[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29294-29321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10742]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Revised Designation of 
Critical Habitat for the Wintering Population of the Piping Plover 
(Charadrius melodus) in Texas; Proposed Rule

  Federal Register / Vol. 73, No. 98 / Tuesday, May 20, 2008 / Proposed 
Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0055; 92210-1117-0000-FY08-B4]
RIN 1018-AV46


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Wintering Population of the 
Piping Plover (Charadrius melodus) in Texas

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 
designate revised critical habitat for the wintering population of the 
piping plover (Charadrius melodus) in 18 specific units in Texas under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 138,881 acres (ac) (56,206 hectares (ha)) fall within the 
boundaries of the proposed revised critical habitat designation. The 
proposed revised critical habitat is located in Cameron, Willacy, 
Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and Brazoria 
Counties, Texas. Other previously designated critical habitat for the 
wintering piping plover in Texas or elsewhere in the United States is 
unaffected by this proposal.

DATES: Send your comments on or before July 21, 2008. We must receive 
requests for public hearings, in writing, at the address shown in the 
FOR FURTHER INFORMATION CONTACT section by July 7, 2008.

ADDRESSES: You may submit comments by one of the followingmethods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2008-0055; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S. 
Fish and Wildlife Service, Corpus Christi Ecological Services Office, 
6300 Ocean Drive, TAMU-CC, Unit 5837, Corpus Christi, TX 78412-5837; 
telephone 361-994-9005; facsimile 361-994-8262. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons we should or should not designate habitat as 
``critical habitat'' in the 19 court-vacated units and adjacent areas 
in Texas under section 4 of the Act (16 U.S.C. 1531 et seq.), including 
whether there are threats to the species from human activity, the 
degree of which can be expected to increase due to the designation, and 
whether that increase in threat outweighs the benefit of designation 
such that the designation of critical habitat is not prudent.
    (2) Specific information on:
     The amount and distribution of wintering piping plover 
habitat in the 19 court-vacated units and areas adjacent to those 19 
units in Texas, and
     What areas occupied at the time of listing, but located 
within or adjacent to these specific units, are 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 amended 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, and the benefits of including or excluding 
areas that exhibit these impacts.
    (5) The appropriateness of the possible exclusion of approximately 
28,474 acres (ac) (11,523 hectares (ha)) of wintering piping plover 
habitat from the final designation based on the benefits to the 
conservation of the species and its habitat provided by the 
Comprehensive Conservation Plans (CCPs) being drafted for National 
Wildlife Refuge (NWR) lands (see the Areas Considered for Exclusion 
Under Section 4(b)(2) of the Act section for further discussion). 
Specifically:
    (a) The benefits to the conservation of the species provided by a 
CCP;
    (b) How the CCPs address the physical and biological features in 
the absence of designated critical habitat;
    (c) The specific conservation benefits to the wintering piping 
plover that would result from designation;
    (d) The certainty of implementation of the CCPs; and
    (e) The benefits of excluding from the critical habitat designation 
the areas covered by the CCPs.
    We are particularly interested in knowing how existing or future 
NWR partnerships may be positively or negatively affected by a 
designation, or through exclusion from critical habitat;
    (6) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (7) Whether there are areas we previously designated, but are not 
proposing for revised designation here, that we should include in our 
critical habitat designation.
    (8) The existence of any conservation or management plans being 
implemented by public or private land management agencies or owners on 
lands proposed for designation that we should consider in connection 
with possible exclusion of those lands from the designation under 
section 4(b)(2) of the Act. Please include information on any benefits 
(educational, regulatory, etc.) of including or excluding lands from 
this proposed designation. We are interested in knowing how 
partnerships may be positively or negatively affected by a designation, 
or through exclusion from critical habitat, and costs and other 
relevant impacts associated with the designation.
    (9) Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed designation and, in particular, any 
impacts on seismic studies for oil and gas drilling, and the benefits 
of including or excluding areas that exhibit these impacts.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the website. If you submit a hardcopy comment that includes personal 
identifying information, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we

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used in preparing this proposed rule, will be available for public 
inspection on http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Corpus 
Christi Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
designating revised critical habitat in this proposed rule. 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, p. 2). Information 
from observation of color-banded piping plovers indicates that the 
winter ranges of the breeding populations overlap to a significant 
degree. Therefore, we cannot determine the source breeding population 
of a given wintering individual 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. 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, p. 4). Individual plovers tend to return to the same wintering 
sites year after year as evidenced by multi-year observations of 
uniquely marked individuals (Nicholls and Baldassarre 1990; Drake 
1999a).
    Wintering plovers are dependent on a mosaic of habitat patches, and 
move among these patches depending on local weather and tidal 
conditions. One study by Drake (1999a) monitored the movement of 48 
piping plovers in south Texas for one season. She found that these 
birds had a mean home range of 3,117 ac (1,262 ha). Drake (1999a) also 
noted that the mean linear distance moved per individual bird was 2 
miles (mi) (3.3 kilometer (km)) from the fall through the spring. 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 are listed as 
threatened under the Act due to the difficulty of knowing where they 
bred or were hatched.
    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 mi (2,892 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, Dare and Hyde Counties, North Carolina, and the 
Cape Hatteras Access Preservation Alliance challenged the designation 
of four critical habitat units on the Cape Hatteras National Seashore, 
North Carolina. A November 1, 2004, court opinion vacated and remanded 
these units for reconsideration (Cape Hatteras Access Preservation 
Alliance v. U.S. Department of the Interior (344 F.Supp.2d108(D.D.C. 
2004)). On June 12, 2006, we published a proposed rule in the Federal 
Register (71 FR 33703) to amend the Service's critical habitat 
designation in North Carolina. We anticipate publishing a final 
designation in late 2008.
    The Texas General Land Office (GLO) filed suit on March 20, 2006, 
challenging our designation of 19 units of critical habitat along the 
Texas coast (Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 22, 23, 
27, 28, 31, 32, and 33). In a July 26, 2006, stipulated settlement 
agreement and court order, the court vacated and remanded the 
designation for these units to us for reconsideration (Texas General 
Land Office v. U.S. Department of the Interior, et al., No. 06-cv-00032 
(S.D. Tex.). This proposed rule addresses only those 19 court-vacated 
and remanded units (referenced above). It also addresses 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), including Texas units 1, 2, 5, 6, 11, 12, 13, 20, 21, 
24, 25, 26, 29, 30, 34, 35, 36, and 37.
    For 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). We are proposing this action in accordance with section 4(b)(2) 
of the Act and in compliance with the above-mentioned settlement 
agreement and court order.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) 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
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protections; and
    (2) 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 the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7 of the Act requires consultation on Federal actions 
that may affect 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 the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by the landowner. Where the landowner seeks or 
requests Federal agency funding or authorization that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7 would apply, but even in the event of a destruction or 
adverse modification finding, the landowner's obligation is not to 
restore or recover the species, but to implement reasonable and prudent

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alternatives to avoid destruction or adverse modification of critical 
habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain 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 (areas on which are found the 
primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)), 
laid out in the appropriate spatial arrangement essential to the 
conservation of the species.
    Occupied habitat that contains the features essential to the 
conservation of the species meets the definition of critical habitat 
only if those features may require special management considerations or 
protections. Under the Act, we can designate unoccupied areas as 
critical habitat only when we determine that the best available 
scientific data demonstrate that the designation of that area is 
essential to the conservation needs of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our 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 we are determining which areas should be proposed as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may 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.
    Habitat is often dynamic (shifting spatially over time) 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 we may eventually determine, based on scientific data not 
now available to the Service, are necessary for the recovery of the 
species. For these reasons, a critical habitat designation does not 
signal that habitat outside the designated area is unimportant now or 
may not be required for recovery of the species in the future.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions we implement under section 7(a)(1) of the Act. These areas are 
also subject to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard for Federal agency actions, as determined on 
the basis of the best available scientific information at the time of 
the agency action. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
sometimes result in jeopardy findings. Similarly, if new information 
available to these projects and associated planning efforts calls for a 
different outcome, 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.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas occupied at the time of listing 
that contain the physical or biological features essential to the 
conservation of the wintering population of the piping plover, areas 
unoccupied at the time of listing that are essential to the 
conservation of the wintering population of the piping plover, or both. 
We are not currently proposing any areas outside the geographical area 
presently occupied by the species because occupied areas are sufficient 
for the conservation of the species.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. These sources included, but were 
not limited to, 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 wintering piping plovers in Texas, we 
evaluated these areas using wintering piping plover occurrence data 
from 1991, 1996, 2001, and 2006 international piping plover winter 
population censuses. We considered these data along with other 
occurrence data (including presence or 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 the wintering 
population of the piping plover (see final rule at 66 FR 36038).
    To map bayside areas containing 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, 1992 National Wetlands Inventory (NWI) data (except for Unit 
TX-22 which had 2001 data available) fitted to 2005 National 
Agriculture Imagery Program (NAIP) aerial photographs, and regional 
Geographic Information System (GIS) coverages that defined shorelines. 
The NWI data allowed non-PCEs to be removed from critical habitat 
designation and PCEs to be delineated more precisely. Based on their 
NWI classification, 10 wetland habitats for the bayside areas met our 
definition of PCEs (see Primary Constituent Elements section below). 
Their codes and brief descriptions are provided here; for a more 
complete description of each wetland habitat, go to http://www.fws.gov/nwi/mapcodes.htm.

M2USN--Marine (gulfside) sandy coastline (beach), regularly 
inundated by tides
M2USP--Marine (gulfside) sandy coastline (beach), irregularly 
inundated by tides
E2AB1N--Estuarine (bayside) algal mud or sand flats, regularly 
inundated by tides
E2AB1P--Estuarine (bayside) algal mud or sand flats, irregularly 
inundated by tides
E2AB3M--Estuarine (bayside) grass flats of mud or sand, irregularly 
inundated by tides
E2USM--Estuarine (bayside) sandy shore (beach/sandbar), rarely 
exposed by tidal fluctuation
E2USN--Estuarine (bayside) sandy shore (beach/sandbar), regularly 
inundated by tides
E2USP--Estuarine (bayside) sandy shore (beach/sandbar), irregularly 
inundated by tides
L1UBKhs--Impounded, artificially flooded open water dredge spoil 
pit, greater than 20 ac (8 ha)
L2USKhs--Impounded, artificially flooded sandy bottom dredge spoil 
pit, greater than 20 ac (8 ha)

