 
occur because of the action being considered. Baseline conditions, 
while identified and discussed, are rarely characterized or measured in 
any detailed manner because, by definition, these conditions remain 
unaffected by the outcome of the decision being contemplated. While the 
goal of this analysis remains the same as previous critical habitat 
economic analyses that are to identify and measure the estimated 
incremental effects of the proposed rulemaking, the information 
provided in this analysis concerning baseline conditions is more 
detailed than that presented in previous studies. The final addendum to 
this analysis provided further information concerning the baseline and 
potential incremental effects of the designation of critical habitat 
for the northern Great Plains piping plover.
    (8B) Comment--The Service is obligated to consider ``other relevant 
impacts'' in our analysis pursuant to section 4(b)(2) of the Endangered 
Species Act for potential exclusions from critical habitat.
    Response--As previously discussed in this final rule, section 
4(b)(2) of the

[[Page 57673]]

Endangered Species Act and 50 CFR 424.19 require us to consider the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude an area from 
critical habitat if we determine that the benefits of exclusion 
outweigh the benefits of designating the area as critical habitat, 
unless that exclusion will lead to extinction of the species. We are 
aware that some areas that we have designated as critical habitat for 
the northern Great Plains piping plover are subject to activities that 
have the potential to change the hydrology of the habitat areas (e.g., 
dam construction, changes in releases and dam operations, dredging and 
draining). We also recognize that many of these activities are subject 
to a Federal nexus. As a result, we expect that future consultations 
will, in part, include planned and future dam operations relating to 
river flow. However, we believe that these resulting consultations will 
not take place solely with respect to critical habitat issues. While it 
is true that altered flows can adversely affect designated critical 
habitat, we believe that our future consultations regarding such 
activities will take place because such actions have the potential to 
adversely affect a federally listed species. We believe that such 
planned projects would require a section 7 consultation despite the 
critical habitat designation. Again, as we have previously mentioned, 
section 7 of the Endangered Species Act requires Federal agencies to 
consult with us whenever actions they fund, authorize, or carry out may 
affect a listed species or its critical habitat.
    (8C) Comment--Many commenters, including 22 counties that passed 
resolutions against critical habitat designation, were concerned that 
the critical habitat designation would have significant adverse 
economic impacts to particular projects, agencies, and/or the economic 
recovery of the entire region.
    Response--During the development of critical habitat for the 
northern Great Plains piping plover, we conducted an analysis of the 
economic impacts that were likely to occur as a result of the 
designation. The results of our analysis are contained in our draft 
Economic Analysis and the final Addendum to the Economic Analysis. 
Because the areas being designated are primarily occupied, our Economic 
Analysis concluded that the designation would not result in significant 
economic impacts to the lands being designated as critical habitat or 
the economic recovery of the region as a whole.
    (8D) Comment--The Draft Economic Analysis of Critical Habitat 
Designation for the northern Great Plains piping plover is flawed, 
inaccurate, contains numerous errors, and makes improper assumptions.
    Response--As previously discussed, section 4(b)(2) of the 
Endangered Species Act and 50 CFR 424.19 requires us to consider the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We published our proposed 
designation of critical habitat for the northern Great Plains piping 
plover in the Federal Register on June 12, 2001 (66 FR 31759). At that 
time, our Division of Economics and their consultants Industrial 
Economics, Inc., and Bioeconomics, Inc., initiated the draft Economic 
Analysis. We made the draft Economic Analysis of the proposed critical 
habitat designation available for review and public comment during a 
30-day public comment period beginning on December 28, 2001 (66 FR 
67165). Subsequently, on March 21, 2002 (67 FR 13123), we reopened the 
public comment period for an additional 60 days because the Service's 
internet electronic mail was inoperable during the initial 30-day 
comment period due to a court order in an unrelated case. Based on the 
public comments received during the open comment periods, a final 
Addendum to the Economic Analysis of critical habitat for the northern 
Great Plains piping plover was drafted. This final Addendum addressed 
the concerns raised through the comment period and considered new data 
and a revised methodology to better quantify coextensive, future 
section 7 impacts. Please refer to the Economic Analysis section of 
this final rule for a more detailed discussion of these documents. 
Copies of both the draft Economic Analysis and the final Addendum 
constitute the final economic analysis and are in the supporting record 
for this rulemaking. They can be inspected by contacting the South 
Dakota field office staff of the Service (refer to the ADDRESSES 
section of this rule).
    (8E) Comment--The Economic Analysis failed to estimate various 
potential economic impacts adequately.
    Response--In the Addendum to the Economic Analysis of Critical 
Habitat Designation for the northern Great Plains piping plover we 
conducted a revised analysis to address all concerns that were brought 
up during the public comment process. We obtained additional data and 
increased our estimates and in other instances we addressed the 
concerns mentioned by particular commenters by explaining why our 
estimate might be more accurate/appropriate. Please refer to the 
Addendum to the Economic Analysis for a more thorough discussion 
regarding potential economic impacts.
    (8F) Comment--No monetary benefits for the survival of the species 
were included in the draft Economic Analysis.
    Response--While we have acknowledged the potential for society to 
experience such benefits in our economic analyses for critical habitat 
rulemakings, our ability to measure these benefits in any meaningful 
way is difficult and imprecise at best. While we are aware of many 
studies that attempt to identify the value (in monetary units) of 
listed species, open space, the use of public lands for recreational 
purposes, the cost of sprawl, etc.; few of these studies provide any 
meaningful information that can be used to develop estimates associated 
with a critical habitat designation.
    The designation of critical habitat will not necessarily affect the 
management of the river systems through dam operations, which makes it 
difficult to draw upon the literature of economic values of such eco-
friendly activities such as eco-tourism and birdwatching. Also, while 
some economic studies attempt to measure the social value of protecting 
endangered species, the species that are often valued are well known 
and easy to identify in contrast to other species. Furthermore, the 
values identified in these studies would be most closely associated 
with the listing of a species as endangered or threatened because the 
listing serves to provide the majority of protection and conservation 
benefits under the Endangered Species Act.
    While we will continue to explore ways that will allow us to 
provide more meaningful descriptions of the potential benefits 
associated with a critical habitat designation, we believe that due to 
the current lack of available data specific to these rulemakings, along 
with the time and resource constraints imposed upon the Service, the 
benefits of a critical habitat designation are best expressed in 
biological terms that can then be weighed against the expected social 
costs of the rulemaking.

Summary of Changes From Proposed Rule

Changes on Alkali Lakes and Wetlands
    Based on a review of public comments received on the proposed 
determination of critical habitat for the northern Great Plains 
breeding population of the piping plover, we re-evaluated our proposed 
designation of critical habitat for the piping plover. In addition, we 
discovered some potential errors in the alkali lakes that were

[[Page 57674]]

included or excluded from the proposed rule in our reevaluation. This 
re-evaluation resulted in the following changes that are reflected in 
this final determination.
    Our review also indicated we did not apply the alkali lakes 
criteria consistently during our initial review for the proposed rule. 
We included an area in the proposed critical habitat designation if 
data showed birds at sites in 2 out of 10 years. For example, several 
sites were proposed as critical habitat that do not meet the criteria. 
These sites have been eliminated from the final critical habitat 
designation.
    The NDNG has completed the Camp Grafton Integrated Natural 
Resources Management Plan which includes Lake Coe. This plan provides a 
benefit for piping plovers on Lake Coe; includes implementation 
assurances and includes an opportunity for adaptive management. 
Therefore, the area is not in need of special management and at the 
request of the NDNG, we have excluded the NDNG property on Lake Coe 
from critical habitat designation.
    Those alkali lakes and wetlands eliminated are reported in Table 3.

                   Table 3.--Sites Proposed as Critical Habitat, But Do Not Meet the Criteria
----------------------------------------------------------------------------------------------------------------
             Map No.                    Common name                             Survey data
----------------------------------------------------------------------------------------------------------------
McLean 1........................  Blue Hill WPA..........  Surveyed 4 years; 2 adults in 1996.
McLean 9........................  Fisher Lake............  Surveyed 6 years; no birds.
McHenry 1, Pierce 2.............  Smokey Lake............  Surveyed 2 years; 1 adult in 1994.
Pierce 1........................  Meyer WPA..............  Surveyed 6 years; 6 adults in 1994.
Burleigh 1......................  Hysterical 02..........  Surveyed 2 years; no birds.
Burleigh 3......................  Hertz Lake.............  Surveyed 5 years; 7 adults in 1993.
Burleigh 6......................  Trusty.................  Surveyed 8 years; 4 adults in 1995.
Buleigh 8, Kidder 6.............  Stoney Slough..........  Surveyed 1 year; 2 adults in 1995.
Kidder 5........................  McPhail WMA............  Surveyed 6 years; 4 adults in 1993.
Kidder 8........................  Lake Etta..............  Surveyed 4 years; no birds.
Kidder 9........................  Lake George............  Surveyed 5 years; 5 adults in 1993.
Kidder 10.......................  Mud Lake South.........  Surveyed 2 years; no birds.
Emmons 1........................  Sisco-Fallgatter WPA...  Surveyed 4 years; 1 adult in 1994.
Burleigh 2......................  Salt Lake..............  Surveyed 6 years; 43 adults in 1992.
Eddy 1..........................  Lake Coe...............  Exclusion Request from NDNG.
Sheridan 11 (MT)................  Peterson Lake..........  Surveyed 1 year; 1 adult in 1988.
----------------------------------------------------------------------------------------------------------------

    Four sites originally proposed as critical habitat were re-
described because of--(1) a name change; or (2) the site was included 
in the proposed rule, but was not identified as a separate wetland 
basin because it was part of a complex of wetlands, with wetlands 
located adjacent to each other. The four sites include--Unit ND-1, 
Divide 4; Unit ND-2, Burke 3; Unit ND-4, McLean 1, McLean 8.

Missouri River Changes

    Lake Francis Case, Missouri River (107.5 mi or 172.9 km), and 
Nelson Reservoir (4,559-ac 1,845-ha) were excluded from critical 
habitat designation as described above in the Missouri River and 
Reservoir section and comment (3D). Lake Sharpe was not included 
because this reservoir reach has only supported a few pairs of birds on 
one beach since listing and, therefore, is not considered essential and 
do not meet the definition of critical habitat. However, a small 
peninsula/island within the Lower Brule Sioux Tribe Reservation 
boundary is considered an area in need of special management. The Tribe 
and the Service believe this area if managed could help restore piping 
plovers to this reservation. Although this site is an area in need of 
special management, we cannot designate this area at this time because 
it was not in the proposed rule and thus was not subject to public 
comment. However, this area could be considered in a future amendment 
to the critical habitat designation.

Mapping Changes

    Mapping changes were made for alkali lakes and wetlands. All of the 
alkali lakes and wetlands were mapped to include a UTM coordinate at 
the center point of each site. This was done to provide a better legal 
description for these sites. Unit description changes also were made to 
clarify understanding of all units. These changes include adding county 
names, acreages, and river miles or river locators (i.e., bridges). 
Maps were changed for clarity and thus the mapping units increased in 
number.

Primary Constituent Element Changes

    Some people had trouble understanding the primary constituent 
elements. We re-wrote this section to try and make this section more 
readable. We also identified the primary constituent elements into 
biological and physical components. We are required to base critical 
habitat determinations on the best scientific and commercial data 
available and to consider physical and biological features (primary 
constituent elements) that are essential to conservation of the 
species, and that may require special management considerations and 
protection. These include, but are not limited to--(1) space for 
individual and population growth, and for normal behavior; (2) food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproduction, rearing (or development) of offspring; and (5) habitats 
protected from disturbance or that are representative of the historic 
geographical and ecological distributions of a species. We defined one 
overriding primary constituent element as biological component that 
must be present at all sites. That biological component is the dynamic 
ecological processes that create and maintain piping plover habitat. 
Without this biological process the physical component of the primary 
constituent elements would not be able to develop. The biological 
primary constituent element, i.e., dynamic ecological processes, 
creates different physical primary constituent elements on the 
landscape. These physical primary constituent include mixosaline to 
hypersaline wetlands (Cowardin et al. 1979), rivers, reservoirs, and 
inland lakes.

