41812 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

1. The primary constituent elements

essential for the conservation of wintering

piping plovers are those habitat components

that support foraging, roosting, and sheltering

and the physical features necessary for

maintaining the natural processes that

support these habitat components. The

primary constituent elements include

intertidal beaches and flats (between annual

low tide and annual high tide) and associated

dune systems and flats above annual high

tide. Important components of intertidal flats

include sand and/or mud flats with no or

very sparse emergent vegetation. In some

cases, these flats may be covered or partially

covered by a mat of blue-green algae.

Adjacent non-or sparsely vegetated sand,

mud, or algal flats above high tide are also

important, especially for roosting piping

plovers, and are primary constituent

elements of piping plover wintering habitat.

Such sites may have debris, detritus

(decaying organic matter), or microtopographic relief (less than 50 cm above

substrate surface) offering refuge from high

winds and cold weather. Important

components of the beach/dune ecosystem

include surf-cast algae, sparsely vegetated

backbeach (beach area above mean high tide

seaward of the permanent dune line, or in

cases where no dunes exist, seaward of a

delineating feature such as a vegetation line,

structure, or road), spits, and washover areas.

Washover areas are broad, unvegetated zones,

with little or no topographic relief, that are

formed and maintained by the action of

hurricanes, storm surge, or other extreme

wave action.

2. Critical habitat does not include existing

developed sites consisting of buildings,

marinas, paved areas, boat ramps, and similar

structures.

* * * * *

Dated: June 28, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–16816 Filed 6–30–00; 9:00 am]

BILLING CODE 4310–55–C

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG14

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for the Great Lakes

Breeding Population of the Piping

Plover

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service, propose to designate

37 units along the Great Lakes shoreline

of Minnesota, Wisconsin, Michigan,

Illinois, Indiana, Ohio, Pennsylvania,

and New York as critical habitat under

the Endangered Species Act of 1973, as

amended, for the Great Lakes breeding

population of the piping plover

(Charadrius melodus). We propose to

designate critical habitat on fewer than

305 km (189 mi) in 27 counties within

these States. Within these areas, only

the specific locations that have or could

develop the physical and biological

features required by piping plovers

(primary constituent elements) would

be considered critical habitat.

The primary constituent elements for

the piping plover are those habitat

components that are essential for

foraging, sheltering, reproduction,

rearing of young, intra-specific

communication, roosting, nesting, and

dispersal.

This proposed rule, if made final,

would result in additional review

requirements under section 7 of the Act.

Federal agencies may not fund,

authorize, or carry out an action that

would destroy or adversely modify

critical habitat. Section 4 of the Act

requires us to consider economic and

other impacts of specifying any

particular area as critical habitat. We

solicit data and comments from the

public on all aspects of this proposal,

including potential economic and other

impacts of the designation.

DATES: Comments: We will consider

comments received by September 5,

2000.

Public Hearings: We have scheduled

seven public hearings for this proposal.

See Hearings section for hearing dates

and addresses.

We will hold public informational

open houses at the same locations prior

to each public hearing. The

informational open houses will start at

6 pm. The public hearings will start at

7 pm and end at 9 pm.

ADDRESSES: Send written comments and

other materials concerning this proposal

to: Piping Plover Comments, U.S. Fish

and Wildlife Service, Bishop Henry

Whipple Federal Building, 1 Federal

Drive, Fort Snelling, MN 55111 or by email to

PIPINGPLOVERCOMMENT@FWS.GOV

or by facsimile to 612–713–5292.

The complete file for this proposed

rule, including comments and materials

received, as well as supporting

documentation used in the preparation

of this proposed rule, will be available

for public inspection, by appointment,

during normal business hours at the

above address and at the U.S. Fish and

Wildlife Service, East Lansing Field

Office, 2651 Coolidge Road, Suite 101,

East Lansing, MI 48823.

FOR FURTHER INFORMATION CONTACT:

Laura J. Ragan; (612) 713–5350.