    We are aware that wintering piping plovers in Texas also use a NWI 
wetland

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habitat that is classified as subtidal with rooted vascular vegetation 
which is usually five or more species of seagrass. Although that 
habitat is classified as subtidal and appears in the NAIP aerial 
photographs as such, when portions of it are exposed at very low tides, 
wintering plovers forage in them. However, because we are unable to 
identify those exposed portions on the aerial photographs, we are 
unable to map them and, therefore, we are unable to propose them for 
critical habitat designation.
    To map the gulfside, we used 2005 NAIP imagery as a base from which 
the vegetation and water lines were digitized at a scale of 1:5,000 
(using ESRI ArcMap 9.2 software) to produce polygons of critical 
habitat. The mean lower low waterline (MLLW) was used as the lower 
limit of the intertidal habitat used by wintering piping plovers. Due 
to the dynamic nature of the gulfside shoreline, the MLLW vector data 
from the National Oceanic and Atmospheric Administration (NOAA) was 
often misaligned with the shoreline in the 2005 NAIP aerial 
photography. To correct misalignments, we worked with unit TX-3, which 
had a well-aligned MLLW line. In that unit, we measured the average 
distance from the well-aligned MLLW line to the shoreline in the 2005 
NAIP aerial photographs. We took measurements every 328 feet (ft) (100 
meters (m)) along unit TX-03, and averaged them. The 184 ft (56 m) 
average distance was then used as an estimated MLLW line that was 
applied in all coastal (gulfside) areas. The landward limit of the 
gulfside critical habitat units was usually defined by densely 
vegetated dunes, which do not provide habitat for piping plovers.
    We measured the accuracy of the aerial photographs we used by 
gathering Global Positioning System (GPS) readings at 29 locations and 
plotting them over the photographs to determine how close those photo 
points were to actual locations. The offset distance ranged from 10 to 
43 ft (3 to 13 m). This information is in the GIS metadata to document 
the data's horizontal accuracy.
    We included those areas within or adjacent to the 19 court-vacated 
units that contain essential physical or biological features along bay 
and gulf shorelines for which occurrence data indicate a consistent use 
by piping plovers, with observations over two or more wintering seasons 
between 1997 and 2007. We have not included the area of Allyn's Bight 
(court-vacated unit TX-17) because the PCEs have been reduced to two 
small, disjunct fragments that are not of sufficient size and spatial 
arrangement for wintering plovers. Therefore, we do not consider the 
vacated unit to be suitable for critical habitat designation. Within 
the remaining 18 court-vacated units, we also did not include very 
small areas (generally less than 5 ac (2.0 ha)) and areas disjunct from 
larger polygons containing the PCEs. We are assuming that when these 
areas were included in our original designation in 2001, either there 
were PCEs present that connected them to the larger polygons of PCEs or 
they were included in error because our mapping methodology was not as 
precise as the methodology we are using for this proposed revised 
designation. As a consequence, some of the units are smaller than when 
we originally designated them. In contrast, we expanded the boundaries 
of some units to capture complete polygons of PCEs, which we believe 
have shifted outside the boundaries we designated originally due to 
storms or other natural events. By expanding some boundaries to capture 
larger polygons and shrinking other boundaries to remove small and 
disjunct polygons, we believe we have provided a sufficient quantity of 
critical habitat in the appropriate spatial arrangement for the 
wintering population of the piping plover in Texas.
    Delineating specific locations for designation as critical habitat 
for the wintering population of the piping plover 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. To ensure that areas containing features considered 
essential to the piping plover are included in this proposed 
designation, the textual unit descriptions in the regulation, 
definitively determine whether an area is within the critical habitat 
boundary. Our textual descriptions of the boundaries of each unit use 
reference points (such as roads or channels), latitude/longitude 
coordinates, the edge of a PCE (such as the edge of a sand flat or mud 
flat), the MLLW line, or the edge of a management unit (such as a park 
or municipality). Within the described boundary for each unit, the unit 
itself is restricted to only those areas that are utilized by the 
piping plover and contain the physical and biological features needed 
(the PCEs). These proposed unit boundaries are static and will not move 
over time unless we re-designate the boundaries. Unit boundaries were 
drawn to exclude manmade structures, such as roads or cuts to allow 
boat traffic. However, bollards, which are small posts placed to 
preclude driving on the beach, are not PCEs and we propose to exclude 
them from the boundary of critical habitat, although they are too small 
to digitally delete from maps at the scale of 1:5,000 that we used to 
delineate the critical habitat boundaries. Although we are not 
publishing UTM coordinates for the boundaries of the proposed critical 
habitat units in this proposed rule, they will be included in the final 
rule.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas occupied by 
the species at the time of listing to propose as critical habitat, we 
consider the physical and biological features that are essential to the 
conservation of the species to be the primary constituent elements laid 
out in the appropriate spatial arrangement for conservation of the 
species. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific PCEs required for the wintering population 
of the piping plover 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).

Space for Individual and Population Growth and for Normal Behavior

    Behavioral observations of piping plovers on the wintering grounds 
suggest that they spend the majority of their time foraging (Nicholls 
and Baldassarre 1990; Drake 1999a, 1999b). When not foraging, plovers 
can be found roosting, preening, bathing, in aggressive encounters with 
other piping plovers and other shorebird species, and moving among 
available habitat locations (Zonick and Ryan 1996).
    The habitats used by wintering birds support these behaviors and 
include beaches, mud flats, sand flats, algal flats, spits, and 
washover areas. The intertidal sand or mud flats are used by the 
plovers for foraging, bathing and

[[Page 29298]]

aggressive encounters and have no or very sparse emergent vegetation. 
In some cases, these flats may be covered or partially covered by a mat 
of blue-green algae or fine shell. Spits are small points of land, 
especially sand, surrounded by water; they are used by wintering 
plovers for feeding and roosting. Washover areas, also used for 
foraging and roosting, are broad, unvegetated areas on the back side of 
sand dunes with little or no topographic relief formed by breaks in the 
dunes that are caused and maintained by extreme wave actions. 
Unvegetated or sparsely vegetated sand, mud, or algal flats above high 
tide are also used, especially for roosting. These sites may have 
debris or detritus (decaying organic matter). Some of these components 
(sparse vegetation, little or no topographic relief) are mimicked in 
artificial habitat types, particularly dredge spoil sites. Although 
they are used less commonly by piping plovers, we proposed them for 
critical habitat designation when occupancy has been confirmed.
    Wintering plovers are dependent on a mosaic of these habitat 
patches, and move among them depending on local weather and tidal 
conditions. The habitats 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. The most dynamic of these areas are those that are on 
barrier islands or on mainland areas that are not protected by barrier 
islands; these areas are adjacent to the Gulf of Mexico. Areas that are 
on the barrier islands or mainland and adjacent to the bay between the 
barrier islands and mainland are less dynamic.

Food

    Primary prey of wintering plovers include polychaete marine worms, 
various crustaceans, insects, and occasionally bivalve mollusks 
(Nicholls 1989; Zonick and Ryan 1996). Wintering piping plovers peck 
for prey from on top of or just beneath the surface. Foraging usually 
takes place on moist or wet sand or mud flats, or fine shell that 
covers the sand or mud. These substrates may sometimes contain surfcast 
algae or be covered by a mat of blue-green algae.

Cover or Shelter

    Wintering piping plovers roost and take shelter from storms and 
cold weather in backbeach areas that are above mean high tide and 
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. 
These backbeach areas consist of unvegetated or sparsely vegetated 
sand, mud, or algal flats. These flats may have microtopographic relief 
(less than 20 in (50 cm) above the substrate surface), which offers 
important shelter from high winds, storms, and cold weather.

Primary Constituent Elements for the Wintering Population of the Piping 
Plover

    Within the geographical area we know to be occupied by the 
wintering population of the piping plover, we must identify the primary 
constituent elements (PCEs) laid out in the spatial arrangement 
essential to the conservation of the species (i.e., essential physical 
and biological features) that may require special management 
considerations or protections. All areas proposed as critical habitat 
units in Texas in this proposed revised rule are currently occupied 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, we are not changing PCEs previously identified which 
remain based on the best available scientific information. They 
constitute the features that are essential for the conservation of 
wintering piping plovers along the coasts of North Carolina, South 
Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. 
The PCEs in Texas are found in geologically dynamic coastal areas along 
the Gulf of Mexico and along the shores of bays linked to the Gulf.
    Based on the above needs, our current knowledge of the life 
history, biology, and ecology of the species, and the habitat 
requirements for sustaining the essential life history functions of the 
species on its wintering grounds, we have determined that PCEs for the 
wintering population of the piping plover are:
    (1) Intertidal sand beaches (including sand flats) or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation for feeding. In some cases, these flats may be 
covered or partially covered by a mat of blue-green algae.
    (2) Unvegetated or sparsely vegetated sand, mud, or algal flats 
above annual high tide for roosting. Such sites may have debris or 
detritus and may have micro-topographic relief (less than 20 in (50 cm) 
above substrate surface) offering refuge from high winds and cold 
weather.
    (3) Surf-cast algae for feeding.
    (4) Sparsely vegetated backbeach, which is the 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. Backbeach is used by plovers for roosting and 
refuge during storms.
    (5) Spits, especially sand, running into water for foraging and 
roosting.
    (6) Salterns, or 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) Unvegetated washover areas with little or no topographic relief 
for feeding and roosting. Washover areas are formed and maintained by 
the action of hurricanes, storm surges, or other extreme wave actions.
    (8) Natural conditions of sparse vegetation and little or no 
topographic relief mimicked in artificial habitat types (e.g., dredge 
spoil sites).
    We have designed this proposed revised designation for the 
conservation of the PCEs necessary to support the life history 
functions of the species and the areas containing those PCEs in the 
appropriate spatial arrangement essential for the conservation of the 
species where it winters.
    Because not all life history functions require all the PCEs, not 
all proposed revised critical habitat units in Texas will contain all 
the PCEs. We propose units for designation based on sufficient PCEs 
being present to support at least one of the species' wintering life 
history functions.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the occupied 
areas contain features essential to the conservation of the species 
that may require special management considerations or protections.
    Primary threats to the wintering population of piping plover that 
may require special management or protection are:
    (1) Disturbance of foraging and roosting plovers by humans, 
vehicles, and domestic animals;
    (2) Predation, especially falcons, hawks, coyotes, bobcats and 
feral cats; and
    (3) Modification and loss of habitat due to uncontrolled 
recreational access and beach stabilization efforts (e.g., beach 
nourishment, beach maintenance, sediment dredging and disposal, inlet 
channelization, construction of jetties and other hard structures).

[[Page 29299]]

    Foraging and roosting piping plovers may be disturbed by events 
that result in flushing birds or disrupting normal feeding or roosting 
times and causing excessive alertness or abandonment of the area. Such 
disturbance can be caused by humans carrying out recreational 
activities such as walking on the beach, flying kites, or shooting 
fireworks. Driving vehicles on the beach also can disturb foraging and 
roosting plovers, as can pets being allowed to run or roam freely on 
the beach. Predation rates on piping plovers may increase above normal 
because human activities attract predators thereby increasing their 
numbers. Wintering piping plover habitat can be modified or lost by 
uncontrolled recreational access, such as off-road vehicle (ORV) use, 
pedestrians, and domestic animals. Additionally, habitat modification 
and loss occurs with beach stabilization activities that prevent the 
natural transfer and erosion and accretion of sediments along the ocean 
shoreline. Beach stabilization efforts that threaten to impact 
wintering piping plover habitat include beach nourishment, beach 
maintenance, sediment dredging and disposal, inlet channelization, and 
construction on jetties and other hard structures. However, when these 
efforts, in particular sediment dredging and disposal, result in PCEs 
that mimic natural PCEs, habitat is created. 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 vehicle and pedestrian 
use of some areas 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 all of the PCEs and reduce piping 
plover disturbance and predation caused by vehicle use, pedestrians, 
and pets. Managing access might also improve the available habitats for 
conservation of piping plovers.