Nebraska Changes

    The reach of the Platte River was reduced by 23 mi and the Niobrara 
River was reduced by 9 mi based on new information provided during the 
comment period by a peer reviewer. This information indicated that 
survey

[[Page 57675]]

information for the excluded areas were historical and not recent 
(since listing).

Tribal Changes

    We have modified all Tribal sections of the rule to recognize 
reservation boundaries and Tribal trust lands. This designation does 
not and cannot make any legal conclusions on ownership of lands, 
including any submerged lands or determine which lands are held in 
trust. Previously in the proposed rule this information had not been 
provided. Tables 1 and 2 also have been modified to reflect Tribal 
information.

Economic Analysis

    Section 4(b)(2) of the Endangered Species Act requires us to 
designate critical habitat on the basis of the best scientific and 
commercial information available, and to consider the economic and 
other relevant impacts of designating these areas as critical habitat. 
We may exclude areas from critical habitat upon a determination that 
the benefits of such exclusions outweigh the benefits of designating 
these areas as critical habitat. We cannot exclude areas from critical 
habitat when the exclusion will result in the extinction of the 
species.
    The Economic Analysis must examine the incremental economic effects 
of the critical habitat designation above those effects of the listing. 
Economic effects are measured as changes in national income, regional 
jobs, and household income. A draft analysis of the economic effects of 
the critical habitat designation for the northern Great Plains breeding 
population of the piping plover was prepared (Bioeconomics, Inc., 2001) 
and made available for public review (December 28, 2001 to January 28, 
2002, 66 FR 67165). We also completed the Economic Analysis that 
incorporated public comments, information gathered since the draft 
analysis, and changes to the critical habitat designation in an 
addendum. This analysis finds that over the next 10 years, total annual 
Endangered Species Act Section 7 consultation costs associated with 
activities potentially affecting piping plover due to designation of 
critical habitat would be a maximum of approximately $58,000 per year. 
This cost estimate is based on the number of anticipated informal and 
formal consultations generated because of the critical habitat 
designation. It also acknowledges that there might be some project 
delays because of the consultation requirement. Overall, the report 
finds that all associated impacts would be minimal.
    The analysis found that critical habitat designation for the plover 
will result in minimal economic impacts. We have determined that these 
economic impacts do not warrant excluding any areas from the 
designation.
    A copy of the final Economic Analysis is included in our 
administrative record and may be obtained by contacting our office (see 
ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and has been reviewed by the Office of Management and 
Budget (OMB), under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government.
    The northern Great Plains breeding population of piping plover was 
listed as a threatened species in 1986. In Fiscal Years 1992 through 
2000, we conducted 90 formal section 7 consultations with other Federal 
agencies (88 of these included minor water depletion work done in 
Nebraska, Colorado, and Wyoming, which involved the Platte River) to 
ensure that their actions are not likely to jeopardize the continued 
existence of the piping plover. Approximately 1,207.5 mi (1,943.3 km) 
and 183,422 ac (74,228.4 ha) of the areas encompassing critical habitat 
for the northern Great Plains breeding population of piping plovers are 
currently unoccupied by nesting piping plovers.
    Under the Endangered Species Act, critical habitat may not be 
adversely modified or destroyed by a Federal agency action; the 
Endangered Species Act does not impose any restrictions through 
critical habitat designations on non-Federal persons unless they are 
conducting activities funded or otherwise sponsored or permitted by a 
Federal agency (see Table 4). Section 7 requires Federal agencies to 
ensure that they are not likely to jeopardize the continued existence 
of the species. Based upon our experience with the northern Great 
Plains breeding population of the piping plover, we concluded that any 
Federal action or authorized action that could potentially cause 
adverse modification of the proposed critical habitat would almost 
always be considered as ``jeopardy'' under the Endangered Species Act.

       Table 4.--Activities Potentially Impacted by Piping Plover Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                               Additional activities potentially
    Categories of activities       Activities potentially affected by species     affected by critical habitat
                                                listing only \1\                        designation \2\
----------------------------------------------------------------------------------------------------------------
Federal activities potentially    Direct take and activities such as removing  None in occupied habitat. In
 affected \3\.                     or destroying piping plover breeding         unoccupied habitat, no
                                   habitat, whether by mechanical, chemical,    additional types of activities
                                   or other means (e.g., construction,          will be affected but
                                   wetland drainage (subsurface or surface)     consultation will be required on
                                   road building, boat launch and marina        these activities in additional
                                   construction or maintenance, dam             areas.
                                   construction and management, bank
                                   stabilization); regulation of water flows,
                                   damming, diversion, and channelization;
                                   recreational activities that significantly
                                   deter the use of suitable habitat areas by
                                   piping plovers or alter habitat through
                                   associated maintenance activities (e.g.,
                                   recreational vehicle access, walking
                                   paths); any activity that results in
                                   changing the hydrology of habitat areas
                                   (e.g., dam construction, changes in
                                   releases and dam operations, dredging,
                                   draining); sale, exchange, or lease of
                                   Federal land that contains suitable
                                   habitat that may result in the habitat
                                   being destroyed or appreciably degraded
                                   (e.g., shoreline development, building of
                                   recreational facilities, road building);
                                   activities that may result in increased
                                   human activity and disturbance).

[[Page 57676]]

 
Private and other non-Federal     Direct take and activities such as removing  None in occupied habitat. In
 activities potentially affected   or destroying piping plover habitat,         unoccupied habitat, no
 \4\.                              whether by mechanical, chemical or other     additional types of activities
                                   means (e.g., construction, wetland           will be affected but
                                   drainage (subsurface and surface) road       consultation will be required on
                                   building, boat launch and marina             these activities in additional
                                   construction or maintenance, dam             areas.
                                   construction and management, bank
                                   stabilization); any activity that results
                                   in changing the hydrology of habitat areas
                                   (e.g., dam construction, changes in
                                   releases and dam operations, dredging,
                                   draining) regulation of water flows,
                                   damming, diversion, and channelization;
                                   recreational activities that significantly
                                   deter the use of suitable habitat areas by
                                   piping plovers and appreciably decreasing
                                   habitat value or quality (e.g., increased
                                   predation, invasion of exotic species,
                                   increased human presence or disturbance)
                                   that require a Federal action (permit,
                                   authorization, or funding).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents impacts of the final rule listing the piping plover (December 11, 1985) (50 FR 50726)
  under the Endangered Species Act.
\2\ This column represents impact of the critical habitat designation above and beyond those impacts resulting
  from listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.

    Accordingly, the designation of currently occupied areas as 
critical habitat is not anticipated to have any incremental impacts on 
what actions may or may not be conducted by Federal agencies or non-
Federal persons that receive Federal authorization or funding. Non-
Federal persons who do not have a Federal connection to their actions 
are not restricted by the designation of critical habitat; however, 
they continue to be bound by the provisions of the Endangered Species 
Act concerning ``take'' of the species.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions are not likely to jeopardize the continued 
existence of piping plovers since the listing in 1986. The prohibition 
against adverse modification of critical habitat is not expected to 
impose any restriction in addition to those that currently exist in 
occupied areas of critical habitat. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this action for any inconsistencies with other Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
are not likely to jeopardize the continued existence of the species, 
and, as discussed above, we do not anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have any additional effects in areas of occupied habitat.
    (d) The OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the 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. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to require a 
certification statement. In this rule, we are certifying that the 
critical habitat designation for northern Great plains breeding 
population of piping plovers will not have a significant effect on a 
substantial number of small entities. The following discussion explains 
our rationale.
    Small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production). We apply the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. While the SBREFA does not explicitly 
define ``substantial number,'' the Small Business Administration, as 
well as other federal agencies, have interpreted this to represent an 
impact on 20 percent or greater of the number of small entities in any 
industry. In some circumstances, especially with critical habitat 
designations of limited extent, we may aggregate across all industries 
and consider whether the total number of small entities affected is 
substantial. In estimating the numbers of small

[[Page 57677]]

entities potentially affected, we also consider whether their 
activities have any Federal involvement. Designation of critical 
habitat only affects activities conducted, funded, or permitted by 
Federal agencies. Some kinds of activities are unlikely to have any 
Federal involvement and so will not be affected by critical habitat 
designation. In areas where the species is present, Federal agencies 
already are required to consult with us under section 7 of the Act on 
activities that they fund, permit, or implement that may affect 
northern Great Plains piping plovers. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities.
    Therefore, the estimated impacts due solely to the designation of 
critical habitat for the plover are examined in the context of the 
SBREFA analysis. Of the projects that are potentially affected by 
section 7 implementation for the plover, a few occur exclusively on 
land managed by the Service, and thus do not have any third-party 
involvement. Small entities should not be affected by section 7 
implementation for affected projects with the Fish and Wildlife Service 
(activities associated with National Wildlife Refuges).
    Of the projects that are potentially affected by section 7 
implementation for the plover that do not occur exclusively on Federal 
lands, many are expected to involve no project modifications, or very 
minor ones (e.g., minor delays in project timing, installing 
informational signs, or requiring relatively minor contributions to 
fish and wildlife conservation funds). Overall, less than 56 percent of 
formal plover consultations and only 8 percent of informal 
consultations are anticipated to have any third party costs associated 
with them beyond administrative costs. The greatest share of the costs 
associated with the consultation process stems from project 
modifications and mitigation (as opposed to the consultation itself). 
Indeed, costs associated with the consultation itself are relatively 
minor, with third party costs estimated to range from $1,200 to $4,100 
per consultation. Therefore, small entities are unlikely to be 
significantly affected by consultations that do not involve costly 
project modifications.
    The draft Economic Analysis and final Addendum contain the factual 
bases for this certification and contain a complete analysis of the 
potential economic effects of this designation. Copies of these 
documents are in the supporting record for this rulemaking and are 
available at the Service's South Dakota Field Office (refer to 
ADDRESSES section).
    In summary, we have considered whether this rule could result in 
significant economic effects on a substantial number of small entities. 
We have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Therefore, we are certifying that 
the designation of critical habitat for the northern Great Plains 
breeding population of the piping plover will not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
a regulatory flexibility analysis is not required.