SUPPLEMENTARY INFORMATION:

Background

The piping plover (Charadrius

melodus), named for its melodic mating

call, is a small, pale-colored North

American shorebird. It weighs 43–63

grams (1.5–2.5 ounces) and is 17–18

centimeters (cm) (6–7 inches (in.)) long

(Haig 1992). Its light, sand-colored

plumage blends in well with its primary

sandy beach habitat. Plumage and leg

color help distinguish this bird from

other plover species. During the

breeding season, the legs are bright

orange, and the short, stout bill is

orange with a black tip. There are two

single dark bands, one around the neck

and one across the forehead between the

eyes. The female’s neck band is often

incomplete and is usually thinner than

the male’s (Haig 1992). In winter, the

bill turns black, the legs fade to pale

orange, and the black plumage band on

the head and neck is lost. Chicks have

speckled gray, buff, and brown down,

black beaks, pale orange legs, and a

white collar around the neck. Juveniles

resemble wintering adults and obtain

their adult plumage the spring after they

fledge (Service 1994).

The breeding range of the piping

plover extends throughout the northern

Great Plains, the Great Lakes, and the

Atlantic Coast in the United States and

Canada. Based on this distribution,

three breeding populations of piping

plovers have been described: the

Northern Great Plains population, the

Great Lakes population, and the Atlantic

Coast population.

The northern Great Plains breeding

range includes southern Alberta,

northern Saskatchewan, and southern

Manitoba; south to eastern Montana, the

Dakotas, southeastern Colorado, Iowa,

Minnesota, and Nebraska; and east to

Lake of the Woods in north-central

Minnesota. The majority of the United

States pairs are in the Dakotas,

Nebraska, and Montana (Service 1994).

Occasionally, Great Plains birds nest in

Oklahoma and Kansas. On the Atlantic

coast, piping plovers breed from

Newfoundland, southeastern Quebec,

and New Brunswick to North Carolina,

with 68 percent of all the nesting pairs

breeding in Massachusetts, New York,

New Jersey, and Virginia (Service 1999).

In the Great Lakes watershed, piping

plovers formerly nested throughout

much of the region in the north-central

United States and south-central Canada,

but are currently limited to northern

Michigan and one site in northern

Wisconsin. Piping plovers nest on

shoreline and island sandy beaches with

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41813

sparse vegetation and the presence of

small stones (greater than 1 cm (0.4 in.))

called cobble. Their nests are concealed

by the cobble and are, therefore, very

difficult to see. Piping plovers spend

approximately 3–4 months a year on the

breeding grounds. Nesting in the Great

Lakes region begins in early to mid-May.

Plovers lay 3–4 eggs in a small

depression they scrape in the sand

among the cobblestones, and both sexes

incubate the eggs for about 28 days.

Young plovers can walk almost as soon

as they hatch, but remain vulnerable to

predation and disturbance for another

21–30 days until they are able to fly.

Nesting piping plovers are highly

susceptible to disturbance by people

and pets on the beach. Human

disturbance disrupts adult birds’ care of

their nests and young and may inhibit

incubation of eggs. Furthermore, adults

may leave the nest to lure away an

intruder, leaving the eggs or chicks

vulnerable to predators and exposure to

weather. Also, disturbance may lead to

the abandonment of nests. As a result of

this disturbance and other natural and

human-caused factors such as high

water levels, flooding, eroding beaches,

and beach-front commercial and

recreational development, reproduction

of Great Lakes piping plovers has been

severely affected, resulting in perilously

low numbers of nesting plovers (Service

1994).

Piping plovers are migratory birds.

They leave the breeding grounds

between late July and early September

and head for their wintering grounds,

where they spend more than 8 months

of the year. Although the breeding

ranges of the three piping plover

populations are separate, their wintering

ranges overlap and extend along the

Atlantic and Gulf Coasts from southern

North Carolina to Mexico and into the

West Indies and Bahamas. Resightings

of color-banded birds from the Great

Lakes breeding population have

occurred along the coastlines of North

and South Carolina, Georgia, Florida,

Louisiana, and Texas.

Historically, the Great Lakes breeding

population of the piping plover nested

on beaches in Illinois, Indiana,

Michigan, Minnesota, Ohio,

Pennsylvania, New York, and

Wisconsin, and in Ontario, Canada.