Criteria Used To Identify Critical Habitat

    All proposed revised critical habitat units in Texas are within 
areas that we have determined were occupied at the time of listing, and 
that contain sufficient PCEs in the quantity and spatial arrangement to 
support life history functions essential for the conservation of the 
species where it winters. All units for which we are proposing to 
designate critical habitat have occurrence data that indicate a 
consistent use. That is, occupancy has been documented over more than 
one wintering season, which is the same criterion used in the original 
2001 designation. We used 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), refining the existing descriptions using our 
National Wetlands Inventory data, and mapping 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. However, as 
described in the Methods section, bollards are excluded, but are too 
small to be removed digitally from our maps. We have no information 
indicating that bollards negatively affect piping plovers. To further 
ensure that no manmade features are included in critical habitat, 
bollards are expressly excluded by text in the proposed rule and are 
not proposed for designation as critical habitat. 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 the Methods section above for additional discussion 
of mapping techniques.
    We did not consider for designation areas that do not contain one 
or more of the PCEs or areas that: (1) Are highly degraded and may not 
be restorable; and (2) are small, highly fragmented, or isolated and 
may provide little or no long-term conservation value. We included 
areas containing one or more PCEs where occurrence data exist and where 
the area: (1) Provides a patchwork of the features essential for the 
conservation of the species; (2) offers dispersal capabilities or are 
in proximity to other wintering piping plover occurrences that would 
allow for survival and recolonization following major natural 
disturbance events (e.g., hurricanes); (3) are of sufficient size to 
maintain the physical and biological features that support occurrences; 
and (4) are representative of the historic geographic distribution of 
occupied areas that will help prevent further range collapse of the 
species and will provide for the conservation of the species.
    Within the areas (TX-3, TX-4, TX-7, TX-8, TX-9, TX-10, TX-14, TX-
15, TX-16, TX-18, TX-19, TX-22, TX-23, TX-27, TX-28, TX-31, TX-32, and 
TX-33) vacated and remanded to the Service for reconsideration in Texas 
General Land Office v. U.S. Department of the Interior, et al., No. 06-
cv-00032 (S.D. Tex.), we had found no unoccupied areas that we 
considered essential to the conservation of the species. The 18 units 
in Texas we are considering for designation cover a small area relative 
to the total area used by wintering piping plovers along the coasts of 
the Gulf of Mexico, Atlantic Ocean and Caribbean islands. That total 
occupied wintering area is vast. In comparison, unoccupied areas along 
the Texas coast are relatively small. Thus, we do not consider 
unoccupied areas in Texas to be essential to the conservation of the 
species. Therefore, we propose no areas in Texas outside the 
geographical area occupied by the species at the time of listing. In 
vacated unit TX-17 the PCEs have been reduced to two small and disjunct 
fragments and it has not been observed to have been occupied since 
1997. Therefore, we do not consider it suitable now for critical 
habitat designation. When it was originally designated in 2001, it had 
been occupied at least 2 of the previous 10 years, and the PCEs covered 
a larger, less fragmented area. We are proposing to designate critical 
habitat on lands that we have determined were occupied at the time of 
listing, are currently occupied, and contain sufficient PCEs to support 
life history functions essential for the conservation of the species.

Summary of Changes From Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision of the areas we designated as critical habitat for the 
wintering population of the piping plover on July 10, 2001 (66 FR 
36038). The main differences include the following:
    (1) The 2001 final rule used a more generalized methodology for 
delineating critical habitat, which resulted in the inclusion of non-
PCEs within the 19 court-vacated critical habitat units for the 
wintering population of the piping plover in Texas. We based this 
proposed revised designation on a more specific methodology (see 
Methods section) that resulted in the proposal of 18 units, which are 
changed in size and configuration. It also resulted in the elimination 
of an additional unit (vacated unit TX-17). The boundaries of the 
proposed revised units exclude areas without PCEs. The exception is 
that we include areas with bollards, which are too small to detect at 
the mapping resolution we used (1:5,000), but which the text of the 
rule makes

[[Page 29300]]

clear are not part of the designation. Table 1 presents the size of the 
vacated and proposed units.

  Table 1.--Acres (ha) of Vacated and Proposed Revised Critical Habitat
    Units for the Wintering Population of the Piping Plover in Texas
------------------------------------------------------------------------
                                                    Acres (Hectares)
                     Unit                      -------------------------
                                                  Vacated      Proposed
------------------------------------------------------------------------
TX-03.........................................      168,725      107,673
                                                   (68,281)     (43,574)
TX-04.........................................       38,641       17,218
                                                   (15,638)      (6,969)
TX-07.........................................          208          295
                                                       (84)        (120)
TX-08.........................................          478          620
                                                      (194)        (251)
TX-09.........................................          447          171
                                                      (181)         (69)
TX-10.........................................          683          344
                                                      (276)        (139)
TX-14.........................................        1,103          590
                                                      (446)        (239)
TX-15.........................................        1,778          805
                                                      (719)        (325)
TX-16.........................................          927        1,376
                                                      (375)        (557)
TX-17.........................................          161          N/A
                                                       (65)
TX-18.........................................        8,423        2,467
                                                    (3,408)        (999)
TX-19.........................................        1,957        2,419
                                                      (792)        (979)
TX-22.........................................        1,823          545
                                                      (738)        (221)
TX-23.........................................        1,537        1,808
                                                      (622)        (732)
TX-27.........................................        1,464          906
                                                      (593)        (367)
TX-28.........................................          648          478
                                                      (262)        (193)
TX-31.........................................          849          399
                                                      (344)        (161)
TX-32.........................................          658          555
                                                      (266)        (225)
TX-33.........................................          770          212
                                                      (312)         (86)
                                               -------------------------
    Total.....................................      231,280      138,881
                                                   (93,596)     (56,206)
------------------------------------------------------------------------

    By eliminating areas without PCEs we decreased the overall area and 
increased the area of ``islands'' of non-PCEs surrounded by proposed 
units for the following proposed units: TX-04, TX-09, TX-15, TX-18, TX-
22, TX-27, TX-28, TX-31, TX-32, and TX-33. The overall area of proposed 
units TX-07, TX-08, TX-16, TX-19, and TX-23 increased from that 
originally designated in 2001 because, in addition to eliminating non-
PCEs, we expanded boundaries to capture entire polygons of PCEs. Those 
polygons appeared in recent aerial photographs (see Methods section) to 
have shifted since the original designation in 2001 due to storm 
events.
    (2) The area in unit TX-3 has been reduced to 68 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038), primarily due to a decrease in the size of subunit TX-3C. 
Approximately the northern one-third of what was originally designated 
no longer contains PCEs or the PCEs that remain have been reduced in 
size and are fragmented and disjunct from the large polygon that was 
originally designated. Based on our review of recent aerial 
photographs, we believe that the PCEs became lost or fragmented as a 
result of storm events.
    (3) The area in unit TX 0910 has been reduced to 50 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038), primarily due to a decrease in the size of subunit TX 0910 
C. Using revised mapping methodology (see Methods section), we expanded 
the boundaries of TX 0910C to include all PCEs surrounding a large 
lagoon. The entire polygon of each PCE was included within the boundary 
of the subunit unless we encountered a road. When that occurred, the 
boundary of the unit was the edge of the road. The lagoon itself does 
not contain PCEs and is not included within the boundaries of subunit 
TX 0910 C, although a large portion of it had been included in the 
original 2001 designation.
    (4) The area in unit TX 0914 has been reduced to 54 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038). Approximately the western half of what was originally 
designated no longer contains PCEs or the PCEs that remain have been 
reduced in size and are fragmented and disjunct from the large polygon 
that was originally designated and remains in the eastern portion. We 
expanded the original northern and eastern boundary to capture complete 
polygons of PCEs that, based on our review of recent aerial 
photographs, appear to have shifted.
    (5) The court-vacated unit TX 0917 is an island. When it was 
designated in 2001, it was relatively small (Table 1). When we 
eliminated the non-PCEs in evaluating whether a proposed revised 
designation was appropriate, only two polygons, each less than 4 ac 
(1.6 ha) and separated by 0.8 mi (1.3 km), remained. In addition, we 
had no records of recent occupancy by wintering piping plovers. 
Therefore, we concluded that it was no longer essential to the 
conservation of the species.

Proposed Revised Critical Habitat Designation

    We are proposing 18 units as revised critical habitat in Texas for 
the wintering population of the piping plover. The critical habitat 
units we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for wintering piping 
plovers. We have retained the same unit and subunit numbers that were 
vacated by the court. Units that were not vacated and remain critical 
habitat are not described, and vacated unit TX 0917 is not described 
because. we are not proposing that it be designated. Table 2 shows the 
occupancy, ownership, and approximate size of the proposed revised 
units.

 Table 2.--Occupancy and Threats to the Proposed Revised Critical Habitat Units for the Wintering Population of
                                           the Piping Plover in Texas
----------------------------------------------------------------------------------------------------------------
                                       Occupied at time of                            Threats requiring special
                Unit                         listing?         Currently occupied?     management or protections
----------------------------------------------------------------------------------------------------------------
Subunit TX-3A: South Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Gulf of Mexico Shoreline.                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
Subunit TX-3B: South Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Interior.                                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-3C: North Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Interior.                                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-3D: North Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Gulf of Mexico.                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.

[[Page 29301]]

 
Subunit TX-3E: Mesquite Rincon......  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-4. Lower Laguna Madre Mainland...  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-7. Newport Pass/Corpus Christi     Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-8. Mustang Island Beach..........  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-9. Fish Pass Lagoons.............  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-10A: Shamrock Island.....  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-10B: Mustang Island--      Yes..................  Yes..................  Human, vehicle and domestic
 Unnamed sand flat.                                                                  animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and
                                                                                     rehabilitation.
Subunit TX-10C: Mustang Island--      Yes..................  Yes..................  Human, vehicle and domestic
 Lagoon Complex.                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and stabilization.
TX-14. East Flats...................  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-15. North Pass...................  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and restoration.
TX-16. San Jose Beach...............  Yes..................  Yes..................  Domestic animal disturbance,
                                                                                     predation, pedestrian
                                                                                     recreational access.
TX-18. Cedar Bayou/Vinson Slough....  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-19. Matagorda Island Beach.......  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-22. Decros Point.................  Yes..................  Yes..................  Domestic animal disturbance,
                                                                                     predation; pedestrian
                                                                                     recreational use., sea
                                                                                     turtle monitoring efforts.
TX-23. West Matagorda Peninsula       Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-27. East Matagorda Bay/Matagorda   Yes..................  Yes..................  Human, vehicle and domestic
 Peninsula Beach West.                                                               animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-28. East Matagorda Bay/Matagorda   Yes..................  Yes..................  Human, vehicle and domestic
 Peninsula Beach East.                                                               animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-31. San Bernard NWR Beach........  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-32. Gulf Beach Between Brazos and  Yes..................  Yes..................  Domestic animal disturbance,
 San Bernard Rivers.                                                                 predation, pedestrian
                                                                                     recreational access.
TX-33. Bryan Beach and Adjacent       Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
----------------------------------------------------------------------------------------------------------------

    The 24 areas we propose as revised critical habitat are: (1) 
Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline, (2) 
Subunit TX-3B: South Padre Island--Interior, (3) Subunit TX-3C: North 
Padre Island--Interior, (4) Subunit TX-3D: North Padre Island--Gulf of 
Mexico, (5) Subunit TX-3E: Mesquite Rincon, (6) Unit TX-4: Lower Laguna 
Madre Mainland, (7) Unit TX-7: Newport Pass/Corpus Christi Pass Beach, 
(8) Unit TX-8: Mustang Island Beach, (9) Unit TX-9: Fish Pass Lagoons, 
(10) Subunit TX-10A: Shamrock Island, (11), Subunit TX-10B: Mustang 
Island--Unnamed sand flat, (12) Subunit TX-10C: Mustang Island--Lagoon 
Complex, (13) Unit TX-14: East Flats, (14) Unit TX-15: North Pass, (15) 
Unit TX-16: San Jose Beach, (16) Unit TX-18: Cedar Bayou/Vinson Slough, 
(17) Unit TX-19: Matagorda Island Beach, (18) Unit TX-22: Decros Point, 
(19) Unit TX-23: West Matagorda Peninsula Beach, (20) Unit TX-27: East 
Matagorda Bay/Matagorda Peninsula Beach West, (21) Unit TX-28: East 
Matagorda Bay/Matagorda Peninsula Beach East, (22) Unit TX-31: San 
Bernard NWR Beach, (23) Unit TX-32: Gulf Beach Between Brazos and San 
Bernard Rivers, and (24) Unit TX-33: Bryan Beach and Adjacent Beach.
    The approximate area encompassed within each critical habitat unit 
by ownership is shown in Table 3.