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

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This final designation of 
critical habitat: (a) Does not have an annual effect on the economy of 
$100 million; (b) will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; and (c) does not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. As discussed in the economic 
analysis, future potential section 7 costs in areas that we are 
designating as critical habitat for the northern Great Plains breeding 
population of the piping plover are anticipated to have a total 
estimated economic effect ranging between approximately $3.5 million 
and $6.0 million over 10 years. Furthermore, because all the areas that 
we are designating as critical habitat in this rule currently support 
populations of the northern Great Plains breeding population of the 
piping plover, the Service would consult on the same range of 
activities in the absence of this critical habitat designation and the 
above costs are most appropriately attributable to the section 7 
jeopardy provisions of the Act due to the listing of the species (see 
``Effects of Critical Habitat'' section).
    Proposed and final rules designating critical habitat for listed 
species are issued under the authority of the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.). Competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises will not be 
affected by the final rule designating critical habitat for this 
species. Therefore, we anticipate that this final rule will not place 
significant additional burdens on any entity.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) which applies to regulations that significantly affect energy 
supply, distribution, and use. Executive Order 13211 requires agencies 
to prepare Statements of Energy Effects when undertaking certain 
actions. The primary land uses within designated critical habitat 
include agricultural and recreational. Significant energy production, 
supply, and distribution facilities are not included within designated 
critical habitat. Therefore, this action does not represent a 
significant action affecting energy production, supply, and 
distribution facilities; and no Statement of Energy Effects is 
required. Additionally, all of the areas designated as critical habitat 
for the northern Great Plains breeding population of the piping plover 
are considered to be occupied by this listed species. Therefore, any 
consultation required pursuant to section 7 of the Act by a Federal 
agency undertaking an action in these areas would likely be triggered 
by the presence of the listed species, whether or not critical habitat 
for the species was designated.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule, will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any of their 
actions involving Federal funding or authorization must not destroy or 
adversely modify the critical habitat.
    (b) This rule, will not produce a Federal mandate of $100 million 
or greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat for the piping plover imposes no obligations on State 
or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This determination will not ``take'' private property 
and will not alter the long-term value of private

[[Page 57678]]

property. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease the current restrictions on private property concerning take 
of piping plovers as defined in section 9 of the Endangered Species Act 
and its implementing regulations (50 FR 17.31). Due to current public 
knowledge of the species' protection, the prohibition against take of 
piping plovers both within and outside of the designated areas, and the 
fact that critical habitat provides no incremental restrictions, we do 
not anticipate that property values will be affected by the critical 
habitat designation. While real estate market values may temporarily 
decline following designation, due to the perception that critical 
habitat designation may impose additional regulatory burdens on land 
use, we expect any such impacts to be short term. Additionally, 
critical habitat designation does not preclude development of habitat 
conservation plans and issuance of incidental take permits. Landowners 
in areas that are included in the designated critical habitat will 
continue to utilize their property in ways consistent with the 
conservation of the piping plover.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, the Service requested information from and coordinated 
development of this critical habitat determination with appropriate 
State and Tribal resource agencies in Minnesota, Montana, North Dakota, 
South Dakota, Nebraska, Iowa, Kansas, and Colorado as well as during 
the listing process. We will continue to coordinate any future 
designation of critical habitat for the northern Great Plains piping 
plover with the appropriate State and Tribal agencies. The designation 
of critical habitat for the piping plover imposes few additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State, Tribal, and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas essential to the conservation of the species are more 
clearly defined and the primary constituent elements of the habitat 
necessary to the conservation of the species are specifically 
identified. While making this definition and identification does not 
alter where and what federally sponsored activities may occur, doing so 
may assist these local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Endangered Species Act. The determination uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the northern Great Plains breeding 
population of piping plover.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required. An agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information unless 
it displays a valid OMB control number.

National Environmental Policy Act

    Our position is that, outside the 10th Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996)). However, when the range of the species 
includes States within the 10th Circuit, pursuant to the 10th Circuit 
ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75] F.3d 1429 (10th Cir. 1996), we will complete a 
NEPA analysis with an Environmental Assessment. The range of the 
northern Great Plains breeding population of the piping plover includes 
States within the 10th Circuit; therefore, we completed a draft 
Economic Analysis and announced its availability in the Federal 
Register on July 6, 2001 (66 FR 35580). After reviewing comments on the 
draft Economic Analysis, we completed an Environmental Assessment and 
Finding of No Significant Impact on the designation of critical habitat 
for the northern Great Plains breeding population of the piping plover.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
readily acknowledge our responsibility to communicate meaningfully with 
recognized Federal Tribes on a government-to-government basis. We 
believe certain Tribal trust resources are essential for the 
conservation of the piping plover because they support essential 
populations and habitat. In Montana, plovers have nested on alkali 
wetlands within the Blackfeet Reservation. However, nesting on the 
Blackfeet Reservation is rare and none of this habitat was proposed for 
critical habitat.
    Many Native American people live along the Missouri River and are 
dependent on the natural resources of the Missouri River Basin. Eight 
Tribes along the Missouri River have critical habitat designated within 
the boundary of their reservation including the Assiniboine and Sioux 
Tribes of Ft. Peck, Montana; the Standing Rock Sioux Tribe, and the 
Three Affiliated Tribes (Mandan, Hidatsa, and Arikara Tribes) of the 
Ft. Berthold Reservation, in North Dakota; the Standing Rock Sioux 
Tribe, the Cheyenne River Sioux Tribe, the Lower Brule Sioux Tribe, the 
Crow Creek Sioux Tribe, and the Yankton Sioux Tribe in South Dakota; 
and the Santee Sioux Tribe of Nebraska. Additionally, eight Tribes have 
land or Tribal trust land on submerged sites or sandbars/islands within 
the critical habitat designation of the Missouri River. These Tribes 
include--the Assiniboine and Sioux Tribes of Ft. Peck, Montana; the 
Standing Rock Sioux Tribe, and the Three Affiliated Tribes (Mandan 
Hidatsa and Arikara Tribes) of the Ft. Berthold Reservation, in North 
Dakota; the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, 
the Lower Brule Sioux Tribe, the Crow Creek Sioux Tribe, and the 
Yankton Sioux Tribe in South Dakota and the Santee Sioux Tribe of 
Nebraska. The Turtle Mountain Tribe has mineral rights to land along 
the Missouri River in North Dakota that was taken by the Corps for the 
Missouri River mainstem system. These habitats on the Missouri River 
within the boundary of a Tribe, or held by the Tribe, individual Indian 
or held in Trust by the United States are essential to the recovery of 
the piping plover. We also coordinated with three

[[Page 57679]]

additional Tribes, including the Rosebud Sioux and Oglala Sioux Tribes 
of South Dakota and the Winnebago Tribe of Nebraska, with interest in 
lands on the Missouri River because of their recognition of the Ft. 
Laramie Treaty of 1868 or other issues.
    The Assiniboine and Sioux Tribes of Ft. Peck have ownership of 
sandbars and islands of the Missouri River from the north shoreline of 
the Missouri River to the mid-channel of the river where their 
Reservation borders the river. The Reservation borders the Missouri 
River for 81.7 mi (131.5 km) in Missouri River Unit MT-3. Piping 
plovers nest on sandbars and islands of the Assiniboine and Sioux 
Tribes of Ft. Peck. We believe that these Tribal lands are essential 
for the conservation of the piping plover and we have designated 
critical habitat for the piping plover on these lands of the 
Assiniboine and Sioux Tribes of Ft. Peck. However, the Ft. Peck Tribes 
have expressed concerns over designation of critical habitat on their 
lands because--(1) perception of burdens from the designation; (2) 
their view that it has never been established that the Endangered 
Species Act applies to Indian Tribes and their natural resources, and 
(3) their plan to develop a HCP for species along the Missouri River 
including the piping plover. The Ft. Peck Tribal land within the high 
banks of the Missouri river will remain in the critical habitat 
designation. When the Ft. Peck Tribes have completed a HCP the Service 
will review the plan for removal from the critical habitat designation.
    Five miles of the Niobrara River in the critical habitat 
designation is within the reservation boundary of the Ponca Tribe in 
Nebraska. No Tribal trust lands have been identified for the Niobrara 
River.
    In 1999 the ``Cheyenne River Sioux Tribe, Lower Brule Sioux Tribe, 
State of South Dakota Terrestrial Wildlife Habitat Restoration'' was 
passed into law under Title VI of the Water Resources Development Act. 
This Act has transferred much of the Federal land and recreation areas 
in South Dakota managed by the Corps to the State and the BIA (for the 
Cheyenne River and Lower Brule Sioux Tribes). Although land to be 
transferred in fee title is above the top of the maximum operating pool 
on Missouri River reservoirs, and not likely to have the primary 
constituent elements for piping plover critical habitat, under this 
legislation the BIA will obtain, via easement, the management authority 
to the water's edge, an area which is likely to contain the primary 
constituent elements. Land adjacent to the Cheyenne River Sioux Tribe 
along Lake Oahe, Missouri River, South Dakota, and Lower Brule Sioux 
Tribe along Lakes Sharpe and Francis Case, Missouri River, South 
Dakota, will be transferred to the BIA in the near future.

Relationship to Canada

    In the 1988 Recovery Plan, one of our criteria for recovery and 
delisting of the piping plover is that the Canadian Recovery Objective 
must be met for the prairie region. Because of this, we have some joint 
conservation projects ongoing with Canada. However, according to CFR 
402.12(h), ``Critical habitat shall not be designated with foreign 
countries or in other areas outside of the United States 
jurisdiction.'' Since the areas of joint conservation do not fall 
within the United States jurisdiction, they are not included in this 
critical habitat designation.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the South Dakota Ecological Services Field 
Office (see ADDRESSES).

Authors

    The primary author of this rule is Nell McPhillips, Biologist, of 
the South Dakota Ecological Services Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record-keeping requirements, Transportation.


    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 ``piping plover'' under 
``BIRDS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

[[Page 57680]]

 
 Do..............................  ......do............  ......do...........  Entire, except       T                       211           NA           NA
                                                                               those areas where
                                                                               listed as
                                                                               endangered above.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec.  17.95(b) by adding critical habitat for the piping 
plover (Charadrius melodus)--Northern Great Plains Breeding Population 
in the same alphabetical order as the 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)--Northern Great Plains 
Breeding Population
    1. Critical habitat units are depicted for Minnesota, Montana, 
Nebraska, North Dakota, and South Dakota, on the maps and as 
described below.
    2. The one overriding primary constituent element (biological) 
required to sustain the northern Great Plains breeding population of 
piping plovers that must be present at all sites is the dynamic 
ecological processes that create and maintain piping plover habitat. 
Without this biological process the physical component of the 
primary constituent elements would not be able to develop. These 
processes develop a mosaic of habitats on the landscape that provide 
the essential combination of prey, forage, nesting, brooding and 
chick-rearing areas. The annual, seasonal, daily, and even hourly 
availability of the habitat patches is dependent on local weather, 
hydrological conditions and cycles, and geological processes. The 
biological primary constituent element, i.e., dynamic ecological 
processes, creates different physical primary constituent elements 
on the landscape. These physical primary constituent elements exist 
on different habitat types found in the northern Great Plains, 
including mixosaline to hypersaline wetlands (Cowardin et al. 1979), 
rivers, reservoirs, and inland lakes. These habitat types or 
physical primary constituent elements that sustain the northern 
Great Plains breeding population of piping plovers are described as 
follows:
    i. On prairie alkali lakes and wetlands, the physical primary 
constituent elements include--(1) shallow, seasonally to permanently 
flooded, mixosaline to hypersaline wetlands with sandy to gravelly, 
sparsely vegetated beaches, salt-encrusted mud flats, and/or 
gravelly salt flats; (2) springs and fens along edges of alkali 
lakes and wetlands; and (3) adjacent uplands 200 ft (61 m) above the 
high water mark of the alkali lake or wetland.
    ii. On rivers the physical primary constituent elements 
include--sparsely vegetated channel sandbars, sand and gravel 
beaches on islands, temporary pools on sandbars and islands, and the 
interface with the river.
    iii. On reservoirs the physical primary constituent elements 
include--sparsely vegetated shoreline beaches, peninsulas, islands 
composed of sand, gravel, or shale, and their interface with the 
water bodies.
    iv. On inland lakes (Lake of the Woods) the physical primary 
constituent elements include--sparsely vegetated and windswept sandy 
to gravelly islands, beaches, and peninsulas, and their interface 
with the water body.
    3. Critical habitat does not include existing developed areas 
such as mainstem dam structures, buildings, marinas, boat ramps, 
bank stabilization and breakwater structures, row cropped or plowed 
agricultural areas, roads and other lands (e.g., high bank bluffs 
along Missouri River) unlikely to contain primary constituent 
elements essential for northern Great Plains piping plover 
conservation.