Although piping plovers were never

abundant, prior to European settlement,

populations in the Great Lakes were

estimated at 492–682 breeding pairs

(Russell 1983).

In recent decades, piping plover

populations have declined drastically,

especially in the Great Lakes. In the

early 1900s, uncontrolled hunting

throughout their range drove them

nearly to extinction. Protective

legislation helped them to recover by

1925, and populations reached a 20th

Century high in the 1930s (Service

1994). These numbers soon plummeted,

though, as recreational and commercial

use of beaches increased. Piping plover

numbers continued to decline in the

1940s and 1950s as shoreline

development expanded, resulting in the

loss of their breeding habitat.

In 1973, the piping plover was placed

on the National Audubon Society’s Blue

List of threatened species. By that time,

piping plovers had been extirpated from

shoreline beaches in Illinois, Indiana,

Ohio, New York, Pennsylvania, and

Ontario, and only a few birds were

continuing to nest in Wisconsin

(Russell, 1983). By 1979, the Great Lakes

breeding population had decreased to

38 pairs. At the time the species was

listed under the Endangered Species Act

in 1985, the Great Lakes breeding

population numbered only 17 breeding

pairs, and the breeding areas had been

reduced from sites in eight States to

northern Michigan.

In recent years, the Great Lakes

breeding population has gradually

increased and expanded south and west

within the Great Lakes watershed. In

1999, 32 pairs of piping plovers nested

on the Great Lakes shoreline within the

United States, but only one of these

pairs was outside of northern Michigan

(Stucker and Cuthbert, unpublished

data). This population increase is being

aided by intense State, tribal, Federal,

and private conservation actions

directed at the protection of the piping

plover. Activities such as habitat

surveys, beach restoration, public

education, habitat protection and

enhancement, and the protection of

nests from predators and disturbance

through the use of predator exclosure

fencing have all contributed to the

improving status of the Great Lakes

piping plover. This proposal applies

only to the breeding range of the Great

Lakes population in the United States.

Previous Federal Actions

On December 30, 1982, we published

a notice of review in the Federal

Register (47 FR 58454) that identified

vertebrate animal taxa being considered

for addition to the List of Threatened

and Endangered Wildlife. The notice

included the piping plover as a Category

2 Candidate species, indicating that we

believed the species might warrant

listing as threatened or endangered, but

that we had insufficient data to support

a proposal to list at that time.

Subsequent review of additional data

indicated that the piping plover

warranted listing, and in November,

1984, we published a proposal in the

Federal Register (49 FR 44712) to list

the piping plover as endangered in the

Great Lakes watershed and as

threatened along the Atlantic Coast, the

Northern Great Plains, and elsewhere in

their range. The proposed listing was

based on the decline of the species and

the existing threats, including habitat

destruction, disturbance by humans and

pets, high levels of predation, and

contaminants. On December 11, 1985,

we published the final rule (50 FR

50726), listing the piping plover as

endangered in the Great Lakes

watershed (Illinois, Indiana, Michigan,

northeastern Minnesota, New York,

Ohio, Pennsylvania, Wisconsin, and

Ontario) and as threatened along the

Atlantic coast (Quebec, Newfoundland,

Maritime Provinces, and States from

Maine to Florida), in the Northern Great

Plains region (Iowa, northwestern

Minnesota, Montana, Nebraska, North

Dakota, South Dakota, Alberta,

Manitoba, and Saskatchewan), and on

migratory routes and on their wintering

grounds. All piping plovers on

migratory routes outside of the Great

Lakes watershed or on their wintering

grounds are considered threatened. The

Service did not designate critical habitat

for the species at that time.

In 1986, we appointed two recovery

teams to develop recovery plans for the

Atlantic Coast and Great Lakes/Northern

Great Plains breeding populations. The

recovery plans that resulted from their

efforts were published in 1988 (Service

1988a, Service 1988b). In 1994, we

began to revise the plan for the Great

Lakes/Northern Great Plains

populations by developing and

distributing for public comment a draft

that included updated information on

the species. More recently, we decided

that the recovery of these two inland

populations would benefit from separate

recovery plans that would direct

separate recovery programs. Separate

recovery plans for the Great Lakes and

Northern Great Plains populations are

presently under development.