 Table 3.--Ownership and Size of Proposed Revised Critical Habitat for the Wintering Population of Piping Plover
                                                    in Texas
----------------------------------------------------------------------------------------------------------------
                                                   Size of            Land ownership in acres (hectares)
                                                   unit in   ---------------------------------------------------
                      Unit                          acres
                                                  (hectares)    Federal       State        County      Private
----------------------------------------------------------------------------------------------------------------
Subunit, TX-3A: South Padre Island--Gulf of            2,888    728 (295)    287 (116)      28 (11)  1,845 (747)
 Mexico Shoreline..............................      (1,169)
Subunit, TX-3B: South Padre Island--Interior...       44,083       18,778       16,583  ...........        8,722
                                                    (17,840)      (7,599)      (6,711)                   (3,530)

[[Page 29302]]

 
Subunit, TX-3C: North Padre Island--Interior...       50,855  ...........       46,027  ...........        4,828
                                                    (20,580)                  (18,626)                   (1,954)
Subunit, TX-3D: North Padre Island--Gulf of        269 (109)  ...........     212 (86)  ...........      57 (23)
 Mexico........................................
Subunit, TX-3E: Mesquite Rincon................        9,578  ...........    398 (161)  ...........        9,180
                                                     (3,876)                                             (3,715)
TX-4. Lower Laguna Madre Mainland..............       17,218        6,300        8,576  ...........  2,342 (948)
                                                     (6,969)      (2,550)      (3,471)
TX-7. Newport Pass/Corpus Christi Beach........    295 (120)  ...........     143 (58)  ...........     152 (62)
TX-8. Mustang Island Beach.....................    620 (251)  ...........    367 (149)        5 (2)    248 (100)
TX-9. Fish Pass Lagoons........................     171 (69)  ...........     169 (68)  ...........      2 (0.8)
Subunit TX-10A: Shamrock Island................       12 (5)  ...........        8 (3)  ...........      4 (1.6)
Subunit TX-10B: Mustang Island--Unnamed sand           3 (1)  ...........        3 (1)  ...........  ...........
 flat..........................................
Subunit TX-10C: Mustang Island--Lagoon Complex.    329 (133)  ...........     237 (96)  ...........      92 (37)
TX-14. East Flats..............................    590 (239)  ...........       12 (5)  ...........    578 (234)
TX-15. North Pass..............................    805 (325)  ...........     154 (62)  ...........    651 (263)
TX-16. San Jose Beach..........................  1,376 (557)       15 (6)    691 (280)  ...........    670 (271)
TX-18. Cedar Bayou/Vinson Slough...............  2,467 (999)     115 (47)      2 (0.8)  ...........  2,350 (951)
TX-19. Matagorda Island Beach..................  2,419 (979)  2,135 (864)    284 (115)  ...........  ...........
TX-22. Decros Point............................    545 (221)  ...........    325 (132)  ...........     220 (89)
TX-23. West Matagorda Peninsula Beach..........  1,808 (732)  ...........    877 (355)  ...........    931 (377)
TX-27. East Matagorda Bay/Matagorda Peninsula      906 (367)  ...........    481 (195)  ...........    425 (172)
 Beach West....................................
TX-28. East Matagorda Bay/Matagorda Peninsula      478 (193)  ...........     146 (59)  ...........    332 (134)
 Beach East....................................
TX-31. San Bernard NWR Beach...................    399 (161)     119 (48)     193 (78)  ...........      87 (35)
TX-32. Gulf Beach Between Brazos and San           555 (225)  ...........    555 (225)  ...........  ...........
 Bernard Rivers................................
TX-33. Bryan Beach and Adjacent Beach..........     212 (86)  ...........     212 (86)  ...........  ...........
                                                ----------------------------------------------------------------
    Total......................................      138,881       28,190       76,942      33 (13)       33,716
                                                    (56,206)     (11,409)     (31,139)                  (13,645)
----------------------------------------------------------------------------------------------------------------

    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. Description information is summarized in 
Tables 1 and 2.

Unit TX-3: Padre Island

    Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline. This 
subunit consists of 2,888 ac (1169 ha) in Cameron and Willacy Counties 
Texas. It is a beach 30.0 mi (48.2 km) in length on the gulfside of 
South Padre Island, which is a barrier island. The subunit is located 
within an area bounded on the south by the southern boundary of Andy 
Bowie County Park, and on the north by the south jetty of Mansfield 
Channel, which divides North and South Padre Islands. The jetty itself 
is outside the boundary of the subunit. The eastern boundary is the 
estimated MLLW of the Gulf of Mexico (see the Methods section for our 
derivation of MLLW), and the western boundary is the dune line where 
the habitat changes from lightly vegetated, sandy beach to densely 
vegetated dunes. This subunit does not include bollards within the 
critical habitat designation, although they may be present within the 
described area because they are too small to be detected with the 
mapping methodology used.
    Approximately one quarter of the subunit is in Federal ownership 
and managed by the Service's Laguna Atascosa NWR, and approximately 64 
percent is in private ownership. Ten percent is State land managed by 
the GLO, and a small portion at the southern end is County park land 
managed by Andy Bowie County Park (Table 3).
    Subunit TX-3A is the southernmost unit of the proposed revised 
critical habitat for the wintering population of the piping plover. It 
was occupied at the time of listing and is currently occupied (Table 
2). Occupancy has been confirmed by species experts at least 2 years 
out of the last 10 years. Habitat in this subunit contains features in 
the appropriate spatial arrangement that are essential to the 
conservation of the wintering population of the piping plover, 
including sand flats with little or no emergent vegetation (PCE 1), 
surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely 
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and 
sheltering and for feeding.
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access and beach cleaning and nourishment 
efforts. These threats are of greatest magnitude at the southern end of 
the subunit where housing developments are to the west of the subunit. 
Laguna Atascosa NWR is preparing a Comprehensive Conservation Plan 
(CCP) that will address the wintering population of the piping plover 
as well as other listed species. We are considering the possible 
exclusion of NWR land in subunit TX-3A from the final critical habitat 
designation based on benefits provided to wintering piping plover 
habitat under the CCP, a draft of which is being prepared and which 
will be released shortly for public comment (see the Areas Considered 
for Exclusion Under Section 4(b)(2) of the Act section for further 
discussion). At this time, we are not aware of any additional 
management plans that address this species in this area.
    Subunit TX-3B: South Padre Island--Laguna Madre side. This bayside 
subunit consists of 44,083 ac (17,840 ha) in Cameron and Willacy 
Counties, Texas. Its southern boundary extends from the Gulf of Mexico 
south of the

[[Page 29303]]

Laguna Madre west along latitude 26[deg]09'19.00'' N, paralleling the 
existing anthropogenic (manmade) dike, to the edge of the intertidal 
mudflats bordering the eastern shore of the lower Laguna Madre. The 
dike is not within the boundary of the subunit. The northern boundary 
is the channel at Mansfield Channel. The eastern boundary is dense 
vegetation or, if there is no dense vegetation or dune, the boundary of 
subunit 3A. The western boundary is the western edge of the intertidal 
mudflats bordering the eastern shore of the lower Laguna Madre.
    Approximately 42 percent of the land is Federally owned and managed 
by the Service's Laguna Atascosa NWR, and approximately 38 percent is 
State-owned and managed by the GLO (Table 3). The remainder is in 
private ownership.
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand and mud flats with no or 
very sparse emergent vegetation for feeding (PCE 1), unvegetated or 
sparsely vegetated sand and mud flats above high tide for roosting (PCE 
2), and sand spits running into the Laguna for foraging and roosting 
(PCE 5). This subunit also includes unvegetated washover areas with 
little or no topographic relief for feeding and roosting (PCE 7).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access. These threats, particularly vehicle 
access, are of greatest magnitude at the southern portion of the 
subunit where roads are near or adjacent to PCE 1. At this time, we are 
not aware of any management plans that address this species in this 
area.
    Subunit TX-3C: North Padre Island--Laguna Madre side. This bayside 
unit consists of 50,855 ac (20,580 ha) in Kenedy and Kleberg Counties, 
Texas. It is along and within the Laguna Madre and extends from the 
western boundary of Padre Island National Seashore (PAIS) to the Gulf 
Intracoastal Waterway (GIWW). The northern boundary of the subunit is a 
line extending westward from the PAIS (at latitude 27[deg] 4' 29.9'' 
N), and its southern boundary is a line extending westward from the 
southern boundary of PAIS along the northern edge of the Mansfield 
Channel. The eastern boundary of this subunit is the western boundary 
of PAIS when the PCEs extend as far as PAIS or the eastern edge of the 
sand flats where the PCEs end. The portion of the western boundary 
north of longitude/latitude coordinate 26[deg]48'38.2'' N, 
97[deg]28'11.6'' W is the eastern edge of the GIWW, and the portion of 
the western boundary south of the coordinate is the western edge of the 
intertidal mudflats bordering the eastern shore of the Laguna Madre. 
Most of the land is State-owned and managed by the GLO. A small portion 
is in private ownership (Table 3).
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand and mud flats with sparse 
emergent vegetation for feeding (PCE 1), unvegetated or sparsely 
vegetated sand, or mud flats above high tide for roosting (PCE 2), and 
sand spits running into the Laguna for foraging and roosting (PCE 5). 
This subunit also includes unvegetated washover areas with little or no 
topographic relief for feeding and roosting (PCE 7). This subunit also 
contains sparse vegetation and little or no topographic relief mimicked 
in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE 
8).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access. However, the location of the subunit 
and the lack of roads near it tend to limit access to the PCEs for 
recreational use, particularly PCEs 1 and 2. At the north end, dredge 
disposal may threaten plover habitat. At this time we are not aware of 
any management plans that address this species in this area.
    Subunit TX-3D: North Padre Island--Gulf of Mexico. This gulfside 
subunit consists of 269 ac (109 ha) of beach in Kleberg County, Texas. 
It extends along the gulf shore of North Padre Island from the northern 
boundary of PAIS northward 6.2 mi (10 km) to the Nueces County line. 
The southern boundary is the north boundary of the northeast section of 
the PAIS. The subunit extends eastward to the MLLW of the Gulf of 
Mexico (see the Methods section for our derivation of MLLW), and the 
western boundary runs along the dune line where the habitat changes 
from lightly vegetated, sandy beach to densely vegetated dunes. This 
subunit does not include bollards within the critical habitat 
designation, although they may be present within the described area 
because they are too small to be detected with the mapping methodology 
used. Most of the land is owned by the State and managed by the GLO. 
Approximately one-fifth is in private ownership (Table 3).
    It was occupied at the time of listing and is currently occupied 
(Table 2). Occupancy has been confirmed by species experts at least 2 
years out of the last 10 years. Habitat in this subunit contains 
features in the appropriate spatial arrangement that are essential to 
the conservation of the wintering population of the piping plover 
including sand flats with little or no emergent vegetation (PCE 1) and 
surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely 
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and 
sheltering and for feeding.
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access and beach cleaning and nourishment 
efforts. These threats are of greater magnitude at the north end of the 
subunit where more roads provide easy access to the PCEs and the 
subunit is in close proximity to houses. At this time, we are not aware 
of any management plans that address this species in this area.
    Subunit TX-3E: North Padre Island--Mesquite Rincon. This triangular 
bayside subunit of 9,578 acres (3,876 hectares) lies on the western 
shore of the lower Laguna Madre in Kleberg County, Texas. The subunit 
is generally bounded by Rincon de la Soledad on the southwestern side, 
Mesquite Rincon on the north, and the GIWW and Rincon de San Jose on 
the east. The southwestern boundary is an irregular line along the PCEs 
between the latitude/longitude coordinate points: 26[deg]44'10.5'' N, 
97[deg] 28' 04.5'' W at the southeastern point of Rincon de San Jose 
and 26[deg]50'58.1'' N, 97[deg]34'19.5'' W. The northern boundary is 
the line described between the latitude/longitude coordinate points: 
26[deg]51'24.2'' N, 97[deg]33'25.8'' W and 26[deg]51'24.2'' N, 
97[deg]27'52.7'' W. The northern portion of the eastern boundary is the 
western edge of the GIWW south to latitude/longitude coordinate point 
26[deg]48'52.7'' N,

[[Page 29304]]

97[deg]28'12.9'' W. There the subunit curves westward and skirts a 
small horseshoe-shaped inlet in the Laguna Madre to the northeastern 
point of Rincon de San Jose at latitude/longitude coordinate point 
26[deg]48'43.9'' N, 97[deg]29'4.7'' W. There it continues south in an 
irregular line along the edge of the PCEs to the southeastern point of 
Rincon San Jose. The southeastern portion of the triangle is a patchy 
mosaic of polygons that are not within the boundaries of the subunit 
because they do not contain the PCEs. They appear as islands surrounded 
by the subunit. Most of the land is in private ownership with a small 
portion that is State-owned and managed by the GLO (Table 3).
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand and mud flats with no or 
very sparse emergent vegetation for feeding (PCE 1), unvegetated or 
sparsely vegetated sand, or mud flats above high tide for roosting (PCE 
2), and sand spits running into the Laguna for foraging and roosting 
(PCE 5). This subunit also includes unvegetated washover areas with 
little or no topographic relief for feeding and roosting (PCE 7). This 
subunit also contains sparse vegetation and little or no topographic 
relief mimicked in artificial habitat types (e.g., dredge spoil sites) 
for feeding (PCE 7).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access. However, the location of the subunit 
and the lack of roads near it tend to limit access to the PCEs for 
recreational use, particularly PCEs 1 and 2. At this time, we are not 
aware of any management plans that address this species in this area.

