[Federal Register Volume 71, Number 112 (Monday, June 12, 2006)]
[Proposed Rules]
[Pages 33703-33721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5192]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU48


Endangered and Threatened Wildlife and Plants; Amended 
Designation of Critical Habitat for the Wintering Population of the 
Piping Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend critical habitat for the wintering population of the piping 
plover (Charadrius melodus) in North Carolina under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 1,827 
acres (ac) (739 hectares (ha)) fall within the boundaries of the 
proposed amended critical habitat designation, located in Dare and Hyde 
counties, North Carolina.

DATES: We will accept comments from all interested parties until August 
11, 2006. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by July 27, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of the following methods:
    1. You may submit written comments and information to Pete 
Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh 
Fish and Wildlife Office, P. O. Box 33726, Raleigh, North Carolina 
27636-3726.
    2. You may hand-deliver written comments to our office, at Raleigh 
Field Office, 551-F Pylon Drive, Raleigh, North Carolina 27606.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. Please see the ``Public Comments Solicited'' 
section under SUPPLEMENTARY INFORMATION for file format and other 
information about electronic filing.
    4. You may fax your comments to 919-856-4556.
    5. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Raleigh Fish and Wildlife Office, 551-F Pylon Drive, 
Raleigh, North Carolina 27606 (telephone 919-856-4520).

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, 
Raleigh Fish and Wildlife Office, telephone 919-856-4520, facsimile 
919-856-4556.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. We particularly 
seek comments concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of 
wintering piping plover habitat in North Carolina, and what areas 
should be included in the designation that were occupied at the time of 
listing that contain the features that are essential for the 
conservation of the species and why, and what areas were not occupied 
at the listing is essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (6) Whether our determination that areas identified as not being in 
need of special management is accurate; and
    (7) Information to assist the Secretary of the Interior in 
evaluating habitat with physical and biological features essential to 
the conservation of the piping plover on Cape Hatteras National 
Seashore, administered by the National Park Service, based on any 
benefit provided by the Interim Protected Species Management Strategy/
Environmental Assessment (Interim Strategy) to the conservation of the 
wintering piping plover.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of

[[Page 33704]]

several methods (see ADDRESSES section). Please submit e-mail comments 
to [email protected] in ASCII file format and avoid the use of 
special characters or any form of encryption. Please also include 
``Attn: Wintering Piping Plover Critical Habitat'' in your e-mail 
subject header and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, contact us directly by calling our 
Raleigh Fish and Wildlife Office at phone number 919-856-4520. Please 
note that the e-mail address [email protected] will be closed 
out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment, but you should be aware that the Service may be required to 
disclose your name and address under the Freedom of Information Act. 
However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the Raleigh 
Fish and Wildlife Office (see ADDRESSES).

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat, but it does not 
require specific actions to restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,312 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,312 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the

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economic effects and the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These costs, 
which are not required for many other conservation actions, directly 
reduce the funds available for direct and tangible conservation 
actions.

Background

    In this proposed rule, it is our intent to discuss only those 
topics directly relevant to the amended designation of critical habitat 
for the wintering population of piping plover in North Carolina. For 
more information on piping plover wintering critical habitat, refer to 
the final rule designating critical habitat for the wintering 
population of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038).
    The piping plover is a small, pale-colored shorebird that breeds in 
three separate areas of North America--the Northern Great Plains, the 
Great Lakes, and the Atlantic Coast. The piping plover winters in 
coastal areas of the United States from North Carolina to Texas, along 
the coast of eastern Mexico, and on Caribbean islands from Barbados to 
Cuba and the Bahamas (Haig and Elliott-Smith 2004). Information from 
observation of color-banded piping plovers indicates that the winter 
ranges of the breeding populations overlap to a significant degree. 
Therefore, the source breeding population of a given wintering 
individual cannot be determined in the field unless it has been banded 
or otherwise marked.
    Piping plovers begin arriving on the wintering grounds in July, 
with some late-nesting birds arriving in September. A few individuals 
can be found on the wintering grounds throughout the year, but 
sightings are rare in late May, June, and early July. Migration is 
poorly understood, but a recent study suggests that plovers use inland 
and coastal stopover sites when migrating from interior breeding areas 
to wintering grounds (V.D. Pompei and F. J. Cuthbert, unpublished 
data). Concentrations of spring and fall migrants also have been 
observed along the Atlantic Coast (USFWS 1996). In late February, 
piping plovers begin leaving the wintering grounds to migrate back to 
breeding sites. Northward migration peaks in late March, and by late 
May most birds have left the wintering grounds (Haig and Elliott-Smith 
2004). North Carolina is uniquely positioned in the species' range, 
being the only State where the piping plover's breeding and wintering 
ranges overlap and the birds are present year-round. A complete 
description of the biology and ecology of the piping plover can be 
found in Haig and Elliott-Smith (2004).

Previous Federal Actions

    The piping plover was listed as endangered in the Great Lakes 
watershed and threatened elsewhere within its range on December 11, 
1985 (50 FR 50726). All piping plovers on migratory routes outside of 
the Great Lakes watershed or on their wintering grounds (which include 
the State of North Carolina) are listed as threatened under the Act.
    On July 10, 2001, we designated 137 areas along the coasts of North 
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, 
Louisiana, and Texas as critical habitat for the wintering population 
of the piping plover (66 FR 36038). This designation included 
approximately 1,798.3 miles (mi) (2,891.7 kilometers (km)) of mapped 
shoreline and approximately 165,211 ac (66,881 ha) of mapped areas 
along the Gulf and Atlantic coasts and along margins of interior bays, 
inlets, and lagoons.
    In February 2003, two North Carolina counties (Dare and Hyde) and a 
beach access group (Cape Hatteras Access Preservation Alliance) filed a 
lawsuit challenging our designation of four units of critical habitat 
on the Cape Hatteras National Seashore, North Carolina (Units NC-1, NC-
2, NC-4, and NC-5). In its November 1, 2004 opinion, the court vacated 
and remanded the designation for these units to us for reconsideration 
(Cape Hatteras Access Preservation Alliance v. U.S. Department of 
Interior (344 F. Supp. 2d 108 (D.D.C. 2004)). The court indicated that 
the descriptions of critical habitat for the four units did not 
sufficiently exclude certain hard structures and other areas that did 
not contain primary constituent elements (PCEs) and ordered us to 
demonstrate that PCEs are found on areas that are designated. Also, 
although the court did not invalidate the PCEs themselves, it ordered 
us to clarify that the PCEs may require special management or 
protection pursuant to the Act. It also found that the designation of 
critical habitat must include compliance with NEPA. Furthermore, the 
court found that our economic analysis of the critical habitat 
designation was arbitrary and capricious in that it considered the 
impact of off-road vehicles and other human use of beaches but did not 
address information in the record about the possibility of closures of 
the beaches to such use or how off-road vehicle use might be affected 
by the designation. Finally, the court also found that we may have 
omitted from the economic analysis the costs of consulting on National 
Park Service actions, and ordered us to reconsider them. This proposed 
rule will address only those four court-vacated and -remanded units 
(Units NC-1, NC-2, NC-4, and NC-5), with the exception of corrections 
to the List of Endangered and Threatened Wildlife found at 50 CFR 
17.11(h) and minor edits to the regulatory language found in 50 CFR 
17.95(b). All other areas remain as designated in the July 10, 2001, 
final critical habitat rule (66 FR 36038).
    For more information on previous Federal actions concerning the 
piping plover, refer to the final listing rule published in the Federal 
Register on December 11, 1985 (50 FR 50726), or the final rule 
designating critical habitat for the wintering population of the piping 
plover published in the Federal Register on July 10, 2001 (66 FR 
36038).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management, such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse

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modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but not known to be 
occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing rule for the species. Additional 
information sources include the recovery plan for the species, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge. All information is used in accordance with the 
provisions of section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b) of the Act, we use the best scientific 
data available in determining areas that contain the physical and 
biological features that are essential to the conservation of the 
wintering population of the piping plover. We reviewed available 
information that pertains to the habitat requirements of this species. 
The material reviewed included data in reports submitted during section 
7 consultations and by biologists holding section 10(a)(1)(A) recovery 
permits, research published in peer-reviewed articles and presented in 
academic theses and agency reports, and recovery plans. To determine 
the most current distribution of piping plover in North Carolina, these 
areas were further evaluated using wintering piping plover occurrence 
data from the North Carolina Wildlife Resources Commission, the North 
Carolina Natural Heritage Program, and three international piping 
plover winter population censuses. We considered these data along with 
other occurrence data (including presence/absence survey data), 
research published in peer-reviewed articles and presented in academic 
theses and agency reports, and information received during the 
development of the July 10, 2001, designation of critical habitat for 
wintering piping plovers (see final rule at 66 FR 36038). To map areas 
containing the physical and biological features determined to be 
essential to the conservation of the species (see Primary Constituent 
Elements for the Wintering Population of the Piping Plover section 
below), we used data on known piping plover wintering locations, 
regional Geographic Information Systems (GIS) coverages, digital aerial 
photographs, and regional shoreline-defining electronic files.
    We have included those areas containing essential features along 
the coast for which occurrence data indicate a consistent use 
(observations over two or more wintering seasons) by piping plovers 
within this designation. We do not propose any areas outside the 
geographical area presently occupied by the species.
    Delineating specific locations for designation as critical habitat 
for the piping plovers is difficult because the coastal areas they use 
are constantly changing due to storm surges, flood events, and other 
natural geophysical alterations of beaches and shoreline. Thus, to best 
ensure that areas containing features considered essential to the 
piping plover are included in this proposed designation, the textual 
unit descriptions of the units in the regulation constitute the 
definitive determination as to whether an area is within the critical 
habitat boundary. Our textual legal descriptions describe the area 
using reference points, including the areas from the landward 
boundaries to the mean of the lower low water (MLLW) (which encompasses 
intertidal areas with the features that are essential foraging areas 
for piping plovers), and describe areas within the unit that are 
utilized by the piping plover and contain the PCEs (e.g., upland areas 
used for roosting and wind tidal flats used for foraging). Our textual

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legal descriptions also exclude features and structures (e.g., 
buildings, roads) that are not or do not contain PCEs.
    In order to capture the dynamic nature of the coastal habitat, and 
the intertidal areas used by the piping plover, we have textually 
described each unit as including the area from the MLLW height of each 
tidal day, as observed over the National Tidal Datum Epoch, landward to 
a point where PCEs no longer occur. The landward edge of the PCEs is 
generally demarcated by stable, densely-vegetated dune habitat which 
nonetheless may shift gradually over time.
    Global Positioning System (GPS) data were gathered using a mobile 
handheld mapping unit with settings to allow for post processing or 
Wide Area Augmentation System (WAAS) enabled correction. A minimum of 
five positions were captured for each point location. Data were 
processed using mapping software and the points were output to a 
shapefile format. The point shapefile was checked for attribute 
accuracy and additional data fields were added to assign feature type. 
GIS point data were used to create lines. The lines were overlaid on 
National Oceanic and Atmospheric Administration digital ortho-
photographs and U.S. Geological Survey digital ortho-photographs. These 
lines were refined to create the landward edge of the critical habitat 
polygons. To complete the polygons, a boundary was drawn in the ocean 
or sound to demarcate the MLLW. The line was drawn using 20-foot Light 
Detection and Ranging (LIDAR) and contours to estimate the location of 
MLLW.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to, space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific primary constituent elements required for the 
wintering population of the piping plover are derived from the 
biological needs of the species, as described in the Background section 
of the final rule designating critical habitat for the wintering 
population of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038).

Primary Constituent Elements for the Wintering Population of the Piping 
Plover

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (i.e., primary constituent elements 
(PCEs)) essential to the conservation of the wintering population of 
the piping plover. All areas proposed as critical habitat for the 
wintering population of the piping plover are occupied, within the 
species' historic geographical range, and contain sufficient PCEs to 
support at least one life history function.
    In Cape Hatteras Access Preservation Alliance v. U.S. Dept of the 
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court upheld the PCEs 
identified in our July 10, 2001, final rule designating critical 
habitat for the wintering population of the piping plover (66 FR 
36038). Thus, based on the best available scientific information, we 
are not changing PCEs previously identified. They constitute the 
features that are essential for the conservation of wintering piping 
plovers. The PCEs are found in geologically dynamic coastal areas that 
support intertidal beaches and flats (between annual low tide and 
annual high tide) and associated dune systems and flats above annual 
high tide.
    Essential components (primary constituent elements) of wintering 
piping plover habitat include sand and/or mud flats with no or very 
sparse emergent vegetation. In some cases, these flats may be covered 
or partially covered by a mat of blue-green algae. Adjacent unvegetated 
or sparsely vegetated sand, mud, or algal flats above high tide are 
also essential, especially for roosting piping plovers. Such sites may 
have debris, detritus (decaying organic matter), or micro-topographic 
relief (less than 50 cm above substrate surface) offering refuge from 
high winds and cold weather. Essential components of the beach/dune 
ecosystem include surf-cast algae for feeding of prey, sparsely 
vegetated backbeach (beach area above mean high tide seaward of the 
dune line, or in cases where no dunes exist, seaward of a delineating 
feature such as a vegetation line, structure, or road) for roosting and 
refuge during storms, spits (a small point of land, especially sand, 
running into water) for feeding and roosting, salterns (bare sand flats 
in the center of mangrove ecosystems that are found above mean high 
water and are only irregularly flushed with sea water) and washover 
areas for feeding and roosting. Washover areas are broad, unvegetated 
zones with little or no topographic relief that are formed and 
maintained by the action of hurricanes, storm surge, or other extreme 
wave action. Several of these components (sparse vegetation, little or 
no topographic relief) are mimicked in artificial habitat types used 
less commonly by piping plovers, but that are considered critical 
habitat (e.g., dredge spoil sites).
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions of piping plover. 
Because not all life history functions require all the PCEs, not all 
proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the wintering population of the piping plover. In some 
cases, the PCEs exist as a result of ongoing Federal actions. As a 
result, ongoing Federal actions at the time of designation will be 
included in the baseline in any consultation conducted subsequent to 
this designation.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat on certain lands in 
North Carolina that we have determined contain habitat with features 
essential to the conservation of the wintering population of the piping 
plover. As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of the wintering 
population of the piping plover, as discussed in the ``Methods'' 
section above.
    The units were delineated by compiling existing relevant spatial 
data of the unit descriptions described in our 2001 final rule 
designating critical habitat for the wintering population of the piping 
plover (66 FR 36038), generating new on-the-ground GPS base-mapping to 
refine the existing descriptions, and mapping the descriptions in such 
a manner that the units contain the PCEs (as described) and do not 
contain any structures or other features that are not identified as 
PCEs. To the maximum extent possible, unit boundaries were drawn to 
exclude manmade structures or their ancillary facilities. To ensure 
that no manmade features are included in critical habitat,