The final listing rule for the piping

plover indicated that designation of

critical habitat was not determinable.

Thus, designation was deferred. No

further action was subsequently taken to

designate critical habitat for piping

plovers. On December 4, 1996,

Defenders of Wildlife (Defenders) filed a

suit (Defenders of Wildlife and Piping

Plover v. Babbitt, Case No. 96CV02965)

against the Department of the Interior

and the Service over the lack of

designation of critical habitat for the

Great Lakes breeding population of the

piping plover. Defenders filed a similar

suit (Defenders of Wildlife and Piping

41814 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

Plover v. Babbitt, Case No. 97CV000777)

for the Northern Great Plains piping

plover population in 1997. During

November and December 1999 and

January 2000, we began negotiating a

schedule for piping plover critical

habitat decisions with Defenders. On

February 7, 2000, before the settlement

negotiations were concluded, the United

States District Court for the District of

Columbia issued an order directing us to

publish a proposed critical habitat

designation for nesting and wintering

areas of the Great Lakes breeding

population of the piping plover by June

30, 2000, and for nesting and wintering

areas of the Northern Great Plains

piping plover by May 31, 2001. A

subsequent order, after requesting the

court to reconsider its original order

relating to final critical habitat

designation, directs us to finalize the

critical habitat designations for the

Great Lakes population by April 30,

2001, and for the Northern Great Plains

population by March 15, 2002. For

biological and practical reasons, we

chose to propose critical habitat for the

Great Lakes breeding birds and for all

wintering birds in two separate rules to

be published concurrently.

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (i) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and, (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered or

threatened species to the point at which

listing under the Act is no longer

necessary. Thus, critical habitat areas

should provide sufficient habitat to

support the species at the population

level and geographic distribution that is

necessary for recovery. Proposed critical

habitat for the Great Lakes breeding

population of the piping plover includes

areas that currently support the species,

and also areas that are not currently

used by the species but that contain

habitat essential for the recovery of the

species.

Section 4(b)(2) of the Act requires that

we base critical habitat proposals upon

the best scientific and commercial data

available, after taking into consideration

the economic impact, and any other

relevant impact, of specifying any

particular area as critical habitat. We

may exclude areas from critical habitat

designation when we determine that

benefits of excluding those areas

outweigh the benefits of including them,

providing the exclusion would not

result in the extinction of the species.

Designation of critical habitat helps

focus conservation activities for a listed

species by identifying areas that contain

the physical and biological features that

are essential for the conservation of that

species. Designation of critical habitat

alerts the public, as well as landmanaging agencies, to the importance of

these areas.

Section 7 of the Act requires Federal

agencies to ensure, in consultation with

us, that any actions they authorize,

fund, or carry out do not adversely

modify or destroy critical habitat.

Section 7 also requires Federal agencies

to confer with us on actions that are

likely to result in the adverse

modification or destruction of proposed

critical habitat. Designation of critical

habitat affects actions on private lands

only when the actions are authorized,

funded, or carried out by a Federal

agency.

Designating critical habitat does not,

in itself, lead to recovery of a listed

species. Designation does not establish

a preserve area where human activities

are prohibited, create a management

plan, establish numerical population

goals, or prescribe specific management

practices (inside or outside of critical

habitat). Specific management

recommendations for areas designated

as critical habitat are most appropriately

addressed in the Recovery Plan, sitespecific management plans, through

section 7 consultation on Federal

activities, and section 10 incidental take

permits.

All of the proposed critical habitat

areas are considered essential to the

conservation of the Great Lakes breeding

population of the piping plover as

described in the approved 1988

Recovery Plan for the Great Lakes and

Northern Great Plains Piping Plover

(Plan) and the 1994 Recovery Plan for

the Great Lakes Piping Plover. The

proposed designation encompasses

those areas considered necessary to

achieve the recovery goals for this

population, and includes Great Lakes

shoreline and island beaches that

currently support piping plovers, that

historically supported and are still

capable of supporting piping plovers,

and areas that have the potential to

support piping plovers in the future.