Minnesota

    Projection: UTM Zone 15, NAD83, GRS 1980, Meters.
    Unit MN-1: Rocky Point, Morris Point, and Pine and Curry Island.
    This unit consists of sparsely vegetated and windswept sandy to 
gravelly islands, beaches, and peninsulas, and their interface with the 
water body (as defined in item 2 i-iv above) located in Lake of the 
Woods County in the following Township, Range, and Section(s):
    Pine and Curry Islands: T. 162 N., R. 31 W., Sec. 1; T. 162 N., R. 
32 W., Sec. 6, 10-12; Morris Point: T. 162 N., R. 32 W., Sec. 15-16; 
Rocky Point: T. 163 N., R. 34 W.; Sec. 4-5, 9.
BILLING CODE 4310-55-P

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Montana

    Projection: UTM Zone 13, NAD27, Clarke 1866, Meters.
    Unit MT-1: Sheridan 1-20.
    This unit consists of 20 alkali lakes and wetlands (as defined in 
item 2. i-iv. above) located in Sheridan County in the following 
Township, Range, and Section(s). The description that follows includes 
site map number; common name in parentheses; Township, Range, and 
Section(s); and UTM coordinate (X, Y) of the center point:
    Sheridan 1 (Salt Lake); T. 37 N., R. 56 E., Sec. 1, 2, 12; T. 37 
N., R. 57 E., Sec. 7; 551735.070, 5426228.954; Sheridan 2 (Galloway 
Lake); T. 37 N., R. 57 E., Sec. 7, 8, 17; 18; 555270.876, 5423341.594; 
Sheridan 3 (Lake North Of Espen); T. 37 N., R. 57 E., Sec. 7, 8, 17; 
560733.568, 5420004.719; Sheridan 4 (Throntveit Lake); T. 37 N., R. 58 
E., Sec. 28-33; 565501.589, 5419571.004; Sheridan 5 (Dog Leg WPA); T. 
37 N., R. 58 E., Sec. 20; 566167.080, 5421711.910; Sheridan 6 (Anderson 
Lake); T. 37 N., R. 58 E., Sec. 15, 16, 21, 22, 27, 28; 567829.681, 
5421938.009; Sheridan 7 (Gjesda; East WPA); T. 37 N., R. 58 E., Sec. 
27, 28, 33; 568018.405, 5419742.779; Sheridan 8 (Flat Lake); T. 37 N., 
R. 58 E., Sec. 28, 32, 33; T. 36 N., R. 58 E., Sec. 2, 3; 566825.455, 
5418175.594; Sheridan 9 (Lake North Of Stateline); T. 37 N., R. 58 E., 
Sec. 33, 34, T. 36 N., R. 58 E., Sec. 1; 568493.188, 5417985.314; 
Sheridan 10 (Round/Westby Lake); T. 36 N., R. 58 E., Sec. 1, 12, 13; 
568830.499, 5415144.074; Sheridan 11 (Upper Goose Lake); T. 36 N., R. 
58 E., Sec. 24, 25; 568964.588, 5411105.524; Sheridan 12 (West Goose 
Lake); T. 36 N., R. 58 E., Sec. 22, 23, 25-27; 567098.230, 5410658.484; 
Sheridan 13 (Goose Lake); T. 36 N., R. 58 E., Sec. 25, 36; T. 35 N., R. 
58 E., Sec. 1, 2, 11-14; 568569.535, 5406908.114; Sheridan 14 (Big 
Slough WPA); T. 35 N., R. 58 E., Sec. 35; T. 34 N., R. 58 E., Sec. 1, 
3, 11; 566846.207, 5397179.894; Sheridan 15 (Clear Lake); T. 34 N., R. 
58 E., Sec. 32, 33; T. 33 N., R. 58 E., Sec. 4, 5; 563265.689, 
5389005.274; Sheridan 16 (Erickson WPA); T. 33 N., R. 58 E., Sec. 24, 
25; 569395.858, 5382318.164; Sheridan 17 (Parry Lake); T. 33 N., R. 58 
E., Sec. 22, 26, 27, 34, 35; 566648.805, 5381422.559; Sheridan 18 
(Katy's Lake); T. 32 N., R. 58 E., Sec. 8, 16-18; 558661.047, 
5375001.119; Sheridan 19 (Deep Lake); T. 32 N., R. 57 E., Sec. 32; 
548829.097, 5370424.894; Sheridan 20 (Medicine Lake); T. 31 N., R. 56 
E., Sec. 1-6, 8-12, 13-15, 23, 24; T. 31 N., R. 57 E., Sec. 4-8, 18; T. 
32 N., R. 55 E., Sec. 36, T. 32 N., R. 56 E., Sec. 25, 31-36; T. 32 N., 
R. 57 E., Sec. 28-34; 544469.013, 5368031.399.

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    Unit MT-2: Missouri River--approximately 125.4 mi (201.8 km) from 
just west of Wolf Point, McCone County, Montana, at RM 1712.0 
downstream to the Montana/North Dakota border, Richland County, 
Montana, and McKenzie County, North Dakota, at RM 1586.6 including TRS 
listed below. The Missouri River in this unit flows through reservation 
lands of the Assiniboine and Sioux Tribes of Fort Peck (81.7 mi (131.5 
km), State, and privately owned land.
    T. 26 N., R. 58 E., Sec. 1-6, T. 26 N., R. 59 E., Sec. 3-6, 9, 10, 
13-16, 22-24; T. 27 N., R. 47 E., Sec. 21-24, 27-28, 33-34; T. 27 N., 
R. 48 E., Sec. 13-16, 19-22, 28-29, T. 27 N., R. 49 E., Sec. 13-18, 24; 
T. 27 N., R. 50 E., Sec. 14-21, 23-26; T. 27 N., R. 51 E., Sec. 7-8, 
17-27, 30; T. 27 N., R. 52 E., Sec. 10-16, 19, 21-23, 27-32; T. 27 N., 
R. 53 E., Sec. 1-3, Sec. 6-7, 18; T. 27 N., R. 54 E., Sec. 1-6, 9-12; 
T. 27 N., R. 55 E., Sec. 1-5, 7-11; T. 27 N., R. 56 E., Sec. 2-6, 8-9, 
11, 13-14, 24; T. 27 N., R. 57 E., Sec. 18-21, 27-28, 33-36; T. 27 N., 
R. 58 E., Sec. 23, 25-27, 31-32, 34-36; T. 27 N., R. 59 E., Sec. 29-32; 
T. 28 N., R. 53 E., Sec. 27-31, 33-34; T. 28 N., R. 54 E., Sec. 31-33; 
T. 28 N., R. 55 E., Sec. 33-35.

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    Unit MT-3, Fort Peck Reservoir--This unit encompasses approximately 
77,370 acres (31,311 ha) of Fort Peck Reservoir, located entirely 
within the Charles M. Russell National Wildlife Refuge in Garfield, 
McCone, and Valley Counties. This unit consists of the following TRS:
    T. 22 N., R.42E., Sec. 1-3, 10-15, 24; T. 22 N., R. 43 E., Sec. 6-
8, 18-20; T. 23 N., R. 42 E., Sec. 10-15; T. 23 N., R. 42 E., Sec. 22-
27, 34-36; T. 23 N., R. 43 E., Sec. 18-19, 30-31; T. 24 N., R. 41 E., 
Sec. 1-3, 10-13, 24; T. 24 N., R. 42 E., Sec. 5-8, 16-21, 25-36; T. 25 
N., R. 39 E., Sec. 1-2, 11-12; T. 25 N., R. 40 E., Sec. 1-17, 20-24; T. 
25 N., R. 41 E., Sec. 1-36; T. 25 N., R. 42 E., Sec. 5-6; T. 26 N., R. 
39 E., Sec. 35-36; T. 26 N., R. 40 E., Sec. 31-36; T. 26 N., R. 41 E., 
Sec. 13-17, 19-36; T. 26 N., R. 42 E., Sec. 17-19, 29-32.

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    Unit MT-4: Bowdoin NWR.
    This unit is located on Bowdoin National Wildlife Refuge in 
Phillips County and includes sparsely vegetated shoreline beaches, 
peninsulas, and islands composed of sand, gravel, or shale that 
interface with these water bodies in the following TRS:
    Bowdoin NWR: T. 30 N., R. 31 E., Sec. 1-2, 4, 9-11; T. 31 N., R. 31 
E., Sec. 21-22, 25-28, 33-36.

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Nebraska

    Projection: UTM Zone 14, NAD83.
    Unit NE-1: Platte, Loup, and Niobrara Rivers.
    a. Platte River \1\ Begins at the Lexington bridge over the main 
channel in Dawson County and extends downstream to its confluence with 
the Missouri River in Sarpy County and includes area within the river 
banks in the following Townships, Ranges, and Sections:
---------------------------------------------------------------------------

    \1\ Sections T. 17 N., R. 01 E., sec. 32 and T. 17 N., R. 01 E., 
sec. 33 are designated CH for both Platte and Loup Rivers.
---------------------------------------------------------------------------

    T. 08 N., R. 13 W., Sec. 4-7; T. 08 N., R. 14 W., Sec. 9-12, 15-18; 
T. 08 N., R. 15 W., Sec. 13-21; T. 08 N., R. 16 W., Sec. 7,8, 13-18, 
23, 24; T. 08 N., R. 17 W., Sec. 7,8,10-18; T. 08 N., R. 18 W., Sec. 2-
12; T. 08 N., R. 19 W., Sec. 1-12; T. 08 N., R. 20 W., Sec. 1-12; T. 08 
N., R. 21 W., Sec. 1,2, 12; T. 09 N., R. 10 W., Sec. 3-7; T. 09 N., R. 
11 W., Sec. 1, 11, 12, 14-19; T. 09 N., R. 12 W., Sec. 13, 22-24; 26-
31; T. 09 N., R. 13 W., Sec. 25-27, 31, 33-36; T. 09 N., R. 21 W., Sec. 
20, 21, 27-29, 34-36; T. 10 N., R. 08 W., Sec. 6; T. 10 N., R. 09 W., 
Sec. 1, 11, 12, 14, 15, 21, 22, 28, 29; T. 10 N., R. 10 W., Sec. 25, 
33, 34, 35, 36; T. 11 N., R. 07 W., Sec. 6; T. 11 N., R. 08 W., Sec. 1, 
2, 10, 11, 15, 16, 20, 21, 29 30, 31; T. 11 N., R. 09 W., Sec.36; T. 12 
N., R. 06 W., Sec. 6; T. 12 N., R. 07 W., Sec. 1, 2, 10-12, 14-16, 20-
22, 29-31; T. 12 N., R. 08 W., Sec. 36; T. 13 N., R. 05 W., Sec. 5-7; 
T. 13 N., R. 06 W., Sec. 12-15, 21-23, 28, 29, 31, 32; T. 14 N., R. 04 
W., Sec. 4, 5, 7-9, 18; T. 14 N., R. 05 W., Sec. 13, 14, 22, 23, 24, 
27, 28, 32, 33; T. 14 N., R. 39 W., Sec. 2-5, 11; T. 15 N., R. 03 W., 
Sec. 3-5, 7-9, 17-19; T. 15 N., R. 04 W., Sec. 12-14, 23, 24, 26, 27, 
33, 34; T. 15 N., R. 38 W., Sec. 19, 20, 21, 28-30, 33; T. 15 N., R. 39 
W., Sec. 24, 25, 30, 31, 32, 33, 34; T. 15 N., R. 40 W., Sec. 10, 23, 
24, 25, 26, 36; T. 16 N., R. 01 W., Sec. 1-4, 7-10, 17, 18; T. 16 N., 
R. 02 W., Sec. 10-16, 19-21 29, 30; T. 16 N., R. 03 W., Sec. 25, 26, 
33-36; T. 17 N., R. 01 W., Sec. 36; T. 12 N., R. 10 E., Sec. 3-5, 9-13, 
24; T. 12 N., R. 11 E., Sec. 1, 11, 12, 14-16, 18-21; T. 12 N., R. 12 
E., Sec. 06; T. 13 N., R. 10 E., Sec. 4, 5, 7-9, 17-19, 29, 30, 32, 33; 
T. 13 N., R. 12 E., Sec. 25-28, 31-34, 36; T. 13 N., R. 13 E., Sec. 25, 
26, 30-36; T. 14 N., R. 09 E., Sec. 1,12; T. 14 N., R. 10 E., Sec. 6-8, 
17, 18, 20, 29, 32; T. 15 N., R. 09 E., Sec. 1-3, 11-13, 24, 25, 36; T. 
15 N., R. 10 E., Sec. 19; T. 16 N., R. 01 E., Sec. 1, 2,4-6, 12; T. 16 
N., R. 02 E., Sec. 1-12; T. 16 N., R. 03 E., Sec. 4-6; T. 16 N., R. 08 
E., Sec. 1, 2, 12; T. 16 N., R. 09 E., Sec. 6-9, 16, 17, 21, 22, 27, 
28, 33, 34; T. 17 N., R. 01 E., Sec. 31, 32, 33, 34, 35, 36, T. 17 N., 
R. 03 E., Sec. 25, 26, 27, 31, 32, 33, 34; T. 17 N., R. 04 E., Sec. 9-
12, 14-17, 20, 21, 29, 30; T. 17 N., R. 05 E., Sec. 7-10, 13-15; T. 17 
N., R. 06 E., Sec. 7-9, 14-18, 22-24; T. 17 N., R. 07 E., Sec. 13-24; 
T. 17 N., R. 08 E., Sec. 20, 21, 27-29, 34-36.
    b. Loup River \2\ Entire river beginning at the confluence of the 
North and Middle Loup Rivers to form the Loup River in Howard County, 
to its confluence with the Platte River in Platte County and includes 
area within the river banks in the following Townships, Ranges, and 
Sections:
---------------------------------------------------------------------------