[[Page 33708]]

these features are expressly excluded by text in the Regulations 
Promulgation section of the rule. Critical habitat starts immediately 
at the edge of such features. Using the information compiled above, GIS 
was used to analyze and integrate the relevant data layers for the 
areas of interest in order to determine those areas that include PCEs. 
See ``Methods'' section above for additional discussion of mapping 
techniques.
    We excluded areas from consideration that did not contain one or 
more of the proposed PCEs or where: (1) The area was highly degraded 
and may not be restorable; (2) the area was small, highly fragmented, 
or isolated and may provide little or no long-term conservation value; 
and (3) other areas within the geographic region were determined to be 
sufficient to meet the species needs for conservation. We included 
areas containing one or more PCEs where occurrence data exists and 
where the area: (1) Provided a patchwork of the features essential for 
the conservation of the species; (2) offered dispersal capabilities or 
were in proximity to other wintering piping plover occurrences that 
would allow for survival and recolonization following major natural 
disturbance events (e.g., nor'easters, hurricanes); (3) were of 
sufficient size to maintain the physical and biological features that 
support occurrences; and (4) were representative of the historic 
geographic distribution of occupied areas that will help prevent 
further range collapse of the species. Areas are proposed based on them 
containing sufficient PCEs to support wintering piping plover life 
processes.
    Within the area (NC-1, NC-2, NC-4, NC-5) vacated and remanded to 
the Service for reconsideration in Cape Hatteras Access Preservation 
Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 
2004), we found no unoccupied areas essential to the conservation of 
the species and therefore propose no areas in North Carolina outside 
the geographical area presently occupied by the species. We are 
proposing to designate critical habitat on lands that we have 
determined were occupied at the time of listing and contain sufficient 
PCEs to support life history functions essential for the conservation 
of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and containing the 
primary constituent elements may require special management 
considerations or protections. As we undertake the process of 
designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation under 
section 3(5)(A) of the Act. Secondly, we evaluate lands defined by 
those features to assess whether they may require special management 
considerations or protection. Primary threats to the wintering 
population of piping plover that may require special management or 
protection are disturbance of foraging and roosting plovers (e.g., by 
flushing birds or disrupting normal feeding or roosting times and 
causing excessive alertness or abandonment of the area) by humans 
(e.g., walking on the beach, flying kites, shooting fireworks), 
vehicles (e.g., driving on the beach), and domestic animals (e.g., pets 
being turned loose on the beach); predation (e.g., increased numbers of 
predators that are attracted to the human presence); and disturbance to 
and loss of habitat due to uncontrolled recreational access (e.g., off-
road vehicles, pedestrians, domestic animals) and beach stabilization 
efforts (e.g., beach nourishment, sediment dredging and disposal, inlet 
channelization, construction of jetties and groins and other hard 
structures) that prevent natural coastal processes (i.e., the natural 
transfer and erosion and accretion of sediments along the ocean 
shoreline). To address the threats affecting the wintering population 
of the piping plover within each of the proposed critical habitat 
units, certain special management actions may be needed. For example, 
the high level of off-road vehicle (ORV) and pedestrian use of the 
areas, as discussed in the critical habitat unit descriptions below, 
may require managing access to piping plover foraging habitat and 
adjacent upland roosting habitat during migration and overwintering 
periods. Managing access to these foraging and roosting areas may 
assist in the protection of PCEs and piping plovers by reducing 
disturbance to PCEs potentially caused by ORV use, pedestrians, and 
pets. Managing access might also improve the available habitats for 
conservation of piping plovers.
    In addition, in evaluating areas proposed for the designation of 
critical habitat, we have determined that the following areas which 
contain the PCEs do not require special management or consideration and 
therefore are not proposed for designation. Please see ``Application of 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) of the Act'' for 
additional discussion concerning our determination on these lands.
    (1) The following islands owned by the State of North Carolina 
located within or in proximity to Oregon, Hatteras, and Ocracoke 
inlets, in Dare and Hyde counties: DR-005-05 and DR-005-06 (Oregon 
Inlet, Dare County) and DR-009-03/04 (Hatteras Inlet, Dare and Hyde 
counties). These islands are specifically managed for waterbirds by the 
North Carolina Wildlife Resources Commission. The Commission has 
developed a conservation strategy that identifies the piping plover as 
a priority species needing research, survey, and monitoring efforts to 
assist in restoration and conservation efforts.
    (2) 237 ac (96 ha) of Pea Island National Wildlife Refuge (Dare 
County). The refuge has a statutory mandate to manage the refuge for 
the conservation of listed species, and a draft Comprehensive 
Conservation Plan (USFWS 2006) provides a detailed implementation plan 
which includes preserving, protecting, creating, restoring and managing 
foraging and roosting habitats for the piping plover.

Proposed Amended Critical Habitat Designation

    We are proposing four units of critical habitat in North Carolina 
for the wintering population of the piping plover. The critical habitat 
units described below constitute our best assessment, at this time, of 
the areas determined to be occupied at the time of listing, that 
contain one or more of the primary constituent elements and that may 
require special management or protection. The four areas proposed as 
critical habitat in this amendment are: Unit NC-1 Oregon Inlet, Unit 
NC-2 Cape Hatteras Point, Unit NC-4 Hatteras Inlet, and Unit NC-5 
Ocracoke Island, as described below. These units cover the same general 
areas as those vacated by Cape Hatteras Access Preservation Alliance v. 
U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), although 
they have been refined to exclude areas that do not contain the PCEs or 
require special management or protection and to reflect mapping 
techniques conducted in compliance with the court order. For ease of 
future management, these units are retaining the same naming as used in 
the July 10, 2001, critical habitat designation (66 FR 36038). In 
addition, this rule does not propose to alter or in any way amend the 
remaining 133 units of designated critical habitat that were not 
vacated by Cape Hatteras Access Preservation

[[Page 33709]]

Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 
2004).
    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 1.

 Table 1.--Critical Habitat Units Proposed for the Wintering Population
                 of the Piping Plover in North Carolina.
      [Area estimates reflect all land within critical habitat unit
                              boundaries.]
------------------------------------------------------------------------
     Critical habitat unit          Land ownership       Acres/Hectares
------------------------------------------------------------------------
Unit NC-1 Oregon Inlet........  Federal..............      284.0 (114.9)
Unit NC-2 Cape Hatteras Point.  Federal..............      645.8 (261.4)
Unit NC-4 Hatteras Inlet......  Federal..............      395.6 (160.1)
Unit NC-5 Ocracoke Island.....  Federal..............      501.8 (203.0)
                                                      ------------------
    Total.....................  .....................     1827.2 (739.4)
------------------------------------------------------------------------

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the wintering population of 
the piping plover, below. These units contain the features essential to 
the conservation of the species. Areas within the units contain a 
contiguous mix of intertidal beaches and sand and/or mud flats (between 
annual low tide and annual high tide) with no or very sparse emergent 
vegetation, and adjacent areas of unvegetated or sparsely vegetated 
dune systems and sand and/or mud flats above annual high tide. While no 
one portion of the proposed units contains every PCE, each unit 
contains sufficient PCEs to support life history functions essential 
for the conservation of the species.