Unit TX-4: Lower Laguna Madre Mainland

    This bayside unit consists of 17,218 ac (6,969 ha) in Cameron and 
Willacy Counties, Texas and lies along the western shoreline of the 
Lower Laguna Madre. The southern boundary is an east-west line at the 
northern tip of Barclay Island, approximately following latitude 
26[deg]14'42.2'' N. The northern boundary is an east-west line located 
near the northern tip of El Sauz Island, approximately 1.2 mi (1.9 km) 
south of the center of the city of Port Mansfield, Willacy County, 
Texas, and approximately following latitude 26[deg]32'7.8'' N. The 
eastern boundary of the unit is the eastern edge of the line of dredge 
spoils that parallel the western side of the GIWW. The western boundary 
runs from southeast to northwest and is the western edge of sandy beach 
and mudflat habitat, approximately following the latitude/longitude 
coordinate points: latitude/longitude coordinate points: 
26[deg]14'42.45'' N, 97[deg]19'32.75'' W; 26[deg]17'15.54'' N, 
97[deg]20'47.31'' W; 26[deg]20'10.17'' N, 97[deg]21'10.94'' W; 
26[deg]21'31.54'' N, 97[deg]22'48.10'' W; 26[deg]24'26.64'' N, 
97[deg]23'53.27'' W; 26[deg]26'8.55'' N, 97[deg]25'13.33'' W; and 
26[deg]32'5.44'' N, 97[deg]27'6.91'' W.
    Approximately one-third of this unit is within the Service's Laguna 
Atascosa NWR. Approximately half is State-owned and managed by the GLO. 
The remainder is in private ownership (Table 3).
    This unit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This unit contains PCEs in the 
appropriate spatial arrangement essential to the conservation of the 
piping plover including intertidal sand and mud flats with no or very 
sparse emergent vegetation for feeding (PCE 1) and unvegetated or 
sparsely vegetated sand or mud flats above high tide for roosting (PCE 
2). This unit also includes unvegetated washover areas with little or 
no topographic relief for feeding and roosting (PCE 7). This unit also 
contains sparse vegetation and little or no topographic relief mimicked 
in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE 
8).
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. However, recreational access is limited due to a lack of roads, 
particularly for access to PCEs 1 and 2. The refuge is preparing a CCP 
that will address piping plover and other listed species. We are 
considering the possible exclusion of NWR land in unit TX-4 from the 
final critical habitat designation based on benefits provided to 
wintering piping plover habitat under the CCP, a draft of which is 
being prepared and which will be released shortly for public comment 
(see the Areas Considered for Exclusion Under Section 4(b)(2) of the 
Act section for further discussion). At this time, we are not aware of 
any additional management plans that address this species in this area.

Unit TX-7: Newport Pass/Corpus Christi Pass Beach

    This unit consists of 295 ac (120 ha) in Nueces County, Texas. It 
is a gulfside beach unit approximately 5.1 mi (8.2 km) long. The 
southern boundary is the gulfward extension of Saint Bartholomew 
Avenue, adjacent to the north end of the seawall. The northern boundary 
is the edge of the south jetty of the Fish Pass Structure at Mustang 
Island State Park. The eastern boundary is MLLW of the Gulf of Mexico 
(see the Methods section for our derivation of MLLW), and the western 
boundary runs along the dune line where the habitat changes from 
lightly vegetated, sandy beach to densely vegetated dune. Packery 
Channel cuts the beach approximately 0.3 mi (0.5 km) north of the south 
boundary. The seawall, jetty, bollards, and open water of Packery 
Channel are not within the boundaries of the unit. This unit is in 
State and private ownership (Table 3); the State portion is managed by 
the Mustang Island State Park.
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains PCEs in the appropriate spatial arrangement that are 
essential to the conservation of the wintering population of the piping 
plover including sand flats with little or no emergent vegetation (PCE 
1) and surf-cast algae (PCE 3) for feeding, unvegetated or sparsely 
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and 
sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access and beach cleaning and nourishment efforts. Due to its close 
proximity to Corpus Christi, this unit receives considerable 
recreational use and beach cleaning and nourishment. At this time, we 
are not aware of any management plans that address this species in this 
area.

Unit TX-8: Mustang Island Beach

    This unit consists of 620 ac (251 ha) in Nueces County, Texas. It 
is a gulfside beach unit approximately 12.5 mi (20.1

[[Page 29305]]

km) long. The southern boundary is the edge of the north jetty of the 
Fish Pass Structure at Mustang Island State Park. The northern boundary 
is the south side of the Horace Calder Pier in Port Aransas, Texas. The 
unit is bounded on the east by the MLLW of the Gulf of Mexico (see the 
Methods section for our derivation of MLLW) and on the west by the dune 
line where the habitat changes from lightly vegetated sandy beach to 
densely vegetated. The jetty and pier are not within the boundary of 
the unit. This unit does not include bollards within the critical 
habitat designation, although they may be present within the described 
area because they are too small to be detected with the mapping 
methodology used. The unit is in State and private ownership with a 
small municipal park owned and managed by the City of Port Aransas 
(Table 3). The State land is managed by the GLO.
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access and beach cleaning and nourishment efforts. Due to its close 
proximity to Corpus Christi, this unit receives considerable 
recreational use and beach cleaning and nourishment. At this time, we 
are not aware of any management plans that address this species in this 
area.

Unit TX-9: Fish Pass Lagoons

    This bayside unit consists of 171 ac (69 ha) in Nueces County, 
Texas. This unit encompasses flats facing Corpus Christi Bay that 
extend 1.0 km (0.6 mi) on either side of Fish Pass. The inland boundary 
is a line of dense vegetation, and the bayside boundary is the 
northeast edge of the tidal sand flats that are a PCE. This unit 
includes all areas of habitat that contain PCEs 1, 2, 5, and 6 within 
the area described by a polygon with the following latitude/longitude 
coordinate points: 27[deg]42'14.63'' N, 97[deg]10'44.70'' W; 
27[deg]41'56.97'' N, 97[deg]10'8.13'' W; 27[deg]41'24.35'' N, 
97[deg]10'36.89'' W; 27[deg]41'18.98'' N, 97[deg]11'16.79'' W; 
27[deg]41'23.51'' N, 97[deg]11'31.32'' W and 27[deg]42'14.63'' N, 
97[deg]10'44.70'' W. Within that polygon, six moderate to large 
polygons from 5 to 64 ac (2 to 25 ha) each and two small polygons less 
than 1 ac (0.4 ha) each are PCEs and comprise the unit. Most of the 
unit is owned by the State and managed by the GLO (Table 3). A few 
acres are in private ownership.
    This unit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This unit contains PCEs in the 
appropriate spatial arrangement essential to the conservation of the 
piping plover including intertidal sand and/or mud flats with no or 
very sparse emergent vegetation for feeding (PCE 1), unvegetated or 
sparsely vegetated sand, or mud flats above high tide for roosting (PCE 
2), and sand spits running into the bay for foraging and roosting (PCE 
5). This unit also includes unvegetated washover areas with little or 
no topographic relief for feeding and roosting (PCE 7).
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. However, recreational access is limited by a lack of road 
access, particularly to PCEs 1 and 2. At this time, we are not aware of 
any management plans that address this species in this area.

Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats

    Subunit TX-10A: Shamrock Island. This 12 ac (5 ha) island in Nueces 
County, Texas, was a peninsula extending off of Mustang Island in 
Corpus Christi Bay until erosion separated the island from the 
mainland. Five small polygons of sand flats from 1.1 to 6.8 ac (0.4 to 
2.7 ha) comprise the subunit. Most of the land is State-owned and 
managed by the GLO; the remainder is privately owned (Table 3).
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand flats with no or very 
sparse emergent vegetation for feeding (PCE 1) and unvegetated or 
sparsely vegetated sand flats above high tide for roosting (PCE 2).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access. However, a lack of road access limits 
recreational use and vehicle use. At this time, we are not aware of any 
management plans that address this species in this area.
    Subunit TX-10B: Mustang Island: Unnamed sand flat. This 3 ac (1 ha) 
subunit in Nueces County, Texas, is a small, unnamed sand flat near the 
north edge of the mouth of Wilson's Cut in Corpus Christi Bay. The 
subunit is the western half of the island that is sand flats landward 
(easterly) to the western edge of tidal marsh. It is entirely State-
owned (Table 3) and managed by the GLO.
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand flats with no or very 
sparse emergent vegetation for feeding (PCE 1) and unvegetated or 
sparsely vegetated sand flats above high tide for roosting (PCE 2), and 
sand spits running into the bay for foraging and roosting (PCE 5).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access and beach cleaning and restoration 
efforts. However, the location of the subunit and the configuration of 
the polygons of PCEs that comprise this subunit, limit recreational 
access, particularly by vehicles, to PCEs 1 and 2. At this time, we are 
not aware of any management plans that address this species in this 
area.
    Subunit TX-10C: Mustang Island: Lagoon Complex. This 329 ac (133 
ha) subunit in Nueces County, Texas, is an extensive lagoon complex 
that consists of 11 polygons within a larger polygon that extends 2.2 
miles (3.5 kilometers) south of Wilson's Cut in Corpus Christi Bay. The 
southern boundary of the larger polygon begins at the western end

[[Page 29306]]

at latitude/longitude coordinate point 27[deg]43'2,4[sec] N, 
97[deg]10[min] 19.4[sec] W at the dune line where the habitat changes 
from lightly vegetated, sandy beach to densely vegetated dunes. It 
follows the dune line southeast approximately 830 ft (253 m) to a road, 
then follows the road approximately 945 ft (288 m) to the edge of the 
tidal sand flat PCE. It follows the southeastern edge of the sand flat 
northeast to the western edge of a north-south road, where it follows 
the edge of the sand flat northward to the south edge of a road that 
runs east-west parallel to the southwestern edge of Wilson's Cut. The 
northern edge of the boundary is the south edge of the road or the 
northern extent of the sand flat when it does not reach the road. The 
western boundary follows the PCEs along their eastern edge at Corpus 
Christi Bay beginning 409 ft (125 m) southwest of the southwestern edge 
of Wilson's Cut to the coordinate point at the western edge of the 
southern boundary. A road transects the larger polygon described above 
forming two polygons that exclude the road. The PCEs within the two 
polygons comprise the subunit. The subunit consists of private and 
State-owned lands (Table 3).
    This subunit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This subunit contains PCEs in 
the appropriate spatial arrangement essential to the conservation of 
the piping plover including intertidal sand flats with no or very 
sparse emergent vegetation for feeding (PCE 1) and unvegetated or 
sparsely vegetated sand flats above high tide for roosting (PCE 2).
    The PCEs in this subunit may require special management 
considerations or protections to ameliorate the threats of disturbance 
of foraging and roosting plovers by humans, vehicles, and domestic 
animals; predation; and modification and loss of habitat due to 
uncontrolled recreational access and beach cleaning and stabilization 
efforts. Road access to the PCEs is extensive. At this time, we are not 
aware of any management plans that address this species in this area.