Not all of the primary constituent

elements may be present in all of the

areas proposed for designation, but

given the dynamic character of

shoreline processes, areas currently

lacking some of the constituent

elements could develop them in the

future. Over a period of a few years,

these sites may be affected by changes

in local water levels, weather, and other

external forces, which may in turn

change the suitability of such sites for

piping plovers.

We considered, and are proposing, a

portion of the Bad River Indian

Reservation because we believe some

shoreline areas on Tribal lands may be

essential to the conservation of Great

Lakes piping plover. However, the short

amount of time provided under the

schedule dictated by the court to

propose critical habitat prevented us

from doing more than initiating

coordination with the Bad River Band of

the Lake Superior Tribe of the

Chippewa Indians. Subsequent to this

proposal, we will continue coordinating

with the Bad River Band before making

a final determination as to whether any

Tribal lands should be included as

critical habitat for the Great Lakes

piping plover. We will consider whether

these Tribal lands require special

management considerations or

protection; we may also exclude some

or all of these lands from critical habitat

upon a determination that the benefits

of excluding them outweigh the benefits

of designating these areas as critical

habitat, as provided under section

4(b)(2) of the Act. This consultation will

take place under the auspices of the

Secretarial Order 3206 and the

Presidential Memorandum of April 29,

1994, which require us to coordinate

with federally recognized Tribes on a

Government-to-Government basis.

Methods

In determining areas that are essential

to conserve the Great Lakes breeding

population of the piping plover, we

used the best scientific and commercial

data available. We solicited information

from knowledgeable biologists and

reviewed the available information

pertaining to habitat requirements of the

species. In an effort to map areas

essential to the conservation of the

species, we used data of known piping

plover breeding locations, records of

historical nesting sites, International

Census data, and those areas that were

identified in the 1988 recovery plan and

1999 draft recovery plan as essential for

the recovery of the species. We have

chosen the 37 critical habitat units in

order to protect adequate habitat to meet

the recovery criteria, contained in the

Plan and draft Plan, of 100 breeding

pairs in Michigan and 50 breeding pairs

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41815

in the other Great Lakes States

combined.

We did not map critical habitat in

sufficient detail to exclude all currently

developed sites consisting of buildings,

marinas, paved areas, boat ramps, and

similar structures. These areas do not

contain primary constituent elements

essential for piping plover conservation,

and are not critical habitat even though

they are within the mapped boundaries.

Designating specific locations for

critical habitat for the piping plovers is

difficult because the beach areas they

use are constantly changing due to

storm surges, flood events, and other

natural geo-physical alterations of

beaches and shorelines. Areas lakeward

of the beach and covered by water (e.g.,

lakes) will not contain one or more of

the primary constituent elements, and

are not critical habitat. Because of the

dynamics of beach areas, however, areas

now covered by water may in the future

become land, and will then under this

designation become critical habitat if

they fall within the mapped boundaries.

The critical habitat units are larger

complexes of habitat that contain areas

that currently have the primary

constituent elements necessary for

piping plovers and other areas that may

develop these primary constituent

elements. During section 7 consultation,

we will determine whether an action

may affect the primary constituent

elements or the ability of the areas to

develop them.

Primary Constituent Elements

In accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR

424.12, we are required to base critical

habitat determinations on the best

scientific and commercial data available

and to consider those physical and

biological features that are essential to

the conservation of the species and that

may require special management

considerations and protection. Such

requirements include but are not limited

to (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, and rearing of offspring;

and (5) habitats that are protected from

disturbance or are representative of the

historical geographical and ecological

distributions of a species.

The areas we are proposing for

designation as critical habitat provide

some or all of those habitat components

essential for the biological needs of the

piping plover or have the capacity to

develop these habitat components.

These components are also called

primary constituent elements.