Unit NC-1: Oregon Inlet

    Unit NC-1 is approximately 1.7 mi (2.8 km) long, and consists of 
284 ac (114.9 ha) of sandy beach and inlet spit habitat on Bodie Island 
in Dare County, North Carolina. This is the northernmost critical 
habitat unit proposed within the wintering range of the piping plover 
and is entirely within the Cape Hatteras National Seashore. Oregon 
Inlet is the northernmost inlet in coastal North Carolina, 
approximately 12 mi (19.3 km) southeast of the Town of Manteo, the 
county seat of Dare County. The proposed unit at Oregon Inlet is 
bounded by the Atlantic Ocean on the east and Pamlico Sound on the west 
and includes lands from the MLLW on the Atlantic Ocean shoreline to the 
line of stable, densely vegetated dune habitat (which is not used by 
piping plovers and where primary constituent elements do not occur) and 
from the MLLW on the Pamlico Sound side to the line of stable, densely 
vegetated habitat, or (where a line of stable, densely vegetated dune 
habitat does not exist) lands from MLLW on the Atlantic Ocean shoreline 
to the MLLW on the Pamlico Sound side. It begins at the edge of Ramp 4 
near the Oregon Inlet Fishing Center on Bodie Island and extends 
approximately 1.7 mi (2.8 km) south to Oregon Inlet, and includes Green 
Island and any emergent sandbars south and west of Oregon Inlet. This 
unit contains the features essential to the conservation of the species 
(i.e., PCEs), as discussed above.
    As we discuss in ``Application of Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) of the Act'' below, this unit does not include 
Pea Island National Wildlife Refuge or lands owned by the State of 
North Carolina such as islands DR-005-05 and DR-005-06. In addition, 
this unit does not include the Oregon Inlet Fishing Center, NC Highway 
12, and the Bonner Bridge or its associated structures, or any of their 
ancillary facilities (e.g., parking lots, outbuildings). All of these 
features occur outside the boundary of the unit except for a small 
number of supports for Bonner Bridge, which are within the boundary but 
are excluded from critical habitat by text. Critical habitat begins 
immediately at the base of these supports.
    Consistent use by wintering piping plovers has been reported at 
Oregon Inlet dating from the mid-1960s. As many as 100 piping plovers 
were reported from a single day survey during the fall migration (NCWRC 
unpublished data). Christmas bird counts regularly recorded 20 to 30 
plovers using the area. Recent surveys have also recorded consistent 
and repeated use of the area by banded piping plovers from the 
endangered Great Lakes breeding population (J. Stucker, University of 
Minnesota unpublished data). However, the overall number of piping 
plovers reported using the area has declined since the species was 
listed in 1986 (NCWRC unpublished data), which corresponds to increases 
in the number of human users (NPS 2005) and off-road vehicles (Davis 
and Truett 2000).
    Oregon Inlet is one of the first beach access points for ORVs 
within Cape Hatteras National Seashore when traveling from the 
developed coastal communities of Nags Head, Kill Devil Hills, Kitty 
Hawk, and Manteo. As such, the inlet spit is a popular area for ORV 
users to congregate. A recent visitor use study of the park reported 
that Oregon Inlet is the second most popular ORV use area in the park 
(Vogelsong 2003). The majority of the Cape Hatteras National Seashore 
users in this area are ORV owners and recreational fishermen. As a 
result, sandy beach and mud and sand flat habitat being proposed as 
critical habitat in this unit may require special management 
considerations or protection, as discussed in ``Special Management 
Considerations or Protections'' above.

Unit NC-2: Cape Hatteras Point

    Unit NC-2 consists of 645.8 ac (261.4 ha) of sandy beach and sand 
and mud flat habitat in Dare County, North Carolina. Cape Hatteras 
Point (also known as Cape Point or Hatteras Cove) is located south of 
the Cape Hatteras Lighthouse. The unit extends south approximately 2.8 
mi (4.5 km) from the ocean groin near the old location of the Cape 
Hatteras Lighthouse to the point of Cape Hatteras, and then extends 
west 4.7 mi (7.6 km) along Hatteras Cove shoreline (South Beach) to the 
edge of Ramp 49 near the Frisco Campground. This unit includes lands 
from the MLLW on the Atlantic Ocean shoreline to the line of stable, 
densely vegetated dune habitat (which is not used by piping plovers and 
where PCEs do not occur). This unit contains the features essential to 
the conservation of the species (i.e., PCEs), as discussed above. This 
unit does not include the ocean groin.

[[Page 33710]]

    Consistent use by wintering piping plover has been reported at Cape 
Hatteras Point since the early 1980s, but the specific area of use was 
not consistently recorded in earlier reports. Often piping plovers 
found at Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet 
were reported as a collective group. However, more recent surveys 
report plover use at Cape Hatteras Point independently from Hatteras 
Inlet. These single day surveys have recorded as many as 13 piping 
plovers a day during migration (NCWRC unpublished data). Christmas bird 
counts regularly recorded 2 to 11 plovers using the area.
    Cape Hatteras Point is located near the Town of Buxton, the largest 
community on Hatteras Island. For that reason, Cape Hatteras Point is a 
popular area for ORV and recreational fishing. A recent visitor use 
study of the park found that Cape Hatteras Point had the most ORV use 
within the park (Vogelsong 2003). As a result, sandy beach and mud and 
sand flat habitat being proposed as critical habitat in this unit may 
require special management considerations or protection, as discussed 
in ``Special Management Considerations or Protections'' above.