Unit TX-14: East Flats

    This bayside unit consists of 590 ac (239 ha) in Nueces County, 
Texas. It is an irregularly shaped intertidal sand flat south of the 
Corpus Christi Ship Channel. The north boundary is the northern edge of 
the sand flat near or adjacent to dredge spoil areas bordering the 
south side of the Corpus Christi Ship Channel. The northwestern 
latitude/longitude coordinate is 27[deg]49'54.49'' N, 97[deg]6'14.28'' 
W, and the northeastern latitude/longitude coordinate is 
27[deg]49'55.29'' N, 97[deg]5'12.86'' W. From there, the sand flat 
curves southward, and the southeastern edge of it forms a highly 
irregular line that ends in the southwest portion of the polygon at the 
eastern edge of a navigation channel from the Corpus Christi Ship 
Channel to Corpus Christi Bay at latitude/longitude coordinate 51.93'' 
N, 97[deg]5'52.58'' W. The sand flat continues on the western edge of 
the navigation channel in a northwesterly direction to latitude/
longitude coordinate 27[deg]49'22.08'' N, 97[deg]6'37.04'' W. It then 
curves northeasterly and across the cut to the northern edge at the 
northwest coordinate. On the east, it abuts the City of Port Aransas. 
There is a small marshland within the sand flat that bisects the sand 
flat that is not a PCE and is not included in the unit. The unit is 
mostly in private ownership with a small portion of State land managed 
by the GLO (Table 3).
    This unit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This unit contains PCEs in the 
appropriate spatial arrangement essential to the conservation of the 
piping plover, including intertidal sand and mud flats with no or very 
sparse emergent vegetation for feeding (PCE 1) and unvegetated or 
sparsely vegetated sand flats above high tide for roosting (PCE 2).
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. However, this unit does not attract heavy recreational use. At 
this time, we are not aware of any management plans that address this 
species in this area.

Unit TX-15: North Pass

    This bayside unit consists of 805 ac (325 ha) in Aransas County, 
Texas. The unit is bounded on the northeast by a line between latitude/
longitude coordinates 27[deg]54'8.70'' N, 97[deg]0'36.97'' W and 
27[deg]54'54.53'' N, 97[deg]1'18.17'' W, on the northwest and west by 
the edge of tidal sand flats in Aransas Bay, on the south by a line 
running east from coordinate 27[deg]53'16.96'' N, 97[deg]2'22.44'' W to 
unit TX-16, and on the southeast by the landward boundary of unit 16. 
The unit is all areas that contain the PCEs for the species within a 
larger area described by a polygon with the following sets of latitude/
longitude coordinate points: 27[deg]54'8.70'' N, 97[deg]0'36.97'' W; 
27[deg]53'10.68'' N, 97[deg]1'21.36'' W; 27[deg]53'16.96'' N, 
97[deg]2'22.44'' W; 27[deg]53'33.08'' N, 97[deg]2'33.05'' W; 
27[deg]54'42.68'' N, 97[deg]2'4.83'' W; 27[deg]54'47.59'' N, 
97[deg]1'51.73'' W; 27[deg]54'54.53'' N, 97[deg]1'18.17'' W and 
27[deg]54'8.70'' N, 97[deg]0'36.97'' W. This unit is a remnant of a 
hurricane washover on San Jose Island. Approximately 18 percent is 
State-owned and managed by the GLO; the remainder is in private 
ownership (Table 3).
    This unit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This unit contains PCEs in the 
appropriate spatial arrangement essential to the conservation of the 
piping plover including intertidal sand flats with no or very sparse 
emergent vegetation for feeding (PCE 1) and unvegetated or sparsely 
vegetated sand flats above high tide for roosting (PCE 2). This subunit 
also includes unvegetated washover areas with little or no topographic 
relief for feeding and roosting (PCE 7).
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation 
by raptors and wild mammals; and pedestrian recreational access. At 
this time, we are not aware of any management plans that address this 
species in this area.

Unit TX-16: San Jose Beach

    This unit consists of 1,376 ac (557 ha) in Aransas County, Texas. 
It is a gulfside beach unit approximately 19.8 mi (31.9 km) long. The 
southern boundary is the edge of the north jetty of Aransas Pass. The 
jetty is not within the boundary of the unit. The south edge of Cedar 
Bayou Pass is the northern boundary. The eastern boundary is the MLLW 
of the Gulf of Mexico (see the Methods section for our derivation of 
MLLW), and the western boundary runs along the dune line where the 
habitat changes from lightly vegetated, sandy beach to densely 
vegetated dunes. This unit does not include bollards within the 
critical habitat designation, although they may be present within the 
described area because they are too small to be detected with the 
mapping methodology used. A small section is in Federal ownership and 
managed by the Service's Matagorda Island NWR. Approximately half of 
the unit is State-owned and managed by the GLO, and

[[Page 29307]]

nearly as much is in private ownership (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by domestic animals, predation by raptors and wild 
mammals, and pedestrian recreational access. The refuge is preparing a 
CCP that will address the wintering population of the piping plover as 
well as other listed species. We are considering the possible exclusion 
of NWR land in unit TX-16 from the final critical habitat designation 
based on benefits provided to wintering piping plover habitat under the 
CCP, a draft of which is being draft and will be released shortly for 
public comment (see the Areas Considered for Exclusion Under Section 
4(b)(2) of the Act section for further discussion). At this time, we 
are not aware of any management plans that address this species in this 
area.

Unit TX-18: Cedar Bayou/Vinson Slough

    This bayside unit consists of 2467 ac (999 ha) in Aransas County, 
Texas. It is a remnant of a hurricane washover area and includes the 
highly dynamic area of Cedar Bayou, the pass that separates San Jose 
Island and Matagorda Island. Beginning at the confluence of Vinson 
Slough and Cedar Bayou, the boundary follows the shore of Spalding Cove 
to Long Reef, then continues along a line extending 2.5 miles southwest 
of Long Reef to the shore of San Jose Island, then along the shore of 
the island to the landward boundary of unit TX-16. Within that area, 
the unit consists of numerous polygons of PCEs; non-PCE polygons within 
the described area are not within the boundaries of the unit. The 
southern and southeastern boundary is described by a line with the 
following sets of latitude/longitude coordinate points: 
28[deg]1'21.76'' N, 96[deg]57'51.24'' W; 28[deg]1'12.77'' N, 
96[deg]57'31.18'' W; 28[deg]2'3.07'' N, 96[deg]56'45.84'' W; 
28[deg]2'15.92'' N, 96[deg]56'25.10'' W; 28[deg]2'30.32'' N, 
96[deg]56'11.97'' W; 28[deg]3'15.62'' N, 96[deg]54'20.01'' W; 
28[deg]3'58.58'' N, 96[deg]53'24.65'' W; 28[deg]4'1.15'' N, 
96[deg]52'14.65'' W; 28[deg]3'31.74'' N, 96[deg]51'38.29'' W and 
28[deg]3'17.69'' N, 96[deg]51'38.47'' W. The specific northern boundary 
is described by a line with the following sets of latitude/longitude 
coordinate points: 28[deg]5'44.24'' N, 96[deg]54'8.16'' W; 
28[deg]5'13.23'' N, 96[deg]52'44.85'' W; 28[deg]4'33.99'' N, 
96[deg]50'46.55'' W; 28[deg]4'38.92'' N, 96[deg]50'40.79'' W and 
28[deg]4'22.98'' N, 96[deg]50'22.94'' W. The eastern boundary at the 
northeastern end of the unit is units TX-16 and TX-19 on the gulfside. 
The western boundary is the western edge of tidal sand flats in Aransas 
Bay.
    This area includes a small section of Federally owned land managed 
by the Service's Matagorda Island NWR and a small section of State-
owned land. The remaining area is privately owned (Table 3).
    This unit was occupied at the time of listing and is currently 
occupied (Table 2). Occupancy has been confirmed by species experts at 
least 2 years out of the last 10 years. This unit contains PCEs in the 
appropriate spatial arrangement essential to the conservation of the 
piping plover including intertidal sand flats with no or very sparse 
emergent vegetation for feeding (PCE 1), unvegetated or sparsely 
vegetated sand flats above high tide for roosting (PCE 2), and sand 
spits running into the bay for foraging and roosting (PCE 5). This unit 
also includes unvegetated washover areas with little or no topographic 
relief for feeding and roosting (PCE 7).
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. Vehicle use of the unit may be limited somewhat by 
accessibility. The refuge is preparing a CCP that will address the 
wintering population of the piping plover as well as other listed 
species. We are considering the possible exclusion of NWR land in unit 
TX-18 from the final critical habitat designation based on benefits 
provided to wintering piping plover habitat under the CCP, a draft of 
which is being draft and will be released shortly for public comment 
(see the Areas Considered for Exclusion Under Section 4(b)(2) of the 
Act section for further discussion). At this time, we are not aware of 
any additional management plans that address this species in this area.

Unit TX-19: Matagorda Island Beach

    This unit consists of 2,419 ac (979 ha) in Calhoun County, Texas. 
It is a gulfside beach unit approximately 37.1 mi (59.7 km) long. The 
southern boundary is the northern edge of Cedar Bayou Pass, and the 
northern boundary is the southern edge of Pass Cavallo. At Pass 
Cavallo, the unit curves from the eastern gulfside passing between the 
south edge of the pass and the north edge of the dunes to a small area 
on the bayside. The eastern boundary is the MLLW of the Gulf of Mexico 
(see the Methods section for our derivation of MLLW) and the western 
boundary runs along the dune line where the habitat changes from 
lightly vegetated, sandy beach to densely vegetated dunes. This unit 
does not include bollards within the critical habitat designation, 
although they may be present within the described area because they are 
too small to be detected with the mapping methodology used. The 
Federally owned land in this unit is managed by the Service's Matagorda 
Island NWR (Table 3). This unit also includes a small section of land 
in State ownership.
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by domestic animals, predation by raptors and wild 
mammals, pedestrian recreational access, and access by refuge staff and 
others for sea turtle monitoring efforts. The refuge is preparing a CCP 
that will address the wintering population of the piping plover as well 
as other listed species. We are considering the possible exclusion of 
NWR land in unit TX-19 from the final critical habitat designation 
based on benefits provided to wintering piping plover habitat under the 
CCP, a draft of which is being prepared and which will be released

[[Page 29308]]

shortly for public comment (see the Areas Considered for Exclusion 
Under Section 4(b)(2) of the Act section for further discussion). At 
this time, we are not aware of any additional management plans that 
address this species in this area.

Unit TX-22: Decros Point

    This unit consists of 545 ac (221 ha) at the Matagorda/Calhoun 
County line, Texas. It is a gulfside beach unit approximately 4.8 mi 
(7.7 km) long. This unit was originally the southern tip of the 
Matagorda Peninsula. It was made into an island by the dredging of the 
Matagorda Ship Channel, the edge of which is the northern boundary of 
the unit. The unit is horseshoe in shape with the east side along the 
Gulf of Mexico and the west side along Matagorda Bay; the two are 
connected at their southern boundary by habitat from the north edge of 
Pass Cavallo northward to the dune line. Densely vegetated sand dunes 
run north to south in the center of the horseshoe and are not within 
the boundary of the critical habitat because they are not a PCE. The 
eastern boundary is the MLLW of the Gulf of Mexico (see the Methods 
section for our derivation of MLLW), and the western boundary is the 
western edge of tidal sand flats on the east side of Matagorda Bay. 
This unit does not include bollards within the critical habitat 
designation, although they may be present within the described area 
because they are too small to be detected with the mapping methodology 
used. Approximately 60 percent of the unit is in State ownership 
managed by the GLO. The remainder is privately owned (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach (PCE 4) for roosting 
and feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. Due to a lack of road access, this unit does not receive much 
recreational vehicle use. At this time, we are not aware of any 
management plans that address this species in this area.