    \2\ See footnote 1.
---------------------------------------------------------------------------

    T. 15 N., R. 06 W., Sec. 06; T. 15 N., R. 07 W., Sec. 1-5, 7-10; T. 
15 N., R. 08 W., Sec. 07, 8, 12-18; T. 15 N., R. 09 W., Sec. 7-18; T. 
16 N., R. 04 W., Sec. 5, 6; T. 16 N., R. 05 W., Sec. 1-5, 7-10, 18; T. 
16 N., R. 06 W., Sec. 13; 14, 22-24, 27-29, 31, 32; T. 16 N., R. 07 W., 
Sec. 36; T. 17 N., R. 01 W., Sec. 16, 17,.18, 21-23, 25, 26; T. 17 N., 
R. 02 W., Sec. 3, 4, 7-10, 13-15, 22-24; T. 17 N., R. 03 W., Sec. 10-
21, 30; T. 17 N., R. 04 W., Sec. 24-28, 32-35; T. 17 N., R. 05 W., Sec. 
35, 36; T. 17 N., R. 01 E., Sec. 29, 30, 32, 33.
    c. Niobrara River: Begins at the bridge south of Norden in Keya 
Paha County and extends downstream to its confluence with the Missouri 
River in Knox County and includes area within the river banks in the 
following Townships, Ranges, and Sections:
    T. 31 N., R. 06 W., Sec. 6; T. 31 N., R. 07 W., Sec. 01-4; T. 32 
N., R. 06 W., Sec. 17-20, 29-31; T. 32 N., R. 07 W., Sec. 29-34, 36; T. 
32 N., R. 08 W., Sec. 7, 8, 15-17, 22-25; T. 32 N., R. 09 W., Sec. 2-6, 
8-12; T. 32 N., R. 10 W., Sec. 1-6, 9-12; T. 32 N., R. 11 W., Sec. 1-3; 
T. 32 N., R. 17 W., Sec. 5, 6; T. 32 N., R. 18 W., Sec. 1-4, 8-10, 16-
19; T. 32 N., R. 19 W., Sec. 19, 20, 22-24, 26-30; T. 32 N., R. 20 W., 
Sec. 19-26; T. 32 N., R. 21 W., Sec. 7, 16, 17, 18, 20-24; T. 32 N., R. 
22 W., Sec. 2-6, 8-14; T. 32 N., R. 23 W., Sec. 1, 2; T. 33 N., R. 11 
W., Sec. 29, 30, 32-34; T. 33 N., R. 12 W., Sec. 17-21, 25-28, 36; T. 
33 N., R. 13 W., Sec. 7-10, 14-18, 23, 24; T. 33 N., R. 14 W., Sec. 1, 
12; T. 33 N., R. 15 W., Sec. 2-5, 7-9, 18; T. 33 N., R. 16 W., Sec. 11-
16, 19-22, 29, 30; T. 33 N., R. 17 W., Sec. 25-27, 31, 33, 34; T. 33 
N., R. 17 W., Sec. 35, 36; T. 33 N., R. 18 W., Sec. 36; T. 33 N., R. 23 
W., Sec. 33, 34, 35; T. 34 N., R. 14 W., Sec. 26-31, 34, 35; T. 34 N., 
R. 15 W., Sec. 25, 35, 36.

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North Dakota

    Projection: UTM Zone 14, NAD27, Clarke 1866, Meters.
    Unit ND-1: Divide 1-10, Williams 1-3.
    This unit consists of 13 alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Divide and Williams Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X,Y) of the center point:
    Divide 1 (McCone Lake); T. 163 N., R. 103 W., Sec. 11, 13, 14, 23, 
24; 132483.986, 5432552.457; Divide 2 (Radar WPA); T. 163 N., R. 101 
W., Sec. 19, T. 163 N., R. 102 W., Sec. 13, 14, 23, 24; 143450.351, 
5431765.782; Divide 3 (Westby Lake); T. 162 N., R. 103 W., Sec. 2, 3, 
10, T. 163 N., R. 103 W., Sec. 34, 35; 130664.334, 5426964.175; Divide 
4 (North Lake); T. 162 N., R. 102 W., Sec. 5, 7, 8, 17; 136194.956, 
5424819.822; Divide 5 (No-Name 01); T. 162 N., R. 103 W., Sec. 11, 13-
15, 22-24; 131550.101, 5423562.595; Divide 6 (Miller Lake) T. 162 N., 
R. 102 W., Sec. 19-21, 28-30; 136221.252, 5420997.659; Divide 7 
(Daneville Lake); T. 161 N., R. 103 W., Sec. 13, 14, 23-26; 131145.927, 
5412367.023; Divide 8 (Johnson WPA); T. 161 N., R. 103 W., Sec. 22, 27; 
129454.347, 5411841.319; Divide 9 (Camp Lake); T. 160 N., R. 103 W., 
Sec. 10, 15-17, 20, 21, 28; 132345.880, 5403610.519; Divide 10 (Africa 
Lake); T. 160 N., R. 103 W., Sec. 28, 29, 32-34; 131067.961, 
5399853.506; Williams 1 (Africa Lake); T. 159 N., R. 103 W., Sec. 4; 
131252.336, 5398158.780; Williams 2 (Twin Lake); T. 159 N., R. 103 W., 
Sec. 8, 9, 16, 17; 130274.523, 5395507.964; Williams 3 (Appam Lake); T. 
159 N., R. 100 W., Sec. 14, 15, 21-23, 27; 161534.618, 5390959.346.
    Unit ND-2: Burke 1-3, Mountrail 1-10, Renville 1.

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[[Page 57694]]


    Unit ND-2: Burke 1-2, Mountrail 1-10, Renville 1.
    This unit consists of 14 alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Burke, Renville, and Mountrail Counties 
in the following Township, Range, and Section(s). The description that 
follows includes site map number; common name in parenthesis; Township, 
Range, and Section(s); and UTM coordinate (X,Y) of the center point:
    Burke 1 (Thompson Lake); T. 160 N., R. 91 W., Sec. 23, 25-27, 34, 
35; 249736.234, 5394198.422; Burke 2 (Knudson Slough); T. 159 N., R. 91 
W., Sec. 16, 21, 27, 28, 33, 34; 245951.025, 5385634.794; Burke 3 (Salt 
Wetland); T. 159 N., R. 91 W., Sec. 33,34, T. 158 N., R. 91 W., Sec. 4; 
246764.949, 5382725.766; Mountrail 1 (Lower Lostwood Lake); T. 158 N., 
R. 91 W., Sec. 4, 5, 8, 17, T. 159 N., R. 91 W., Sec. 33; 244500.547, 
5380906.195; Mountrail 2 (Cottonwood Lake); T. 157 N., R. 92 W., Sec. 
5-9, 16, 17; 234663.178, 5370756.188; Mountrail 3 (White Lake); T. 156 
N., R. 91 W., Sec. 5, 6, T. 157 N., R. 91 W., Sec. 19, 20, 27-35, T. 
157 N., R. 92 W., Sec. 25; 244128.820, 5364745.652; Mountrail 4 (BLM 
01); T. 156 N., R. 91 W., Sec. 13; 254103.216, 5358673.926; Mountrail 5 
(Halvorson WPA); T. 156 N., R. 90 W., Sec. 4, 8-10, 16, 17; 
2588354.936, 5359918.409; Mountrail 6 (Redmond Lake); T. 157 N., R. 89 
W., Sec. 8, 9, 16, 17, 20, 21, 28, 29, 32, 33; 263839.454, 5366646.371; 
Mountrail 7 (Redmond Lake Southeast); T. 157 N., R. 89 W., Sec. 15, 16, 
21, 22, 27, 28; 265502.148, 5366251.040; Mountrail 8 (Palermo SW); T. 
156 N., R. 90 W., Sec. 19-21, 29; 257212.039, 5356658.356; Mountrail 9 
(Piping Plover WPA); T. 156 N., R. 89 W., Sec. 6, 7, 18, T. 156 N., R. 
90 W., Sec. 1, 12, 13; 264548.981, 5359978.921; Mountrail 10 (USA 01); 
T. 156 N., R. 89 W., Sec. 4, 5, 8, 9; 267688.206, 5360; Renville 1 T. 
157 N., R. 84 W., Sec. 6, T. 157 N., R. 85 W., Sec. 1, T. 158 N., R. 84 
W., Sec. 5-9, 16, 17, 20, 21, 28-32, T. 158 N., R. 85 W., Sec. 1, 36, 
T. 159 N., R. 84 W., Sec. 30, 31, T. 159 N., R. 85 W., Sec. 2-4, 10, 
11, 14, 15, 24-26, 36, T. 160 N., R. 85 W., Sec. 18-20, 29, 30, 32, 33, 
34, T. 160 N., R. 86 W., Sec. 1, 2, 11-13, 24, T. 161 N., R. 85 W., 
Sec. 31, 32; 307279.646, 5385022.925;

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    Unit ND-3: Mountrail 11, Ward 1-10.
    This unit consists of 11 alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Mountrail and Ward Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X, Y) of the center point:
    Mountrail 11 (USA 03); T. 155 N., R. 87 W., Sec. 19, 30, T. 155 N., 
R. 88 W., Sec. 24-26, 35, 36; 282515.422, 5344702.765; Ward 1 (Wheeler 
Lake); T. 153 N., R. 86 W., Sec. 6, 7; 292853.430, 5330725.995; Ward 2 
(Schaefer Lake); T. 153 N., R. 86 W., Sec. 4, 5, T. 154 N., R. 86 W., 
Sec. 33; 295503.020, 5331528.170; Ward 3 (Simonson Lake); T. 153 N., R. 
86 W., Sec. 3; 297540.190, 5330903.772; Ward 4 (Weltikot WPA); T. 153 
N., R. 87 W., Sec. 22; 287595.875, 5326568.445; Ward 5 (Galusha WPA); 
T. 153 N., R. 87 W., Sec. 26, 27, 35; 288918.535, 5324257.230; Ward 6 
(LGFR); T. 152 N., R. 86 W., Sec. 5, 6, T. 152 N., R. 87 W., Sec. 1, T. 
153 N., R. 86 W., Sec. 34; 296191.685, 5321732.495; Ward 7 (Roberts 
Lake); T. 152 N., R. 86 W., Sec. 5, 8; 298162.740, 5320754.445; Ward 8 
(Orlein WPA); T. 152 N., R. 87 W., Sec. 4, 5, 8, 9; 289443.885, 
5320877.280; Ward 9 (Foss Lake); T. 151 N., R. 84 W., Sec. 17-20; 
315877.075, 5307516.530; Ward 10 (Danielson WPA); T. 151 N., R. 84 W., 
Sec. 15, 21, 22; 319713.809, 5306604.459.