Unit NC-4: Hatteras Inlet

    Unit NC-4 is approximately 4.7 mi (7.6 km) long, and consists of 
395.6 ac (160.1 ha) of sandy beach and inlet spit habitat on the 
western end of Hatteras Island and the eastern end of Ocracoke Island 
in Dare and Hyde counties, North Carolina. The unit begins at the first 
beach access point at the edge of Ramp 55 near the Graveyard of the 
Atlantic Museum on the western end of Hatteras Island and continues 
southwest to the beach access at the edge of the ocean-side parking lot 
near Ramp 59 on the northeastern end of Ocracoke Island. This unit 
includes lands from the MLLW on the Atlantic Ocean shoreline to the 
line of stable, densely vegetated dune habitat (which is not used by 
the piping plover and where PCEs do not occur) and from the MLLW on the 
Pamlico Sound side to the line of stable, densely vegetated habitat, or 
(where a line of stable, densely vegetated dune habitat does not exist) 
lands from MLLW on the Atlantic Ocean shoreline to the MLLW on the 
Pamlico Sound side. The proposed unit at Hatteras Inlet includes all 
emergent sandbars within Hatteras Inlet. This unit contains the 
features essential to the conservation of the species (i.e., PCEs), as 
discussed above.
    As we discuss in ``Application of Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) of the Act'' below, this unit does not include 
lands owned by the State of North Carolina such as Island DR-009-03/04. 
In addition, the unit does not include the Graveyard of the Atlantic 
Museum, the ferry terminal, the groin on Ocracoke Island, NC Highway 
12, or their ancillary facilities (e.g., parking lots, out buildings). 
All of these features occur outside the boundary of the proposed unit.
    Consistent use by wintering piping plover has been reported at 
Hatteras Inlet since the early 1980s, but the specific area of use was 
not consistently recorded in earlier reports. Often piping plovers 
found at Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet 
were reported as a collective group. However, more recent surveys 
report plover use at Hatteras Inlet independently from Cape Hatteras 
Point. These single day surveys have recorded as many as 40 piping 
plovers a day during migration (NCWRC unpublished data). Christmas bird 
counts regularly recorded 2 to 11 plovers using the area. Recent 
surveys have also recorded consistent and repeated use of the area by 
banded piping plovers from the endangered Great Lakes breeding 
population (J. Stucker, University of Minnesota unpublished data). 
However, the overall numbers of piping plovers reported using the area 
has declined in the last 10 years (NCWRC unpublished data), 
corresponding with increases in the number of human users (NPS 2005) 
and ORVs (Davis and Truett 2000).
    Hatteras Inlet is located near the Village of Hatteras, Dare 
County, and is the southernmost point of Cape Hatteras National 
Seashore that can be reached without having to take a ferry. As such, 
the inlet is a popular off-road vehicle and recreational fishing area. 
In fact, a recent visitor use study of the park found Hatteras Inlet 
the fourth most used area by off-road vehicles in the park (Vogelsong 
2003). As a result, sandy beach and mud and sand flat habitat being 
proposed as critical habitat in this unit may require special 
management considerations or protection, as discussed in ``Special 
Management Considerations or Protections'' above.

Unit NC-5: Ocracoke Island

    Unit NC-5 consists of 501.8 ac (203.0 ha) of sandy beach and mud 
and sand flat habitat in Hyde County, North Carolina. The unit includes 
the western portion of Ocracoke Island beginning at the beach access 
point at the edge of Ramp 72 (South Point Road), extending west 
approximately 2.1 mi (3.4 km) to Ocracoke Inlet, and then back east on 
the Pamlico Sound side to a point where stable, densely vegetated dune 
habitat meets the water. This unit includes lands from the MLLW on the 
Atlantic Ocean shoreline to the line of stable, densely vegetated dune 
habitat (which is not used by the piping plover and where primary 
constituent elements do not occur) and from the MLLW on the Pamlico 
Sound side to the line of stable, densely vegetated habitat, or (where 
a line of stable, densely vegetated dune habitat does not exist) lands 
from MLLW on the Atlantic Ocean shoreline to the MLLW on the Pamlico 
Sound side. The unit includes all emergent sandbars within Ocracoke 
Inlet. This unit contains the features essential to the conservation of 
the species (i.e., PCEs), as discussed above. The unit is adjacent to 
but does not include NC Highway 12, any portion of the maintained South 
Point Road at Ramp 72, or any of their ancillary facilities.
    Ocracoke Island had inconsistent recorded use by wintering piping 
plovers in the early 1980s, and Christmas bird counts recorded only 1 
to 6 plovers using the area throughout the early 1990s. However, since 
the late 1990s when regular and consistent surveys of the area were 
conducted, as many as 72 piping plovers have been recorded during 
migration, and 4 to 18 plovers have been regularly recorded during the 
overwinter period (NCWRC unpublished data). Recent surveys have also 
recorded consistent and repeated use of the area by banded piping 
plovers from the endangered Great Lakes breeding population (J. 
Stucker, University of Minnesota unpublished data).
    Ocracoke Inlet is located near the Village of Ocracoke, and is the 
southernmost point of the Cape Hatteras National Seashore. Ocracoke 
Island is only accessible by ferry. As such, the island is a popular 
destination for vacationers and locals interested in seclusion. The 
inlet is also a popular recreational fishing and ORV area. A recent 
visitor use study of the park reported Ocracoke Inlet was the third 
most popular ORV use area in the park (Vogelsong 2003). As a result, 
the primary threat to the wintering piping plover and its habitat 
within this unit is disturbance to and degradation of foraging and 
roosting areas by ORVs and by people and their pets. Therefore, sandy 
beach and mud and sand flat habitat being proposed as critical habitat 
in this unit may require special management considerations or 
protection, as discussed in ``Special Management Considerations or 
Protections'' above.

[[Page 33711]]

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the PCEs to be 
functionally established) to serve the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated that may be affected and the Federal 
agency has retained discretionary involvement or control over the 
action or such discretionary involvement or control is authorized by 
law. Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions may affect subsequently listed species or 
designated critical habitat or adversely modify or destroy proposed 
critical habitat.
    Federal activities that may affect the wintering population of the 
piping plover or its designated critical habitat will require section 7 
consultation under the Act. Activities on State, tribal, local or 
private lands requiring a Federal permit (such as a permit from the 
Corps under section 404 of the Clean Water Act or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also continue to be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Wintering Population of the Piping 
Plover and Its Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for wintering population of the 
piping plover

[[Page 33712]]

jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of the wintering population of 
the piping plover. The section 7(a)(2) analysis is focused not only on 
these populations but also on the habitat conditions necessary to 
support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the wintering population of the piping plover in a qualitative 
fashion without making distinctions between what is necessary for 
survival and what is necessary for recovery. Generally, if a proposed 
Federal action is incompatible with the viability of a core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population to the survival and recovery of the species 
as a whole.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting wintering population of the piping plover 
critical habitat. The key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the primary constituent elements to be 
functionally established) to serve the intended conservation role for 
the species. Generally, the conservation role of wintering population 
of the piping plover critical habitat units is to support viable core 
area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCEs to an extent that the conservation value of 
critical habitat for the wintering population of the piping plover is 
appreciably reduced. Activities that, when carried out, funded, or 
authorized by a Federal agency, may affect critical habitat and 
therefore result in consultation for the wintering population of the 
piping plover include, but are not limited to:
    (1) Actions that would significantly and detrimentally alter the 
hydrology of tidal mud and sand flats or ephemeral ponds or pools.
    (2) Actions that would significantly and detrimentally alter the 
input of sediments and nutrients necessary for the maintenance of 
geomorphic and biologic processes that ensure appropriately configured 
and productive beach systems.
    (3) Actions that would introduce significant amounts of emergent 
vegetation.
    (4) Actions that would significantly and detrimentally alter the 
topography of a site (such alteration may affect the hydrology of an 
area or may render an area unsuitable for roosting).
    (5) Actions that would reduce the value of a site by significantly 
disturbing plovers from activities such as foraging and roosting.
    (6) Actions that would significantly and detrimentally alter water 
quality, that may lead to decreased diversity or productivity of prey 
organisms or may have direct detrimental effects on piping plovers.
    (7) Actions that would impede natural processes that create and 
maintain washover passes and sparsely vegetated intertidal feeding 
habitats.
    These activities could eliminate or reduce the habitat necessary 
for foraging by eliminating or reducing the piping plovers' prey base; 
destroying or removing available upland habitats necessary for 
protection of the birds during storms or other harsh environmental 
conditions; increasing the amount of vegetation to levels that make 
foraging or roosting habitats unsuitable; and increasing recreational 
activities to such an extent that the amount of available undisturbed 
foraging or rooting habitat is reduced, with direct or cumulative 
adverse effects to individuals and completion of their life cycles.
    We consider all of the units proposed as critical habitat to 
contain features essential to the conservation of the wintering 
population of the piping plover. All units are within the geographic 
range of the species, all were occupied by the species at the time of 
listing, and are likely to be used by the wintering population of the 
piping plover. Federal agencies already consult with us on activities 
in areas currently occupied by the wintering population of the piping 
plover, or if the species may be affected by the action, to ensure that 
their actions do not jeopardize the continued existence of the 
wintering population of the piping plover.

Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographical area occupied by the species on which are 
found those physical and biological features (i) essential to the 
conservation of the species, and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographical area occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographical 
area occupied by the species that require no special management or 
protection also are not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole will provide the same 
level of protection that designation of critical habitat would provide. 
The plan need not lead to exactly the same result as a designation in 
every individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine whether 
the plan provides management, protection, or enhancement of the PCEs 
that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat within the area covered by 
the plan); (2) the plan provides assurances that the conservation 
management strategies and

[[Page 33713]]

actions will be implemented (i.e., those responsible for implementing 
the plan are capable of accomplishing the objectives, and have an 
implementation schedule or adequate funding for implementing the 
management plan); and (3) the plan provides assurances that the 
conservation strategies and measures will be effective (i.e., it 
identifies biological goals, has provisions for reporting progress, and 
is of a duration sufficient to implement the plan and achieve the 
plan's goals and objectives).
    In evaluating areas proposed for the designation of critical 
habitat, we considered islands owned by the State of North Carolina 
located within or in proximity to Oregon, Hatteras, and Ocracoke 
inlets, in Dare and Hyde counties. We have determined that the features 
essential to the conservation of the piping plover in following areas 
--DR-005-05 and DR-005-06 in Oregon Inlet, Dare County and DR-009-03/04 
in Hatteras Inlet, Dare and Hyde counties `` do not require special 
management or protection and, therefore, do not meet the definition of 
critical habitat. Thus, the areas containing these features (i.e., the 
islands) are not included in this proposal. These islands are 
specifically managed for waterbirds by the North Carolina Wildlife 
Resources Commission as defined in a February 5, 1992, letter signed by 
James S. Lofton, Secretary, North Carolina Department of 
Administration. The North Carolina Wildlife Resources Commission also 
has developed a comprehensive wildlife conservation strategy entitled 
``A Wildlife Action Plan for North Carolina'' (NCWRC 2005). In this 
document, species and habitat assessments and conservation strategies 
are discussed for the protection of estuarine and beach and dune 
communities and priority species associated with those habitats, 
including federally listed species such as the piping plover. The 
Wildlife Action Plan identifies the piping plover as a priority species 
needing research, survey, and monitoring efforts to assist in 
restoration and conservation efforts. Conservation actions identified 
in the plan to be implemented by the North Carolina Wildlife Resources 
Commission include estuarine and beach and dune community habitat 
protection and restoration; coordination with agencies in the 
enforcement of the Endangered Species Act and the Migratory Bird Treaty 
Act; education and outreach efforts directed toward the public and 
regulatory agencies to emphasize the ephemeral nature of sand and mud 
flats so these habitats will not be destroyed; increasing public 
awareness concerning potential impacts of recreational activities; 
building and encouraging setback distances and buffer zones; and 
continued coordination with waterbird working groups such as the Piping 
Plover Recovery Team. Based on the islands' limited access for 
recreational use, implementation of the Wildlife Action Plan, and the 
specific management of the islands for waterbirds, we have determined 
that (1) the physical and biological features essential to the 
conservation of the piping plover are covered under these provisions 
and conservation programs, (2) that sufficient assurances are in place 
such that the conservation and protection measures are and will be 
implemented, and (3) that sufficient assurances are in place that 
conservation and protection measures are and will be effective and 
provide a conservation benefit to the PCEs and the species. 
Consequently, we believe that the features essential to the 
conservation of the piping plover in the following areas--DR-005-05 and 
DR-005-06 in Oregon Inlet, Dare County and DR-009-03/04 in Hatteras 
Inlet, Dare and Hyde counties--do not require special management or 
protection and, therefore, do not meet the definition of critical 
habitat. Thus, the areas containing these features (i.e., the islands) 
are not included in this proposal. These islands represent the only 
areas under consideration in this proposal that are owned by the State 
of North Carolina and are therefore the only areas subject to the 
Wildlife Action Plan.
    In addition, we considered Pea Island National Wildlife Refuge 
(Dare County) as an area proposed for the designation of critical 
habitat. While portions of the refuge, totaling approximately 237 ac 
(96 ha), contain the habitat features that are essential to the 
conservation of the species, we have determined that the refuge does 
not require special management or protection and, therefore, is not 
included in this proposal. The refuge has a statutory mandate to manage 
the refuge for the conservation of listed species, and a draft 
Comprehensive Conservation Plan (CCP;USFWS 2006) provides a detailed 
implementation plan which includes preserving, protecting, creating, 
restoring, and managing foraging and roosting habitats for the piping 
plover. The draft CCP was made available to the public on February 2, 
2006 for a 30 day comment period, which ended on March 6, 2006. The 
final CCP will likely be completed by the end of 2006.
    The draft CCP more specifically describes the refuge's objectives 
to meet its goals. Specific to the piping plover, the objective is to 
``protect and monitor use of nesting, foraging, and wintering habitat 
by piping plovers continuously.'' Strategies to achieve this goal 
include monitoring piping plovers, signing and closing active nesting 
areas, and protecting piping plovers from predators (e.g., raccoons, 
feral cats), as needed. We have determined that (1) the physical and 
biological features essential to the conservation of the piping plover 
are covered under the draft CCP for the refuge, (2) that sufficient 
assurances are in place such that the CCP will be finalized and that 
the conservation and protection measures are and will be implemented, 
and (3) that sufficient assurances are in CCP that conservation and 
protection measures are and will be effective and provide a 
conservation benefit to the primary constituent elements and the 
species. As a result of Pea Island's refuge-wide effort and long-term 
commitment to provide piping plover habitat, we believe the physical 
and biological features for the piping plover in this area do not 
require special management or protection and, therefore, do not meet 
the definition of critical habitat. Thus, the areas containing these 
features (i.e., Pea Island National Wildlife Refuge) are not included 
in this proposal.
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact, of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if [s]he determines that the benefits of 
such exclusion outweigh the benefits of specifying such area as part of 
the critical habitat, unless [s]he determines, based on the best 
scientific data available, that the failure to designate such area as 
critical habitat will result in the extinction of the species. In 
making that determination, the Secretary is afforded broad discretion 
and the Congressional record is clear that in making a determination 
under the section the Secretary has discretion as to which factors and 
how much weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of inclusion. If an exclusion is 
contemplated, then we must determine whether excluding the area would 
result