Unit TX-23: West Matagorda Peninsula Beach

    This unit consists of 1,808 ac (732 ha) of shoreline in Matagorda 
County, Texas. It is a gulfside beach unit approximately 23.9 mi (38.5 
km) long. The southern boundary is the northern jetty of the Matagorda 
Ship Channel. The northern boundary is the Old Colorado River channel. 
The MLLW of the Gulf of Mexico (see the Methods section for our 
derivation of MLLW) is the eastern boundary, and the western boundary 
runs along the dune line where the habitat changes from lightly 
vegetated, sandy beach to densely vegetated dunes. This unit does not 
include bollards within the critical habitat designation, although they 
may be present within the described area because they are too small to 
be detected with the mapping methodology used. Just under half of the 
unit is State-owned and managed by the GLO; the remainder is privately 
owned (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. At this time, we are not aware of any management plans that 
address this species in this area.

Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West

    This unit consists of 906 ac (367 ha) of shoreline in Matagorda 
County, Texas. It is a gulfside beach unit approximately 14.1 mi (22.8 
km) long. The southwestern boundary is the northeastern edge of the Old 
Colorado River channel. The unit runs along the beach 14 mi (23 km) to 
the northeastern boundary opposite Eidelbach Flats described by a line 
between the latitude/longitude coordinate points: 28[deg]41'2.26'' N, 
95[deg]46'29.04'' W and 28[deg]41'6.74'' N, 95[deg]46'32.46'' W. The 
southeastern boundary is the MLLW of the Gulf of Mexico (see the 
Methods section for our derivation of MLLW). The northwestern boundary 
runs along the dune line where the habitat changes from lightly 
vegetated sandy beach to densely vegetated dunes. This unit does not 
include bollards within the critical habitat designation, although they 
may be present within the described area because they are too small to 
be detected with the mapping methodology used. Just over half of the 
unit is State-owned and managed by the GLO; the remainder is privately 
owned (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. At this time, we are not aware of any management plans that 
address this species in this area.

Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East

    This gulfside unit consists of 478 ac (193 ha) in Matagorda County, 
Texas. It extends along the Gulf beach southwest and northeast of Brown 
Cedar Cut. The cut is not within the boundary of the unit. This unit 
abuts with portions of the southeastern edges of units TX-29 and TX-30, 
which are on the East Matagorda Bay side. The southwestern boundary is 
approximately 4 mi (6.5 km) southwest of Brown Cedar Cut at a line 
described by the following sets of latitude/longitude coordinate 
points: 28[deg]43'11.91'' N, 95[deg]42'25.47'' W and 28[deg]43'17.09'' 
N, 95[deg]42'28.56'' W. The northeastern boundary is approximately 2.8 
mi (4.5 km) northeast of Brown Cedar Cut to the point where Texas

[[Page 29309]]

Farm to Market Road 457 intersects the beach. The southeastern boundary 
is the MLLW of the Gulf of Mexico (see the Methods section for our 
derivation of MLLW). The northwestern boundary runs along the dune line 
where the habitat changes from lightly vegetated, sandy beach to 
densely vegetated dunes. This unit does not include bollards within the 
critical habitat boundaries, although they may be present within the 
described area because they are too small to be detected with the 
mapping methodology used. Approximately one-third is in State ownership 
and managed by the GLO; the remaining two-thirds is privately owned 
(Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. At this time, we are not aware of any management plans that 
address this species in this area.

Unit TX-31: San Bernard NWR Beach

    This gulfside unit consists of 399 ac (161 ha) in Matagorda and 
Brazoria counties, Texas. It is a 6.2 mi (10 km) segment of beach on 
the Gulf of Mexico near the mouth of the San Bernard River. The 
northeastern boundary is at the southwestern edge of the mouth of the 
San Bernard River. The southwestern boundary follows a line described 
by the following sets of latitude/longitude coordinate points: 
28[deg]47'54.39'' N, 95[deg]33'26.21'' W, and 28[deg]47'57.69'' N, 
95[deg]33'27.75: W. The southeastern boundary is the MLLW of the Gulf 
of Mexico (see the Methods section for our derivation of MLLW). The 
northwestern boundary runs along the dune line where the habitat 
changes from lightly vegetated, sandy beach to densely vegetated dunes. 
There is a cut through the beach from the Gulf of Mexico to a lake 3.5 
mi (5.6 km) southwest of the San Bernard River, which is not within the 
unit. Bollards also are not within the critical habitat designation, 
although they may be present within the described area because they are 
too small to be detected with the mapping methodology used. 
Approximately 30 percent of this unit is in Federal ownership and 
managed by the Service's San Bernard NWR. Approximately 48 percent is 
State-owned and managed by the GLO with the remaining area in private 
ownership (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. The Federally owned portion has pedestrian recreational access, 
but no vehicle access. The refuge is preparing a CCP that will address 
the wintering population of the piping plover as well as other listed 
species. We are considering the possible exclusion of NWR land in unit 
TX-31 from the final critical habitat designation based on benefits 
provided to wintering piping plover habitat under the CCP, a draft of 
which is being prepared and which will be released shortly for public 
comment (see the Areas Considered for Exclusion Under Section 4(b)(2) 
of the Act section for further discussion). At this time, we are not 
aware of any additional management plans that address this species in 
this area.

Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers

    This gulfside unit consists of 555 ac (225 ha) of shoreline in 
Brazoria County, Texas. This unit is a 6.1 mi (9.8 km) segment of beach 
on the Gulf of Mexico between the mouths of the San Bernard and Brazos 
Rivers. The southwestern boundary is the northeastern edge of the mouth 
of the San Bernard River. The northeastern boundary is the western edge 
of the mouth of the Brazos River. The southeastern boundary is the MLLW 
of the Gulf of Mexico (see the Methods section for our derivation of 
MLLW). The northwestern boundary runs along the dune line where the 
habitat changes from lightly vegetated, sandy beach to densely 
vegetated dunes. This unit does not include bollards within the 
critical habitat designation, although they may be present within the 
described area because they are too small to be detected with the 
mapping methodology used. It is entirely in State ownership and managed 
by the GLO (Table 3).
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by domestic animals, predation by raptors and wild 
mammals, and pedestrian recreational access. At this time, we are not 
aware of any management plans that address this species in this area.

Unit TX-33: Bryan Beach and Adjacent Beach

    This unit consists of 212 ac (86 ha) in Brazoria County, Texas. It 
is gulfside beach approximately 3.5 mi (5.7 km) in length on the Gulf 
of Mexico near the mouth of the Brazos River. The southwestern boundary 
is the northeastern edge of the Brazos River. The northeastern boundary 
is Farm-to-Market Road 1495 (Bryan Beach Rd). The southeastern boundary 
is the MLLW (see the Methods section for our derivation of MLLW). The 
northwestern boundary follows along the dune line where the habitat 
changes from lightly vegetated, sandy beach to densely vegetated dunes. 
This unit does not include bollards within the critical habitat 
designation, although they may be present within the described area 
because they are too small to be detected with the mapping methodology 
used. The unit is entirely in State

[[Page 29310]]

ownership (Table 3) and managed by the Texas Department of Parks and 
Wildlife.
    The unit was occupied by piping plovers at the time of listing and 
is currently occupied (Table 2). Occupancy has been confirmed by 
species experts at least 2 years out of the last 10 years. Habitat in 
this unit contains features in the appropriate spatial arrangement that 
are essential to the conservation of the wintering population of the 
piping plover including sand flats with little or no emergent 
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and 
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4 
and 7) for roosting and sheltering and for feeding.
    The PCEs in this unit may require special management considerations 
or protections to ameliorate the threats of disturbance of foraging and 
roosting plovers by humans, vehicles, and domestic animals; predation; 
and modification and loss of habitat due to uncontrolled recreational 
access. At this time, we are not aware of any management plans that 
address this species in this area.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) 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. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service et 
al., 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and 
Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do 
not rely on this regulatory definition when analyzing whether an action 
is likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification 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 its intended conservation role for 
the species.
    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 the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our 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, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' 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,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the wintering population of the 
piping plover or its designated critical habitat will require 
consultation under section 7 of the Act. Activities on State, Tribal, 
local or private lands requiring a Federal permit (such as a permit 
from the U. S. Army Corps of Engineers under section 404 of the Clean 
Water Act (33 U.S.C. 1251 et seq.) or a permit from us under section 10 
of the Act) or involving some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency) are 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 Adverse Modification Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, would retain the current ability for 
the physical and biological features to be functionally established. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the physical and biological features to an extent that 
appreciably reduces the conservation value of critical habitat for the 
wintering piping plover. Generally, the conservation role of wintering 
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, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should 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.
    (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.

[[Page 29311]]

    (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, which 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.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat 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 he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless 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 legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give any factor.
    Under section 4(b)(2) of the Act, 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, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If based on 
this analysis, we make this determination, then we can exclude the area 
only if such exclusion would not result in the extinction of the 
species.

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

    Under section 4(b)(2) of the Act, we intend to consider the 
possible exclusion of Federally owned National Wildlife Refuge lands in 
units TX-3, TX-4, TX-16, TX-18, TX-19, and TX-31 from the final 
critical habitat designation, These lands are to be covered under CCPs 
that are currently being drafted. We will further consider the possible 
exclusion of the areas covered by the CCPs being drafted once the 
drafts are released and if they are released within a timeframe that is 
reasonable for us. We specifically solicit comments on the inclusion or 
exclusion of these areas.

Editorial Corrections

    We revised the entry in 50 CFR 17.95(b) in the following ways: In 
paragraph 1., we made minor revisions to our descriptions of the PCEs 
and reformatted the PCEs for clarity. In paragraph 2., we clarified 
what is not a PCE. In paragraph 3., we revised the methods used to map 
and designate critical habitat units for certain units in Texas, and we 
revised the critical habitat unit descriptions and maps for those 
units.

Economics

    We are preparing an analysis of the economic impacts of proposing 
revised critical habitat (Texas Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 
18, 19, 22, 23, 27, 28, 31, 32, and 33) for the wintering population of 
the piping plover. 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://www.regulations.gov, or by contacting the Corpus Christi 
Ecological Services Office directly (see FOR FURTHER INFORMATION 
CONTACT section). We may exclude areas from the final rule based on the 
information in the economic analysis.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we are requesting the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our proposed critical habitat designation is based on 
scientifically sound data, assumptions, and analyses. We have invited 
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 we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, our final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any request for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication. Send your request to the person named in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the first hearing.

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.

[[Page 29312]]

    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must 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. SBREFA amended 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.
    The economic analysis prepared for the July 10, 2001, critical 
habitat designation (66 FR 36038) identified six activities that may be 
affected by the designation of wintering critical habitat for the 
piping plover because they occur within or near critical habitat areas. 
These activities are: (1) Housing and commercial shoreline development; 
(2) dredging and disposal of dredged materials; (3) beach nourishment; 
(4) oil and gas exploration; (5) recreational visitation of shoreline; 
and (6) waterway operations. At this time, we lack the available 
economic information necessary to provide an adequate factual basis for 
the required RFA finding. Therefore, we defer the RFA finding until 
completion of the draft economic analysis prepared under section 
4(b)(2) of the Act and E.O. 12866. This draft economic analysis will 
provide the required factual basis for the RFA finding. Upon completion 
of the draft economic analysis, we will announce availability of the 
draft economic analysis of the proposed designation in the Federal 
Register and reopen the public comment period for the proposed 
designation. We will include with this announcement, 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. We have 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 we make a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This proposed amended 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, or 
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 [T]ribal 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 [T]ribal 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 [T]ribal 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 onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because the proposed units do not occur within 
the jurisdiction of small governments. The government-owned lands being 
proposed for critical habitat designation are owned by the County of 
Cameron, the State of Texas, and the U.S. Fish and Wildlife Service. 
None of these government entities fit the definition of a ``small 
governmental'' jurisdiction. Therefore, a Small Government Agency Plan 
is not required. However, we will further evaluate this issue as we 
conduct our economic analysis, and review and revise this assessment as 
warranted.