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    Unit ND-4: McLean 1-8.
    This unit consists of eight alkali lakes and wetlands (as defined 
in item 2 i-iv above) located in McLean County in the following 
Township, Range, and Section(s). The description that follows includes 
site map number; common name in parenthesis; Township, Range, and 
Section(s); and UTM coordinate (X, Y) of the center point:
    McLean 1 (Crystal Lake); T. 150 N., R. 84 W., Sec. 26, 27, 34; 
319688.770, 5294525.701; McLean 2 (Engel Lake); T. 149 N., R. 84 W., 
Sec. 12, 13; 322716.750, 5288701.540; McLean 3 (Lake Nettie); T. 148 
N., R. 81 W., Sec. 20, 21, 28, 29; 348624.522, 5275584.490; McLean 4 
(Cherry Lake); T. 147 N., R. 81 W., Sec. 23-26, 36; 353837.658, 
5265184.800; McLean 5 (Lake Williams); T. 147 N., R. 79 W., Sec. 19-21, 
28-30, 32, 33, T. 147 N., R. 80 W., Sec. 22-27, 34, 36; 364083.475, 
5265192.285; McLean 6 (Blue Lake); T. 147 N., R. 79 W., Sec. 16, 17, 
20, 21; 367727.830, 5266869.230; McLean 7 (Tractor Lake); T. 146 N., R. 
80 W., Sec. 1, 2, 35, 36; 362857.085, 5262620.315; McLean 8 (Koeing 
WDA); T. 145 N., R. 80 W., Sec. 1, 12; 363258.729, 5250887.545.

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[[Page 57700]]


    Unit ND-5: McHenry 1-4, Sheridan 1-6.
    This unit consists of 10 alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in McHenry and Sheridan Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X, Y) of the center point:
    McHenry 1 (Lake Lemer); T. 153 N., R. 75 W., Sec. 7, 8, 17, 18, 20; 
400056.197, 5325316.812; McHenry 2 (Bromley Lake); T. 153 N., R. 75 W., 
Sec. 20, 21, 28; 402047.786, 5323231.640; McHenry 3 (Crooked Lake); T. 
153 N., R. 75 W., Sec. 31, T. 153 N., R. 76 W., Sec. 36; 398136.708, 
5320218.780; McHenry 4 (Spiche WPA); T. 151 N., R. 78 W., Sec. 13, 14, 
23, 24; 380388.750, 5304863.342; Sheridan 1 (Kandt Lake); T. 150 N., R. 
76 W., Sec. 7, 18, T. 150 N., R. 77 W., Sec. 12-14; 390437.732, 
5296427.775; Sheridan 2 (Moesner Lake); T. 150 N., R. 77 W., Sec. 17-
21, 28; 384577.857, 5294515.153; Sheridan 3 (Krueger Lake); T. 149 N., 
R. 77 W., Sec. 2, 3, 11, T. 150 N., R. 77 W., Sec. 26, 27, 34, 35; 
387560.771, 5291126.275; Sheridan 4 (New Lake); T. 149 N., R. 76 W., 
Sec. 1; 399759.605, 5289417.669; Sheridan 5 (Plover Pond); T. 149 N., 
R. 75 W., Sec. 7; 401849.925, 5287906.865; Sheridan 6 (Gadwall Lake); 
T. 149 N., R. 75 W., Sec. 7; 401439.445, 5287735.436.

[[Page 57701]]

[GRAPHIC] [TIFF OMITTED] TR11SE02.010


[[Page 57702]]


    Unit ND-6: Benson 1-7, Pierce 1-4.
    This unit consists of 11 alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Benson and Pierce Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X, Y) of the center point:
    Benson 1 (Horseshoe Lake); T. 156 N., R. 71 W., Sec. 16, 17, 20, 
21; 440518.660, 5353030.147; Benson 2 (Shively WPA); T. 156 N., R. 71 
W., Sec. 20, 29; 439353.229, 5350282.062; Benson 3 (Pfeifer Lake); T. 
155 N., R. 71 W., Sec. 5, T. 156 N., R. 71 W., Sec. 32; 439370.542, 
5348281.846; Benson 4 (Long Lake WPA) T. 155 N., R. 71 W., Sec. 4, 9, 
10, 15, 16; 441621.551, 5345274.731; Benson 5 (Volk WPA West); T. 155 
N., R. 70 W., Sec. 17, 18; 448265.688, 5344009.988; Benson 6 (Simon 
WPA); T. 154 N., R. 71 W., Sec. 9, 10, 15, 16; 442022.195, 5335513.405; 
Benson 7 (Cranberry Lake); T. 154 N., R. 71 W., Sec. 14, 15, 21-23, 26-
28, 34; 442842.177, 5331453.343; Pierce 1 (Sandhill Crane WPA); T. 153 
N., R. 72 W., Sec. 3, 4, T. 154 N., R. 72 W., Sec. 33, 34; 431750.466, 
5328861.394; Pierce 2 (Petrified Lake); T. 153 N., R. 72 W., Sec. 7, 8; 
428853.027, 5326213.903; Pierce 3 (Orrin Lake); T. 152 N., R. 74 W., 
Sec. 5-9; 413060.595, 5317206.795; Pierce 4 (Little Antelope Lake); T. 
151 N., R. 73 W., Sec. 5, 6, T. 152 N., R. 73 W., Sec. 31-33; 
421895.100, 5309374.573.

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[GRAPHIC] [TIFF OMITTED] TR11SE02.011


[[Page 57704]]


    Unit ND-7: Burleigh 1-4, Kidder 1-5.
    This unit consists of nine alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Burleigh and Kidder Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X, Y) of the center point:
    Burleigh 1 (Rath WPA); T. 143 N., R. 75 W., Sec. 16, 21, 22, 27-29, 
33; 410335.925, 522591.163; Burleigh 2 (Rachel Hoff); T. 142 N., R. 75 
W., Sec. 3, 4, T. 143 N., R. 75 W., Sec. 33, 34; 411135.195, 
5222640.220; Burleigh 3 (Lake Arena); T. 142 N., R. 75 W., Sec. 11-15, 
22-24, 26, 27; 413457.835, 5218315.984; Burleigh 4 (Long Lake NWR); T. 
137 N., R. 75 W., Sec. 1-12, 17-20, 30, 31, T. 138 N., R. 75 W., Sec. 
25-27, 33-36, T. 137 N., R. 76 W., Sec. 9, 10, 13, 15-17, 21-27, 35, 
36; 409304.489, 5171717.886; Kidder 1 (Horsehead Lake); T. 141 N., R. 
72 W., Sec. 2-4, 9-11, 14-16, 21-24, 26-28, T. 142 N., R. 72 W., Sec. 
33, 34; 440436.505, 5209889.760; Kidder 2 (Spring Lake); T. 140 N., R. 
71 W., Sec. 5-7, T. 141 N., R. 71 W., Sec. 33; 448424.870, 5202157.335; 
Kidder 3 (Sibley Lake); T. 140 N., R. 72 W., Sec. 1, 2, 10-12, 14, 15; 
444092.995, 5200289.957; Kidder 4 (Big Muddy Lake); T. 140 N., R. 72 
W., Sec. 22-24, 26, 27; 443892.205, 5196747.645; Kidder 5 (Long Lake 
NWR); T. 137 N., R. 74 W., Sec. 4-6, T. 138 N., R. 73 W., Sec. 16-20, 
T. 138 N., R. 74 W., Sec. 13-15,21-35; 423970.257, 5176976.647.

[[Page 57705]]

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[[Page 57706]]


    Unit ND-8: Stutsman 1-3.
    This unit consists of three alkali lakes and wetlands (as defined 
in item 2 i-iv above) located in Stutsman County in the following 
Township, Range, and Section(s). The description that follows includes 
site map number; common name in parenthesis; Township, Range, and 
Section(s); and UTM coordinate (X, Y) of the center point:
    Stutsman 1 (Jim Lake); T. 143 N., R. 64 W., Sec. 18-20, 28-30, 33, 
34, T. 143 N., R. 65 W., Sec. 24; 513814.853, 5224895.395; Stutsman 2 
(Chase Lake); T. 141 N., R. 69 W., Sec. 16, 17, 19-21, 28-30, 32, 33; 
466386.425, 5205713.905; Stutsman 3 (Stink Lake 01); T. 139 N., R. 69 
W., Sec. 5-8; 467714.455, 5191874.900.

[[Page 57707]]

[GRAPHIC] [TIFF OMITTED] TR11SE02.013


[[Page 57708]]


    Unit ND-9: Logan 1-4, McIntosh 1-2.
    This unit consists of six alkali lakes and wetlands (as defined in 
item 2 i-iv above) located in Logan and McIntosh Counties in the 
following Township, Range, and Section(s). The description that follows 
includes site map number; common name in parenthesis; Township, Range, 
and Section(s); and UTM coordinate (X, Y) of the center point:
    Logan 1 (Eberie Lake); T. 135 N., R. 69 W., Sec. 28, 29, 32, 33; 
471236.510, 5146008.575; Logan 2 (Schweigert WPA); T. 134 N., R. 69 W., 
Sec. 2, 3, 10, 11, 14, 15; 474875.710, 5141918.770; Logan 3 (Baltzer 
WPA); T. 134 N., R. 70 W., Sec. 23, 26, 27; 465722.478, 5137658.555; 
Logan 4 (Logan County WMA); T. 134 N., R. 70 W., Sec. 34, 35; 
465577.090, 5135812.195; McIntosh 1 (Turkey Island WPA); T. 130 N., R. 
69 W., Sec. 2, 3, T. 131 N., R. 69 W., Sec. 34, 35; 476990.724, 
5106836.450; McIntosh 2 (McIntosh 02); T. 130 N., R. 68 W., Sec. 13, 
14, 23, 24; 488392.570, 5101297.805.

[[Page 57709]]

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[[Page 57710]]


    Unit ND-10: Eddy 1.
    This unit consists of one alkali lake and wetland (as defined in 
item 2 i-iv above) located in Eddy County in the following Township, 
Range, and Section(s). The description that follows includes site map 
number; common name in parenthesis; Township, Range, and Section(s); 
and UTM coordinate (X, Y) of the center point:
    Eddy 1 (Lake Coe); T. 149 N., R. 63 W., Sec. 21, 22, 26-28; 
522343.035, 5282341.250.