[[Page 33714]]

in the extinction of the species. In the following sections, we address 
a number of general issues that are relevant to the exclusions we 
considered. In addition, the Service is conducting an economic analysis 
of the impacts of the proposed critical habitat designation and related 
factors, which will be available for public review and comment. 
Pursuant to the November 1, 2004 opinion in Cape Hatteras Access 
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d 
108 (D.D.C. 2004)), this analysis will focus on the impacts to ORV use 
and costs of consulting on National Park Service activities. Based on 
public comment on that document, the proposed designation itself, and 
the information in the final economic analysis, additional areas beyond 
those identified in this assessment may be excluded from critical 
habitat by the Secretary under the provisions of section 4(b)(2) of the 
Act. This is provided for in the Act, and in our implementing 
regulations at 50 CFR 242.19.
    In evaluating areas proposed for the designation of critical 
habitat, we considered that Cape Hatteras National Seashore has 
developed and submitted for public comment a proposed Interim Protected 
Species Management Strategy/Environmental Assessment (Interim 
Strategy). In addition, the Seashore has determined in a Biological 
Assessment that implementation of the proposed Interim Strategy is 
likely to adversely affect the piping plover. Therefore, the Seashore 
has entered into formal consultation with the Service under section 7 
of the Act. The consultation is currently ongoing. The Interim Strategy 
is proposed to address recreational access and the associated 
management of federally-listed species on the Seashore until an Off-
road Vehicle Management Plan (ORV Plan) is completed to address 
vehicular access. The ORV Plan is proposed for development through a 
negotiated rulemaking process that is tentatively scheduled to take 
three years to complete. The negotiated rulemaking process was recently 
initiated, but information on its ultimate effects on the piping plover 
or the species' habitat is unknown at this time. The Service will 
coordinate with the Seashore in the development of the ORV Plan and the 
potential impacts it may have on the piping plover and other federally-
listed species. Lands containing the physical and biological features 
essential to the conservation of the piping plover on the Seashore and 
affected by the Interim Strategy are proposed as critical habitat. 
However, we specifically solicit comments on the inclusion or exclusion 
of such areas.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for the wintering population of the piping plover is being prepared. 
Pursuant to the November 1, 2004 opinion in Cape Hatteras Access 
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d 
108 (D.D.C. 2004)), this analysis will focus on the impacts to ORV use 
and costs of consulting on National Park Service activities. We will 
announce the availability of the draft economic analysis as soon as it 
is completed, at which time we will seek public review and comment. At 
that time, copies of the draft economic analysis will be available for 
downloading from the Internet at http://nc-es.fws.gov, or by contacting 
the Raleigh Fish and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We 
intend to schedule public hearings once the draft economic analysis is 
available such that we can take public comment on the proposed 
designation and economic analysis simultaneously. We will schedule 
public hearings on this proposal, if any are requested, and announce 
the dates, times, and places of those hearings in the Federal Register 
and local newspapers at least 15 days prior to the first hearing.

Editorial Changes

    We are also proposing to consolidate the entry for piping plover in 
the list of Endangered and Threatened Wildlife at 50 CFR 17.11(h). 
Currently, the entry separates the threatened populations of this 
species in two rows. In this proposal, we are combining them into one 
row. This change would not affect the listing status of any populations 
of piping plover.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement

[[Page 33715]]

Fairness Act, and Executive Order 12630.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. The draft economic analysis can be obtained from the Internet 
Web site at http://nc-es.fws.gov or by contacting the Raleigh Fish and 
Wildlife Office directly (see ADDRESSES section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. This draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, the Service will publish a notice of 
availability of the draft economic analysis of the proposed designation 
and reopen the public comment period for the proposed designation for 
an additional 60 days. The Service will include with the notice of 
availability, as appropriate, an initial regulatory flexibility 
analysis or a certification that the rule will not have a significant 
economic impact on a substantial number of small entities accompanied 
by the factual basis for that determination. The Service has concluded 
that deferring the RFA finding until completion of the draft economic 
analysis is necessary to meet the purposes and requirements of the RFA. 
Deferring the RFA finding in this manner will ensure that the Service 
makes a sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the wintering 
population of the piping plover in areas of North Carolina is a 
significant rule under Executive Order 12866 in that it may raise novel 
legal and policy issues, however, it is not expected to significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding,'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because only Federal lands are proposed for 
designation. As such, Small Government Agency Plan is not required. We 
will, however, further evaluate this issue as we conduct our economic 
analysis, and we will revise this assessment if appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in North Carolina. The designation of critical habitat on 
Federal lands currently occupied by the wintering population of the 
piping plover imposes no additional restrictions to those currently in 
place and, therefore, has

[[Page 33716]]

little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the conservation of 
the species are specifically identified. While making this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

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

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It has been our position that, outside the Tenth Circuit, we do not 
need to prepare environmental analyses as defined by the National 
Environmental Policy Act (NEPA) in connection with designating critical 
habitat under the Endangered Species Act of 1973, as amended. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). However, the court 
in Cape Hatteras Access Preservation Alliance v. U.S. Department of 
Interior (344 F. Supp. 2d 108 (D.D.C. 2004), in ordering us to revise 
the critical habitat designation, ordered us to prepare an 
environmental analysis. To comply with the court's order, we are 
preparing an environmental assessment pursuant to NEPA and will notify 
the public of its availability when it is finished.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands with features essential for the conservation 
of the wintering population of the piping plover in the areas of North 
Carolina that we are proposing to designate as critical habitat. 
Therefore, this rule does not propose critical habitat for the 
wintering population of the piping plover on tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Raleigh Fish and 
Wildlife Office (see ADDRESSES section).

Author(s)

    The primary author of this package is the Raleigh Fish and Wildlife 
Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.11(h) by revising the entry for the ``Plover, 
piping'' under BIRDS in the List of Endangered and Threatened Wildlife 
to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

[[Page 33717]]

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

    3. In Sec.  17.95(b), amend the entry for ``Piping Plover 
(Charadrius melodus) Wintering Habitat'' as follows:
    a. In paragraph 1., revise the text as set forth below;
    b. In paragraph 2., revise the text as set forth below;
    c. Under 3., remove the words ``North Carolina (Maps were digitized 
using 1993 DOQQs, except NC-3 (1993 DRG)'' and add in their place a new 
header and parenthetical text as set forth below;
    d. Remove the critical habitat description for Unit NC-1 and add in 
its place a new critical habitat description for Unit NC-1 as set forth 
below;
    e. Remove the critical habitat description for Unit NC-2 and add in 
its place a new critical habitat description for Unit NC-2 as set forth 
below;
    f. Remove the critical habitat description for Unit NC-4 and add in 
its place a new critical habitat description for Unit NC-4 as set forth 
below;
    g. Remove the critical habitat description for Unit NC-5 and add in 
its place a new critical habitat description for Unit NC-5 as set forth 
below;
    h. Remove the first map for ``North Carolina Unit: 1'' and add in 
its place a new map ``North Carolina Unit: 1'' as set forth below; and
    i. Remove the second map for ``North Carolina Units: 2, 3, 4, 5, & 
6'' and add in its place a new map ``North Carolina Units: 2, 3, 4, 5, 
& 6'' as set forth below.