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the wintering population of the piping plover in Texas in a 
takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for the wintering 
population of the piping plover in Texas does not pose significant 
takings implications for lands within or affected by the proposed 
revised designation. However, we will further evaluate this issue as we 
conduct our economic analysis and review and revise this assessment as 
warranted.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not

[[Page 29313]]

required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in Texas. Some critical habitat is 
still designated in Texas for the piping plover. The designation of 
critical habitat on lands currently occupied by the wintering 
population of the piping plover imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because 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. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating 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

    This proposed rule does not contain any new collections of 
information that require approval by OMB under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). 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 is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) in connection with 
designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld by the 
Circuit Court of the United States for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)). However, the court ruling in Cape Hatteras Access 
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d 
108 (D.D.C. 2004)) ordered us to revise the critical habitat 
designation for wintering piping plovers in North Carolina and to 
prepare an environmental analysis. To comply with that court's order, 
we prepared an environmental assessment for that action pursuant to 
NEPA, and, as an exercise of our discretion, have chosen to prepare an 
environmental assessment for critical habitat designation for the 
wintering population of the piping plover in Texas. We will notify the 
public when it is drafted and available for comment.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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), E.O. 13175, and the Department of the 
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. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that there are no 
Tribal lands occupied at the time of listing with features essential 
for the conservation, and no Tribal lands that are essential for the 
conservation, of the wintering population of the piping plover in 
Texas. Therefore, we have not proposed designation of critical habitat 
for the wintering population of the piping plover on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate revised critical habitat for the 
wintering population of the piping plover in areas of Texas is not a 
significant regulatory action under Executive Order 12866, and we do 
not expect it 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. This action, however, may 
impact seismic studies for oil and gas drilling; we will further 
evaluate energy-related issues as we conduct our economic analysis, and 
review and revise this assessment as warranted.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov and upon 
request from the Field Supervisor, Corpus Christi Ecological Services 
Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary author of this package is the staff of the Corpus 
Christi Ecological Services Office.

[[Page 29314]]

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; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

    2. 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 paragraph 3., Texas, remove the words ``Texas (Maps were 
digitized using 1995 and 1996 DOQQs and National Oceanic and 
Atmospheric Administration's (NOAA) Medium Resolution Digital Vector 
Shoreline)'' and add in their place a new header, parenthetical text, 
and introductory text as set forth below;
    d. Remove the critical habitat description for Unit TX-3 and add in 
its place a new critical habitat description for Unit TX-3 as set forth 
below;
    e. Remove the critical habitat description for Unit TX-4 and add in 
its place a new critical habitat description for Unit TX-4 as set forth 
below;
    f. Remove the critical habitat description for Unit TX-7 and add in 
its place a new critical habitat description for Unit TX-7 as set forth 
below;
    g. Remove the critical habitat description for Unit TX-8 and add in 
its place a new critical habitat description for Unit TX-8 as set forth 
below;
    h. Remove the critical habitat description for Unit TX-9 and add in 
its place a new critical habitat description for Unit TX-9 as set forth 
below;
    i. Remove the critical habitat description for Unit TX-10 and add 
in its place a new critical habitat description for Unit TX-10 as set 
forth below;
    j. Remove the critical habitat description for Unit TX-14 and add 
in its place a new critical habitat description for Unit TX-14 as set 
forth below;
    k. Remove the critical habitat description for Unit TX-15 and add 
in its place a new critical habitat description for Unit TX-15 as set 
forth below;
    l. Remove the critical habitat description for Unit TX-16 and add 
in its place a new critical habitat description for Unit TX-16 as set 
forth below;
    m. Remove the critical habitat description for Unit TX-17;
    n. Remove the critical habitat description for Unit TX-18 and add 
in its place a new critical habitat description for Unit TX-18 as set 
forth below;
    o. Remove the critical habitat description for Unit TX-19 and add 
in its place a new critical habitat description for Unit TX-19 as set 
forth below;
    p. Remove the critical habitat description for Unit TX-22 and add 
in its place a new critical habitat description for Unit TX-22 as set 
forth below;
    q. Remove the critical habitat description for Unit TX-23 and add 
in its place a new critical habitat description for Unit TX-23 as set 
forth below;
    r. Remove the critical habitat description for Unit TX-27 and add 
in its place a new critical habitat description for Unit TX-27 as set 
forth below;
    s. Remove the critical habitat description for Unit TX-28 and add 
in its place a new critical habitat description for Unit TX-28 as set 
forth below;
    t. Remove the critical habitat description for Unit TX-31 and add 
in its place a new critical habitat description for Unit TX-31 as set 
forth below;
    u. Remove the critical habitat description for Unit TX-32 and add 
in its place a new critical habitat description for Unit TX-32 as set 
forth below;
    v. Remove the critical habitat description for Unit TX-33 and add 
in its place a new critical habitat description for Unit TX-33 as set 
forth below;
    w. Remove the map for ``Texas Units: 1, 2, 4 and southern 3'' and 
the map for ``Texas Units: 5 and northern 3'' and add in their place a 
new map ``Texas Units 1 to 5'' as set forth below;
    x. Remove the map for ``Texas Units: 6 to 14'' and add in its place 
two new maps ``Texas Units 6 to 10 and 14'' and ``Texas Units 11 to 
13'' as set forth below;
    y. Remove the map for ``Texas Units: 15 to 21'' and add in its 
place a new map ``Texas Units 15, 16 and 18 to 21'' as set forth below;
    z. Remove the map for ``Texas Units: 22, 23, 24, 25 and 26'' and 
add in its place a new map ``Texas Units 22 to 27'' as set forth below; 
and
    aa. Remove the map for ``Texas Units: 26, 27, 28, 29 and 30'' and 
the seventh map for ``Texas Units 31, 32, 33, and 34'' and add in their 
place a new map ``Texas Units 28 to 34'' 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 the wintering population of the piping plover 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:
    (i) Intertidal sand beaches (including sand flats) or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation for feeding. In some cases, these flats may be 
covered or partially covered by a mat of blue-green algae.
    (ii) Unvegetated or sparsely vegetated sand, mud, or algal flats 
above annual high tide for roosting. Such sites may have debris or 
detritus and may have micro-topographic relief (less than 20 in (50 cm) 
above substrate surface) offering refuge from high winds and cold 
weather.
    (iii) Surf-cast algae for feeding.
    (iv) Sparsely vegetated backbeach, which is the 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. Backbeach is used by plovers for roosting and 
refuge during storms.
    (v) Spits, especially sand, running into water for foraging and 
roosting.
    (vi) Salterns, or bare sand flats in the center of mangrove 
ecosystems that are found above mean high water and are only 
irregularly flushed with sea water.
    (vii) Unvegetated washover areas with little or no topographic 
relief for feeding and roosting. Washover areas are formed and 
maintained by the action of hurricanes, storm surges, or other extreme 
wave actions.
    (viii) Natural conditions of sparse vegetation and little or no 
topographic relief mimicked in artificial habitat types (e.g., dredge 
spoil sites).

[[Page 29315]]

    2. Critical habitat does not include manmade structures (such as 
bridges, jetties, buildings, roads, and other paved areas) or their 
ancillary facilities (such as lawns or other maintained landscaped 
areas) and the land on which they are located existing on the effective 
date of this rule.
    3. * * *
* * * * *
    Texas (Maps for units 1, 2, 5, 6, 11, 12, 13, 20, 21, 24, 25, 26, 
29, 30, 34, 35, 36, and 37 were digitized using 1995 and 1996 DOQQs and 
National Oceanic and Atmospheric Administration's (NOAA) Medium 
Resolution Digital Vector Shoreline. Data layers defining map units 3, 
4, 7, 8, 9, 10, 14, 15, 16, 18, 19, 22, 23, 27, 28, 31, 32, and 33 were 
created for bayside areas using data on known piping plover wintering 
locations, 1992 National Wetlands Inventory (NWI) data (except for Unit 
TX-22 which had 2001 data available) fitted to 2005 National 
Agriculture Imagery Program (NAIP) aerial photographs, and regional 
shoreline-defining electronic files.) The primary constituent elements 
for the piping plover are closely associated with the following NWI 
classifications: M2USN (marine (gulfside) sandy coastline (beach), 
regularly inundated by tides), M2USP (marine (gulfside) sandy coastline 
(beach), irregularly inundated by tides), E2AB1N (estuarine (bayside) 
algal mud or sand flats, regularly inundated by tides), E2AB1P 
(estuarine (bayside) algal mud or sand flats, irregularly inundated by 
tides), E2AB3M (estuarine (bayside) grass flats of mud or sand, 
irregularly inundated by tides), E2USM (estuarine (bayside) sandy shore 
(beach/sandbar), rarely exposed by tidal fluctuation), E2USN (estuarine 
(bayside) sandy shore (beach/sandbar), regularly inundated by tides), 
E2USP (estuarine (bayside) sandy shore (beach/sandbar), irregularly 
inundated by tides), L1UBKhs (impounded, artificially flooded open 
water dredge spoil pit, greater than 20 ac (8 ha), L2USKhs (impounded, 
artificially flooded sandy bottom dredge spoil pit, greater than 20 ac 
(8 ha)). To map the gulfside, 2005 NAIP imagery was used as a base and 
heads up digitizing of vegetation and water lines at a scale of 1:5,000 
was used to produce polygons of critical habitat. Mean lower low 
waterline (MLLW) vector data from the National Oceanic and Atmospheric 
Administration (NOAA) was averaged with 2005 NAIP aerial photographs to 
correct misalignments. Measurements were taken every 100 meters along 
Unit TX-3 to determine an average distance between the 2005 NAIP 
waterline and the NOAA MLLW line. This 184 ft (56 m) average distance 
was then used to get an estimated MLLW line that was applied in all 
coastal areas.
* * * * *
    Unit TX-3: Padre Island. This unit consists of five subunits:
    (1) Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline.
    (2) Subunit TX-3B: South Padre Island--Laguna Madre side.
    (3) Subunit TX-3C: North Padre Island--Laguna Madre side.
    (4) Subunit TX-3D: North Padre Island--Gulf of Mexico.
    (5) Subunit TX-3E: North Padre Island--Mesquite Rincon.
    Unit TX-4: Lower Laguna Madre Mainland.
* * * * *
    Unit TX-7: Newport Pass/Corpus Christi Pass Beach.
    Unit TX-8: Mustang Island Beach.
    Unit TX-9: Fish Pass Lagoons.
    Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats. This 
unit consists of three subunits:
    (1) Subunit TX-10A: Shamrock Island.
    (2) Subunit TX-10B: Mustang Island: Unnamed sand flat.
    (3) Subunit TX-10C: Mustang Island: Lagoon Complex.
* * * * *
    Unit TX-14: East Flats.
    Unit TX-15: North Pass.
    Unit TX-16: San Jose Beach.
    Unit TX-18: Cedar Bayou/Vinson Slough.
    Unit TX-19: Matagorda Island Beach.
* * * * *
    Unit TX-22: Decros Point.
    Unit TX-23: West Matagorda Peninsula Beach.
* * * * *
    Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West.
    Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East.
* * * * *
    Unit TX-31: San Bernard NWR Beach.
    Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers.
    Unit TX-33: Bryan Beach and Adjacent Beach.
* * * * *
BILLING CODE 4310-55-P

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* * * * *

    Dated: May 8, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-10742 Filed 5-19-08; 8:45 am]
BILLING CODE 4310-55-C