The primary constituent elements for

the Great Lakes breeding population of

the piping plover are those habitat

components that are essential for the

biological needs of foraging, sheltering,

reproduction, rearing of young, intraspecific communication, roosting,

nesting, and dispersal. Proposed critical

habitat for the Great Lakes breeding

population of piping plovers includes

sites that: (1) Are currently or recently

(at least once during the past 5 years)

used for breeding, (2) were documented

to have been occupied historically and

still have most or all of the primary

constituent elements, or (3) are not

documented to have been occupied

historically but are deemed potential

breeding habitat because their

characteristics are suitable for breeding

by piping plovers.

The primary constituent elements

required to sustain the Great Lakes

breeding population of the piping

plover are found on Great Lakes islands

and mainland shorelines that support,

or have the potential to support, open,

sparsely vegetated sandy habitats—sand

spits or sand beaches associated with

wide, unforested systems of dunes and

inter-dune wetlands. In order for habitat

to be physically and biologically

suitable for piping plovers, it must have

a total shoreline length of at least 0.2 km

(0.12 mi) of gently sloping, sparsely

vegetated (less than 50 percent

herbaceous and low woody cover) sand

beach with a total beach area of at least

2 hectares (ha) (5 acres (ac)) and a low

level of disturbance from human

activities and from domestic animals.

These appropriately sized sites must

also have areas of at least 50–100 meters

(m) (165–330 feet (ft)) in length where

(1) the beach width is more than 7 m (23

ft), (2) there is protective cover for nests

and chicks, and (3) the distance to the

treeline (from the normal high water

line to where the forest begins) is more

than 50 m (165 ft). Beach width is

defined as the distance from the normal

high water line to the foredune (a low

barrier dune ridge immediately inland

from the beach) edge, or to the sand/

vegetation boundary in areas where the

foredune is absent. The beach width

may be narrower than 7 m (23 ft) if

appropriate sand and cobble areas at

least 7 m (23 ft) exist between the dune

and the treeline. Protective cover for

nests and chicks consists of small

patches of herbaceous vegetation, cobble

(stones larger than 1 cm (0.39 inches

(in)) diameter), gravel (stones smaller

than 1 cm (0.39 in) diameter), or debris

such as driftwood, wrack, root masses,

or dead shrubs.

Dominant plants within these areas

include marram grass (Ammophila

brevigulata), beach wormwood

(Artemesia campestris), silverweed

(Potentilla anserina), Lake Huron tansy

(Tanacetum huronense), pitcher’s

thistle (Cirsium pitcheri), beach pea

(Lathyrus maritimus var. glaber), sea

rocket (Cakile edentula), sedges (Carex

spp.), goldenrods (Solidago spp.), sand

cherry (Prunus pumila), bearberry

(Actostaphylus uva-ursi), creeping

juniper (Juniper horizontalis),

cottonwood (Populus deltoides), and

willow (Salix spp.).

Proposed Critical Habitat Designation

At this time, the proposed critical

habitat areas contained within the

critical habitat units discussed below

constitute our best evaluation of areas

needed for the conservation of the Great

Lakes breeding population of the piping

plover. Very little suitable piping plover

habitat remains in the Great Lakes

region. Therefore, areas that were

historically occupied by piping plover

and that still contain suitable habitat or

potentially could contain suitable

habitat, as well as areas that are not

known to have been historically

occupied but have potential piping

plover habitat, are necessary for the

recovery of the species. Proposed

critical habitat may be revised should

new information become available prior

to the final rule. Critical habitat

subsequently may be revised if new

information becomes available after the

final rule. Any subsequent areas of

critical habitat will be designated only

after a formal proposal and opportunity

for public comment.

The approximate length of proposed

critical habitat shoreline by land

ownership is shown in Table 1. Lands

proposed as critical habitat are under

private, Federal, State, municipal, and

tribal ownership. Estimates reflect the

total area within critical habitat unit

boundaries, without regard to the

presence of primary constituent

elements. The area actually proposed for

designation by this proposal is therefore

less than that indicated in Table 1.