Sec.  17.95  Critical habitat--fish and wildlife.

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

Piping Plover (Charadrius melodus) Wintering Habitat

* * * * *
    1. The primary constituent elements essential for the 
conservation of wintering piping plovers are those habitat 
components that support foraging, roosting, and sheltering and the 
physical features necessary for maintaining the natural processes 
that support these habitat components. The primary constituent 
elements are: (1) Intertidal beaches and flats (between annual low 
tide and annual high tide) and associated dune systems and flats 
above annual high tide. (2) Sand and/or mud flats with no or very 
sparse emergent vegetation. These flats may be covered or partially 
covered by a mat of blue-green algae. (3) Adjacent unvegetated or 
sparsely vegetated sand, mud, or algal flats above high tide for 
roosting piping plovers. Such sites may have debris, detritus 
(decaying organic matter), or micro-topographic relief (less than 50 
cm above substrate surface) offering refuge from high winds and cold 
weather. (4) Surf-cast algae for feeding of prey. (5) Sparsely 
vegetated backbeach (beach area above mean high tide seaward of the 
dune line, or in cases where no dunes exist, seaward of a 
delineating feature such as a vegetation line, structure, or road) 
for roosting and refuge during storms, spits (a small point of land, 
especially sand, running into water) for feeding and roosting. (6) 
Salterns (bare sand flats in the center of mangrove ecosystems that 
are found above mean high water and are only irregularly flushed 
with sea water). (7) Washover areas for feeding and roosting. 
Washover areas are broad, unvegetated zones with little or no 
topographic relief that are formed and maintained by the action of 
hurricanes, storm surge, or other extreme wave action. (8) Natural 
conditions of sparse vegetation and little or no topographic relief 
mimicked in artificial habitat types (e.g., dredge spoil sites).
    2. Critical habitat does not include manmade structures (such as 
bridges, ocean groins, buildings, aqueducts, airports, roads, and 
other paved areas) or their ancillary facilities (such as lawns, 
flower beds, or other maintained landscaped areas) and the land on 
which they are located existing on the effective date of this rule.
    3. * * *
    North Carolina (Data layers defining map units 1, 2, 4, and 5 
were created from GPS data collected in the field in May and June of 
2005, and modified to fit the 1:100,000 scale North Carolina county 
boundary with shoreline (cb100sl) data layer from the BasinPro 8 
data set published by the North Carolina Center for Geographic 
Information and Analysis, which was compiled in 1990. Other map 
units were digitized using 1993 DOQQs, except NC-3 which utilized 
1993 DRG.)

Unit NC-1: Oregon Inlet, 114.9 ha (284.0 ac) in Dare County, North 
Carolina

    This unit is within Cape Hatteras National Seashore and extends 
from the southern portion of Bodie Island to Oregon Inlet. It begins 
at the edge of Ramp 4 near the Oregon Inlet Fishing Center on Bodie 
Island and extends south approximately 2.8 km (1.7 mi) to Oregon 
Inlet. This unit includes lands from the mean lower low water (MLLW) 
on the Atlantic Ocean shoreline to the line of stable, densely 
vegetated dune habitat (which is not used by the piping plover and 
where primary constituent elements do not occur) and from the MLLW 
on the Pamlico Sound side to the line of stable, densely vegetated 
habitat, or (where a line of stable, densely vegetated dune habitat 
does not exist) lands from MLLW on the Atlantic Ocean shoreline to 
the MLLW on the Pamlico Sound side. Any emergent sandbars south and 
west of Oregon Inlet are included, except lands owned by the State 
of North Carolina such as islands DR-005-05 and DR-005-06 (not shown 
on map).

Unit NC-2: Cape Hatteras Point, 261.4 ha (645.8 ac) in Dare County, 
North Carolina

    This unit is within Cape Hatteras National Seashore and 
encompasses the point of Cape Hatteras (Cape Point). The unit 
extends south approximately 4.5 km (2.8 mi) from the ocean groin 
near the old location of the Cape Hatteras Lighthouse to the point 
of Cape Hatteras, and then extends west 7.6 km (4.7 mi) (straight-
line distances) along Hatteras Cove shoreline (South Beach) to the 
edge of Ramp 49 near the Frisco Campground. The unit includes lands 
from the MLLW on the Atlantic Ocean to the line of stable, densely 
vegetated dune habitat (which is not used by the piping plover and 
where primary constituent elements do not occur). This unit does not 
include the ocean groin.
* * * * *

Unit NC-4: Hatteras Inlet, 106.1 ha (395.6 ac) in Dare and Hyde 
Counties, North Carolina

    This unit is within Cape Hatteras National Seashore and extends 
from the western end of Hatteras Island to the eastern end of 
Ocracoke Island. The unit extends approximately 4.5 km (2.8 mi) 
southwest from the first beach access point at the edge of Ramp 55 
at the end of NC Highway 12 near the Graveyard of the Atlantic 
Museum on the western end of Hatteras Island to the edge of the 
beach access point at the ocean-side parking lot (approximately 0.1 
mile south of Ramp 59) on NC Highway 12, approximately 1.25 km (0.78 
miles) southwest (straight-line distance) of the ferry terminal on 
the northeastern end of Ocracoke Island. This unit includes lands 
from the MLLW on the Atlantic Ocean shoreline to the line of stable, 
densely vegetated dune habitat (which is not used by the piping 
plover and where primary constituent elements do not occur) and from 
the MLLW on the Pamlico Sound side to the line of stable, densely 
vegetated habitat, or (where a line of stable, densely vegetated 
dune habitat does not exist) lands from MLLW on the Atlantic Ocean 
shoreline to the MLLW on the Pamlico Sound side. All emergent 
sandbars within Hatteras Inlet between Hatteras Island and Ocracoke 
Island are also included, except lands owned by the State of North 
Carolina such as Island DR-009-03/04 (not shown on map).

Unit NC-5: Ocracoke Island, 203.0 ha (501.8 ac) in Hyde County, North 
Carolina

    This unit is within Cape Hatteras National Seashore and includes 
the western portion of Ocracoke Island beginning at the beach access 
point at the edge of Ramp 72 (South

[[Page 33718]]

Point Road), extending west approximately 3.4 km (2.1 mi) to 
Ocracoke Inlet, and then back east on the Pamlico Sound side to a 
point where stable, densely vegetated dune habitat meets the water. 
This unit includes lands from the MLLW on the Atlantic Ocean 
shoreline to the line of stable, densely vegetated dune habitat 
(which is not used by the piping plover and where primary 
constituent elements do not occur) and from the MLLW on the Pamlico 
Sound side to the line of stable, densely vegetated habitat, or 
(where a line of stable, densely vegetated dune habitat does not 
exist) lands from MLLW on the Atlantic Ocean shoreline to the MLLW 
on the Pamlico Sound side. All emergent sandbars within Ocracoke 
Inlet are also included. This unit does not include any portion of 
the maintained South Point Road, NC Highway 12, or any of their 
ancillary facilities.
* * * * *
BILLING CODE 4310-55-P

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* * * * *

    Dated: May 31, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-5192 Filed 6-9-06; 8:45 am]
BILLING CODE 4310-55-C