[[Page 57711]]

[GRAPHIC] [TIFF OMITTED] TR11SE02.015


[[Page 57712]]


    Unit ND-11: Missouri River.
    Approximately 354.6 mi (570.6 km) from the Montana/North Dakota 
border just west of Williston, McKenzie County, North Dakota, at RM 
1586.6 downstream to the North Dakota/South Dakota border in Sioux and 
Emmons Counties, North Dakota, and Corson and Campbell Counties, South 
Dakota, at RM 1232.0. Lake Sakakawea, Lake Audubon, and Lake Oahe are 
included in this unit, along with a free-flowing stretch of the 
Missouri River from RM 1389 to 1302 (Garrison Reach). This unit 
consists of the following TRS:
    T. 129 N., R. 78 W., Sec. 19, 29-32 ; T. 129 N., R. 79 W., Sec. 3-
6, 8-11, 13-16, 21-27, 35-36, T. 129 N., R. 80 W., Sec. 1, T. 130 N., 
R. 79 W., Sec. 3-9, 17-21, 27-34, T. 130 N., R. 80 W., Sec. 1-3, 10-14, 
23-26, 36; T. 131 N., R. 79 W., Sec. 4-9,17-20, 29-32, T. 131 N., R. 80 
W., Sec. 1, 11-15, 22-26, 35-36; T. 132 N., R. 78 W., Sec. 15-22; T. 
132 N., R. 79 W., Sec. 3-5, 8-10, 13-16, 21-24, 26-29, 32-36. T. 133 
N., R. 78 W., Sec. 5-8, 18-19, 30; T. 133 N., R. 79 W., Sec. 1-2, 11-
13, 23-28, 34-36; T. 134 N., R. 78 W., Sec. 31; T. 134 N., R. 79 W., 
Sec. 2-3, 10-16, 22-26, 35-36, T. 135 N., R. 78 W., Sec. 6-7, T. 135 
N., R. 79 W., Sec. 1-2, 11-15, 22-24, Sec. 26-27, 34-35; T. 136 N., R. 
78 W., Sec. 18-19, 30-31; T. 136 N., R. 79 W., Sec. 1-3, 5-6, 8-16, 22-
27, 35-36, T. 137 N., R. 79 W., Sec. 8, 14-23, 26-36, T. 137 N., R. 80 
W., Sec. 3-5, T. 8-11, 13-17, 22-26, 36, T. 138 N., R. 80 W., Sec. 5-7, 
18-19, 28-34, T. 138 N., R. 81 W., Sec. 13, 24-25; T. 139 N., R. 80 W., 
Sec. 30-31, T. 139 N., R. 81 W., Sec. 3-4, Sec. 10-11, 14, 23-26; T. 
140 N., R. 81 W., Sec. 5, 8-9, 16, 21, 27-28, 33, T. 141 N., R. 80 W., 
Sec. 7, 18; T. 141 N., R. 81 W., Sec. 1-3, 11-13, 24-27, 33-35, T. 142 
N., R. 81 W., Sec. 4-5, 9-10, 15-16, 21-22, 27-28, 34-35, T. 143 N., R. 
81 W., Sec. 5-8, 18-19, 29-33, T. 144 N., R. 81 W., Sec. 30-32, T. 144 
N., R. 82 W., Sec. 14-18, 23-25, T. 144 N., R. 83 W., Sec. 13-14, 21-
24, 27-34, T. 144 N., R. 84 W., Sec. 5-9, 14-17, 22-25, T. 145 N., R. 
84 W., Sec. 5, 8-9, 15-16, 21, 22, 27,. 34-35; T. 146 N., R. 84 W., 
Sec. 4-7, 18-20, 29-30, Sec. 32; T. 146 N., R. 85 W., Sec. 12-13, 24; 
T. 146 N., R. 86 W., Sec. 3, T. 146 N., R. 86 W., Sec. 6-7, T. 146 N., 
R. 87 W., Sec. 1-10, 18, T. 146 N., R. 88 W., Sec. 1-14, 16-18, 20-21, 
24; T. 146 N., R. 89 W., Sec. 1-2, 10-12, T. 147 N., R. 82 W., Sec. 2-
6, 8-11, 15-18, T. 147 N., R. 83 W., Sec. 1-9, Sec. 16-20, T. 147, N., 
R. 84 W., Sec. 1-24, T. 147 N., R. 85 W., Sec. 1-27, 28-35, 29-31, 34-
36, T. 147 N., R. 86 W., Sec. 1-3, 7, 9-36; T. 147 N., R. 87 W., Sec. 
7-36, T. 147 N., R. 88 W., Sec. 6-11, 13-36; T. 147 N., R. 89 W., Sec. 
1-29, 34-36; T. 147 N., R. 90 W., Sec. 1-18, 20, 23-27; T. 147 N., R. 
91W., Sec. 1-7, 11-12; T. 147 N., R. 92 W., Sec. 1-9, 12-13, 16-20, 29-
30, 32; T. 147 N., R. 93 W., Sec. 1-2, 12-13, T. 148 N., R. 82 W., Sec. 
7-8, 17-20, 28-34; T. 148 N., R. 83 W., Sec. 11-15, 19-36, T. 148 N., 
R. 84 W., Sec. 18-19, 22-27, 29-36; T. 148 N., R. 85 W., Sec. 19-20, 
24-25, 27, T 29-36; T. 148 N., R. 86 W., Sec. 23-28, 33-36; T. 148 N., 
R. 89 W., Sec. 30-32, T. 148 N., R. 90 W., Sec. 6, 19-21, 25-36; T. 148 
N., R. 91 W., Sec. 1-12, 14-17, 19-36, T. 148 N., R. 92 W., Sec. 13, 
20-22, 24-36; T. 148 N., R. 93 W., Sec. 24-25, 35-36, T. 149 N., R. 89 
W., Sec. 7, 18; T. 149 N., R. 90 W., Sec. 3-24, 27-33; T. 149 N., R. 91 
W., Sec. 1-4, 6, 9-15, 23-26, 34-36; T. 149 N., R. 92 W., Sec. 1-6, 10-
12, 14-16; T. 149 N., R. 93 W., Sec. 1-2, T. 150 N., R. 90 W., Sec. 18-
19, 29-31; T. 150 N., R. 91 W., Sec. 1-36, T. 150 N., R. 92 W., Sec. 
13-14, 19-20, 23-36; T. 150 N., R. 93 W., Sec. 6-9, 13-36, T. 150 N., 
R. 94 W., Sec. 1-2, 12-15, 22, 24; T. 151 N., R. 91 W., Sec. 1-11, 14-
23, 26-35, T. 151 N., R. 92 W., Sec. 1-3, 10-14, 23-26, 36; T. 151 N., 
R. 93 W., Sec. 5-8, 16-21, 30-31, T. 151 N., R. 94 W., Sec. 1-3, 10-15, 
24-26, 35-36; T. 152 N., R. 91W., Sec. 19, 22-28, 30-35, T. 152 N., R. 
92 W., Sec. 18-19, 21-28, 34-36; T. 152 N., R. 93 W., Sec. 1-16, 20-23, 
27-34, T. 152 N., R. 94 W., Sec. 1, 36, T. 152 N., R. 99 W., Sec. 2-6, 
T. 152 N., R. 100 W., Sec. 1-12, T. 152 N., R. 100 W., Sec. 14-18, T. 
152 N., R. 100 W., Sec. 20, 22; T. 152 N., R. 101 W., Sec. 1-2, 12-13; 
T. 152 N., R. 102 W., Sec. 6-7, T. 152 N., R. 103 W., Sec. 3-4, 9-16, 
20-23, 28-30, T. 152 N., R. 104 W., Sec. 7-8, 13-15, 17-18, 20-25, 28-
29; Sec. 32-33, T. 153 N., R. 92 W., Sec. 31-33, T. 153 N., R. 93 W., 
Sec. 5-9, 15-23, 26-30, 32-36; T. 153 N., R. 94 W., Sec. 1-14, 16, 24; 
T. 153 N., R. 95 W., Sec. 5-6, T. 153 N., R. 96 W., Sec. 1, 4-5; T. 153 
N., R. 97 W., Sec. 1-2, 4-7, 11; T. 153 N., R. 98 W., Sec. 1-3, 11-15, 
19-35, T. 153 N., R. 99 W., Sec. 22-29, 31-36, T. 153 N., R. 100 W., 
Sec. 4-9, 16-21, 27-30, 32-35; T. 153 N., R. 101 W., Sec. 1-11, 15-20, 
30; T. 153 N., R. 102 W., Sec. 1, 12-13, 21-28, 33-36; T. 154 N., R. 93 
W., Sec. 31, T. 154 N., R. 94 W., Sec. 15, 19-23, 25-36; T. 154 N., R. 
95 W., Sec. 11, 13-14, 17-36, T. 154 N., R. 96 W., Sec. 2-3, 10-11, 13-
16, 18-36; T. 154 N., R. 97 W., Sec. 13-16, 19-36; T. 154 N., R. 98 W., 
Sec. 25, 35-36; T. 154 N., R. 100 W., Sec. 19, 29-33, T. 154 N., R. 101 
W., Sec. 22-29, 31-36.

[[Page 57713]]

[GRAPHIC] [TIFF OMITTED] TR11SE02.016


[[Page 57714]]