41816 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

TABLE 1.—KILOMETERS OF GREAT LAKES SHORELINE PROPOSED AS CRITICAL HABITAT UNITS FOR THE PIPING PLOVER IN

EACH GREAT LAKES STATE SUMMARIZED BY FEDERAL, STATE, MUNICIPAL, PRIVATE AND OTHER OWNERSHIP

Ownership

km shoreline (percentage within each State)

Federal State Municipal Private Other Total

Michigan ................................................................. 36.6 (16.9) 103.6 (47.9) 6.1 (2.8) 64 (29.6) 6 TNC (2.8) 216.3

Minnesota ............................................................... 0 1.4 (50.0) 1.0 (35.7) 0.4 (14.3) 0 2.8

Wisconsin ............................................................... 11.0 (33.8) 11.0 (33.8) 5.5 (16.9) 0 5 tribal (15.4) 32.5

Illinois ..................................................................... 0 4.7 (46.3) 1.25 (12.3) 4.2 (41.3) 0 10.15

Indiana ................................................................... 5.5 (52.4) 5.0 (47.6) 0 0 0 10.5

Ohio ........................................................................ 0 2.0 (50) 0 2.0 (50) 0 4.0

Pennsylvania .......................................................... 0.4 (26.7) 1.1 (73.3) 0 0 0 1.5

New York ............................................................... 0 12.4 (45.3) 0 14.6 (53.3) 0.4 TNC (1.5) 27.4

Total (percentage of) ...................................... 53.5 (17.5) 141.2 (46.3) 13.85 (4.5) 85.2 (27.9) 11.4 (3.7) 305.1

There is no numerical estimate of the

extent of the piping plover’s historical

range in the Great Lakes, but Russell

(1983) indicates that several areas where

piping plovers once nested are no longer

suitable. Much historically occupied

habitat has been destroyed by activities

such as marina development,

construction of seawalls, and the

increased use of recreation areas.

Additionally, lake level fluctuations and

winter storms periodically alter the

quantity and quality of available

breeding habitat, making some areas no

longer suitable for nesting while

potentially creating new areas of

suitable habitat. Because of the loss of

historical habitat and the dynamic

nature of the Great Lakes shoreline,

some areas for which there are no

historical records of piping plovers but

which are potential nesting habitat are

being proposed for designation. Without

these potential habitat areas, there

would not be enough nesting habitat to

meet the recovery criteria outlined in

the Revised Recovery Plan for Piping

Plovers (1994).

Lands proposed as critical habitat

have been divided into 37 critical

habitat units that contain, or have the

potential to develop, areas with the

primary constituent elements for the

piping plover in the Great Lakes region.

All critical habitat unit boundaries

extend 1 km (0.62 miles) inland from

the normal high water line, although the

area that contains the primary

constituent elements may vary

depending on the extent of the open

dune system. This area is needed to

provide foraging habitat as well as

cobble pans between the dunes where

piping plovers occasionally nest. A brief

description of each critical habitat unit

for the piping plover is given below and

in Table 2.

TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN

MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION

Habitat

unit Location name County USGS 7.5′ quad map(s)1:24,000 scale Land ownership 1 Plover use 2

Est.

length

(km)

MI–1 Whitefish Point to Grand Marais

Whitefish Point ............... Chippewa .......... Whitefish Point (1951) .... Federal (Service), private Recent past,

transient.

2.5

Vermilion/Weatherhogs

Beach.

Luce .................. Vermilion (1951) ............. Private ............................ Current .............. 2.3

Crisp Point ...................... Luce .................. Betsy Lake North (1968) Municipal, private ........... Recent past ....... 1.0

Little Lake Harbor ........... Luce .................. Betsy Lake North (1968) Private ............................ Recent past ....... 1.6

Deer Park ....................... Luce .................. Muskallonge Lake East

(1968).

Muskallonge Lake West

(1968).

State, private .................. Recent past ....... 2.8

Grand Marais Inner Harbor and Lonesome

Point.

Alger .................. Grand Marais 1968 ........ Multiple private, municipal.Current .............. 2.9

Grand Marais Superior

Beach.

Alger .................. Grand Marais 1968 ........ Multiple private, Federal

(NPS).

Current .............. 1.2

MI–2 ....... Point Aux Chenes .......... Mackinac Pointe Aux Chenes

(1964, photorevised

1975).

Federal (USFS), private Current .............. 1.7

MI–3 ....... Port Inland ...................... Schoolcraft ........