South Dakota

    Projection: UTM Zone 14, NAD 27, Clarke 1866, Meters.
    Unit SD-1: Missouri River.
    Approximately 159.7 mi (257 km) from the North Dakota/South Dakota 
border northeast of McLaughlin, Corson County, South Dakota, at RM 
1232.0 downstream to RM 1072.3, just north of Oahe Dam (Oahe Reservoir) 
including the following TRS:
    T. 6 N., R. 29 E., Sec. 1-6, 8-11, 14-16, 21-23, 25-27, 35-36; T. 6 
N., R. 30 E., Sec. 22-34; T. 6 N., R. 31 E., Sec. 19; T. 7 N., R. 28 
E., Sec. 1,T. 7 N., R. 28 E., Sec. 12-13, 36; T. 7 N., R. 29 E., Sec. 
5-9, 15-17, 20-28, 31-32, 34-36,\3\; T. 7 N., R. 30 E., Sec. 19-20, 29-
32; T. 8 N., R. 23 E., Sec. 1; T. 8 N., R. 24 E., Sec. 4-6; T. 8 N., R. 
26 E., Sec. 4; T. 8 N., R. 28 E., Sec. 1, 11-14, 23-25; T. 8 N., R. 29 
E., Sec. 4-9, 16-20, 29-31; T. 9 N., R. 23 E., Sec. 36; T. 9 N., R. 24 
E., Sec. 12-15, 22-28, 31-34, T. 9 N., R. 25 E., Sec. 1-2, 7-18, 20-25, 
27; T. 9 N., R. 26 E., Sec. 1-9, 10-23, 26, 28-30, 32-33; T. 9 N., R. 
27 E., Sec. 1-12; T. 9 N., R. 28 E., Sec. 3-9, 13-20, 22-26, 35-36; T. 
9 N., R. 29 E., Sec. 1-4, 18-20, 29-32; T. 9 N., R. 30 E., Sec. 6; T. 
10 N., R. 26 E., Sec. 10, 13, 15-16, 19-20, 22-29, 32-36; T. 10 N., R. 
27 E., Sec. 9, 15-16, 21-36; T. 10 N., R. 28 E., Sec. 1-6, 8-17, 19-21, 
24, 29-33; T. 10 N., R. 29 E., Sec. 1, 4-9, T. 10 N., R. 29 E., Sec. 
12-13, 16-22, 24-25, 27-30, 32-36; T. 10 N., R. 30 E., Sec. 1-12, 14-
19, 20, 29, 30-31, T. 10 N., R. 31 E., Sec. 6; T. 11 N., R. 27 E., Sec. 
36; T. 11 N., R. 28 E., Sec. 25, 27-36; T. 11 N., R. 29 E., Sec. 24-26, 
31, 36; T. 11 N., R. 30 E., Sec. 1-2, 11-14, 23-26, 31-33, 35-36; T. 11 
N., R. 31 E., Sec. 30-31; T. 12 N., R. 30 E., Sec. 1-4, 10-14, 22-28, 
34-36; T. 12 N., R. 31 E., Sec. 1-7, 10-12, T. 13 N., R. 30 E., Sec. 1, 
31-34; T. 13 N., R. 30 E., Sec. 36; T. 13 N., R. 31 E., Sec. 3-10, 16-
17, 20-21, 27-28, 30-35; T. 14 N., R. 30 E., Sec. 36; T. 14 N., R. 31 
E., Sec. 1-5, 9-11, 14-15, 22-23, 26-28, 31-35; T. 15 N., R. 30 E., 
Sec. 1; T. 15 N., R. 31 E., Sec. 4-6, 10-11,13-15, 23-27, 32-33, 35-36; 
T. 16 N., R. 28 E., Sec. 13-14, 21-24, 26-28; T. 16 N., R. 29 E., Sec. 
1-3, 7-22, 24, 29-30; T. 16 N., R. 30 E., Sec. 1-13, 16-18, 36; T. 16 
N., R. 31 E., Sec. 1-2, 6-8, 10-11, 14-19, 20-22, 27-34; T. 17 N., R. 
29 E., Sec. 36; T. 17 N., R. 30 E., Sec. 1, 28, 31, 33-34; T. 17 N., R. 
31 E., Sec. 6-8, 16-18, 20-21, 27-28, 33-34; T. 18 N., R. 29 E., Sec. 
1-2, 12-13; T. 18 N., R. 30 E., Sec. 18-27, 35-36; T. 18 N., R. 31 E., 
Sec. 31; T. 19 N., R. 28 E., Sec. 2-6; T. 19 N., R. 29 E., Sec. 1-18, 
20-26, 34-36, T. 19 N., R. 30 E., Sec. 4, 7-9, 16-21, 28-32; T. 20 N., 
R. 27 E., Sec. 25, 36; T. 20 N., R. 28 E., Sec. 24-27, 30-36; T. 20 N., 
R. 29 E., Sec. 19, 29-32, 34; T. 20 N., R. 30 E., Sec. 22, 24-27,. 32-
34, 36; T. 20 N., R. 31 E., Sec. 4-6, 8-9, 16, T. 20 N., R. 31 E., Sec. 
19-21, 28-32; T. 21 N., R. 30 E., Sec. 2-4,10-11, 14, 23-26, 36; T. 21 
N., R. 31 E., Sec. 31; T. 22 N., R. 29 E., Sec. 1-2, 11-12; T. 22 N., 
R. 30 E., Sec. 5-8, 14-17, 21-23, 27-28, 33-34,\4\; T. 23 N., R. 29 E., 
Sec. 20-22, 27-28, 33-36; \5\; T. 23 N., R. 30 E., Sec. 29-32; T. 107 
N., R. 71 W., Sec. 30-32; T. 111 N., R. 80 W., Sec. 1-3, 6; T. 111 N., 
R. 81 W., Sec. 1-4; T. 112 N., R. 79 W., Sec. 31; T. 112 N., R. 80 W., 
Sec. 4-9, 17-18, 23, 25-36; T. 112 N., R. 81 W., Sec. 1, 12-15, 22-28, 
33-36; T. 113 N., R. 80 W., Sec. 3-4, 9-10, T. 113 N., R. 80 W., Sec. 
4, 9, 16-21, 28-34; T. 113 N., R. 81 W., Sec. 5-8, 13, 15-17, 20-29, 
34-36; T. 114 N., R. 80 W., Sec. 33-34; T. 114 N., R. 81 W., Sec. 4-5, 
9-10,16-17, 20-21, 27-29, 31-33; T. 115 N., R. 80 W., Sec. 2-5, 7-10, 
16-20; T. 115 N., R. 81 W., Sec. 6-7, 16-21, 25-30, 32-33, 35-36; T. 
115 N., R. 82 W., Sec. 1-4, 9-16, 22-25; T. 116 N., R. 79 W., Sec. 4-9, 
17-20, T. 116 N., R. 80 W., Sec. 24-27, 33-35; T. 116 N., R. 82 W., 
Sec. 33-36; T. 117 N., R. 79 W., Sec. 5-8, 17-18, 20, 29, 32-33,\6\; T. 
118 N., R. 78 W., Sec. 3-10, 16-18, 20-21, 29-30; T. 118 N., R. 79 W., 
Sec. 1, 12, 20-32; T. 119 N., R. 79 W., Sec. 3-5; T. 119 N., R. 78 W., 
Sec. 7-9, 17-20, 30-31; T. 119 N., R. 79 W., Sec. 24-25, 36; T. 120 N., 
R. 78 W., Sec. 2-4, 9-11, 15-17, 20-22, 27-29, 32-34, \7\; T. 121 N., 
R. 78 W., Sec. 3-11, 15-18, 20-22, 26-28, 34-35; T. 122 N., R. 78 W., 
Sec. 3-5, 9, 15-16, 21-22, 27-28, 32-34; T. 123 N., R. 78 W., Sec. 6-8, 
18-20, 29-33; T. 123 N., R. 79 W., Sec. 1-3, 11-13, 24-25; T. 124 N., 
R. 78 W., Sec. 31; T. 124 N., R. 79 W., Sec. 5-7, 18, 29-34; T. 124 N., 
R. 80 W., Sec. 12-14, 23-26, 35-36; T. 125 N., R. 78 W., Sec. 4-5, 7-8; 
T. 125 N., R. 79 W., Sec. 9-17, 20-22, 27-29, 32-33,\7\; T. 126 N., R. 
78 W., Sec. 5-8, 17-18, 20-21, 27-29, 32-33; T. 126 N., R. 79 W., Sec. 
1, 12; T. 127 N., R. 78 W., Sec. 31; T. 127 N., R. 79 W., Sec. 1-2, 11, 
14, 23-26, 36; T. 128 N., R. 78 W., Sec. 16-19, 29-31; T. 128 N., R. 79 
W., Sec. 5-9, 13, 16-17, 20-22, 24-29, 35-36; T. 128 N., R. 80 W., Sec. 
1-3, 10-12.
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    \3\ Undefined--These are ``lands'' which were not surveyed 
during the original Government Land Office survey of South Dakota. 
They are now inundated and appear to fall in what was the described 
river channel at that time.
    \4\ See footnote 3.
    \5\ See footnote 3.
    \6\ See footnotes 1 and 3.
    \7\ See footnote 3.

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[[Page 57715]]

[GRAPHIC] [TIFF OMITTED] TR11SE02.017


[[Page 57716]]


    Unit SD-2: Missouri River.
    Approximately 127.8 mi (204.4 km) from RM 880.0, at Fort Randall 
Dam in Bon Homme (right bank) and Charles Mix Counties (left bank), 
South Dakota, downstream to RM 752.2 near Ponca in Dixon County, 
Nebraska (right bank), and Union County, South Dakota (left bank). One 
mainstem Missouri River reservoir, Lewis and Clark Lake, and two 
riverine reaches (Fort Randall and Gavins Point) are included in this 
unit. This unit consists of the following TRS:
    T. 90 N., R. 49 W., Sec. 6, T. 90 N., R. 50 W., Sec. 1, T. 90 N., 
R. 50 W., Sec. 11-14, T. 90 N., R. 50 W., Sec. 23-25, T. 91 N., R. 49 
W., Sec. 31, T. 91 N., R. 50 W., Sec. 7, T. 91 N., R. 50 W., Sec. 18-
19, T. 91 N., R. 50 W., Sec. 25-26, T. 91 N., R. 50 W., Sec. 28-30, T. 
91 N., R. 50 W., Sec. 35-36, T. 91 N., R. 50 W., Sec.\8\, T. 91 N., R. 
51 W., Sec. 3-6, T. 91 N., R. 51 W., Sec. 10-13, T. 91 N., R. 52 W., 
Sec. 1-3, T. 91 N., R. 52 W., Sec. 10-12, T. 92 N., R. 51 W., Sec. 31-
32, T. 92 N., R. 52 W., Sec. 19-21, T. 92 N., R. 52 W., Sec. 26-30, T. 
92 N., R. 52 W., Sec. 34-36, T. 92 N., R. 53 W., Sec. 7-8, T. 92 N., R. 
53 W., Sec. 17-18, T. 92 N., R. 53 W., Sec. 20-24, T. 92 N., R. 54 W., 
Sec. 3, T. 92 N., R. 54 W., Sec. 10-12, T. 92 N., R. 60 W., Sec. 1-2, 
T. 92 N., R. 60 W., Sec. 10-11, T. 92 N., R. 60 W., Sec. 15-17, T. 92 
N., R. 60 W., Sec. 19-21, T. 92 N., R. 61 W., Sec. 6-8, T. 92 N., R. 61 
W., Sec. 15-17, T. 92 N., R. 61 W., Sec. 21-24, T. 92 N., R. 62 W., 
Sec. 1-2, T. 93 N., R. 54 W., Sec. 18-21, T. 93 N., R. 54 W., Sec. 27-
28, T. 93 N., R. 54 W.,

Sec. 34, T. 93 N., R. 55 W., Sec. 13-14, T. 93 N., R. 55 W., Sec. 17-
19, T. 93 N., R. 55 W., Sec. 23-24, T. 93 N., R. 56 W., Sec. 13-14, T. 
93 N., R. 56 W., Sec. 17-21, T. 93 N., R. 56 W., Sec. 23-24, T. 93 N., 
R. 56 W., Sec. 26-28, T. 93 N., R. 57 W., Sec. 16-24, T. 93 N., R. 57 
W., Sec. 28-29, T. 93 N., R. 58 W., Sec. 17-28, T. 93 N., R. 58 W., 
Sec. 30, T. 93 N., R. 58 W., Sec. 34-35, T. 93 N., R. 59 W., Sec. 10-
11, T. 93 N., R. 59 W., Sec. 13-19, T. 93 N., R. 59 W., Sec. 21-27, T. 
93 N., R. 60 W., Sec. 24-26, T. 93 N., R. 60 W., Sec. 35-36, T. 93 N., 
R. 62 W., Sec. 19-20, T. 93 N., R. 62 W., Sec. 26-30, T. 93 N., R. 62 
W., Sec. 35-36, T. 93 N., R. 63 W., Sec. 6-10, T. 93 N., R. 63 W., Sec. 
15, T. 93 N., R. 64 W., Sec. 1, T. 94 N., R. 64 W., Sec. 19-20, T. 94 
N., R. 64 W., Sec. 27-30, T. 94 N., R. 64 W., Sec. 34-36, T. 94 N., R. 
65 W., Sec. 2, T. 94 N., R. 65 W., Sec. 11-13, T. 94 N., R. 65 W., Sec. 
24, T. 95 N., R. 65 W., Sec. 15-17, T. 95 N., R. 65 W., Sec. 8-9, T. 95 
N., R. 65 W., Sec. 21-23, T. 95 N., R. 65 W., Sec. 26-27, T. 95 N., R. 
65 W., Sec. 34-35.
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    \8\ Undefined--These are ``lands'' which were not surveyed 
during the original Government Land Office survey of South Dakota. 
They are now inundated and appear to fall in what was the described 
river channel at that time.

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    Note: Map follows:


[[Page 57717]]


[GRAPHIC] [TIFF OMITTED] TR11SE02.018


    Dated: August 19, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-21625 Filed 9-10-02; 8:45 am]
BILLING CODE 4310-55-C