Mackinac ...........

Hughes Point (1972) ...... Private/State ................... Current .............. 3.0

MI–4 Waugoshance Point to beach west of McCort Hill—

Waugoshance Point,

Temperance and

Crane Islands.

Emmet ............... Big Stone Bay (1964,

photoinspected 1975).

Waugoshance Island

(provisional 1982).

State ............................... Current .............. 5.0

Sturgeon Bay .................. Emmet ............... Bliss (1982) .................... State ............................... Current .............. 3.9

Bliss Township Park ....... Emmet ............... Bliss (1982) .................... Municipal ........................ Current .............. 1.1

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41817

TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN

MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION—Continued

Habitat

unit Location name County USGS 7.5′ quad map(s)1:24,000 scale Land ownership 1 Plover use 2

Est.

length

(km)

Sturgeon Bay Point ........ Emmet ............... Bliss (1982) ....................

Cross Village (1982)

Multiple private ............... Current .............. 2.4

Cross Village Beach ....... Emmet ............... Cross Village (1982) ....... Municipal, multiple private.Current .............. 1.3

beach west McCort Hill .. Emmet ............... Cross Village (1982) ....... Multiple private ............... Current .............. 1.4

MI–5 Sevenmile Point to Thorneswift Nature Preserve—

Sevenmile Point ............. Emmet ............... Forest Beach (1983 provisional).Multiple private ............... Potential ............ 0.5

Thorneswift Nature Preserve.Emmet ............... Forest Beach (1983 provisional).Multiple private ............... Current .............. 0.4

MI–6 Petoskey State Park ....... Emmet ............... Harbor Springs (1983

provisional).

State, private .................. Historical ........... 2.0

MI–7 North Point ..................... Charlevoix ......... Ironton (1983) .................

Charlevoix (1983)

Municipal ........................ Potential ............ 1.1

MI–8 Fisherman’s Island State

Park.

Charlevoix ......... Charlevoix (1983) ........... State ............................... Current .............. 1.3

MI–9 Indian Point to McCauley’s Point, Beaver Island—

Donegal Bay-Beaver Island.Charlevoix ......... Garden Island West

(1980).

Beaver Island North

(1986).

Multiple private ............... Current .............. 2.0

McCauley’s Point-Beaver

Island.

Charlevoix ......... Beaver Island North

(1986).

State ............................... Recent past ....... 0.6

MI–10 Greenes Bay-Beaver Island.Charlevoix ......... Beaver Island North

(1986).

State/private ................... Recent past ....... 0.8

MI–11 High Island ..................... Charlevoix ......... High Island (1986) .......... State ............................... Current .............. 1.8

MI–12 Cathead Bay to Christmas Cove—

Cathead Bay ................... Leelanau ........... Northport (provisional

1983).

State ............................... Current .............. 3.4

Cathead Point to Christmas Cove.Leelanau ........... Northport/Northport NW

(provisional 1983).

Private ............................ Potential ............ 2.5

MI–13 South Fox Island ............ Leelanau ........... South Fox Island (provisional 1986).State ............................... Historical ........... 1.0

MI–14 North Manitou ................. Leelanau ........... North Manitou Island

(provisional 1983).

Federal (NPS) ................ Current .............. 3.3

MI–15 Crystal Run to Empire

Beach.

Leelanau ........... Glen Arbor (1983) ..........

Glen Haven (1983) Empire (1983).

Municipal, Federal .......... Potential ............ 14.3

MI–16 Esch Road to Sutter Road and Point Betsie—

Platte Bay ....................... Benzie ............... Empire (1983) Beulah

(provisional 1983).

Federal (NPS) ................ Potential ............ 7.0

Platte River Point and

beach.

Benzie ............... Beulah (provisional 1983) Federal (NPS) ................ Current .............. 5.5

Point Betsie .................... Benzie ............... Frankfort (1983) .............. Federal (USCG) TNC

managed.

Historical ........... 1.0

MI–17 Nordhouse Dunes to

Ludington.

Mason ............... Manistee NW (provisional

1982).

Hamlin Lake (1982) ........

Federal (USFS), State .... Transient, historical.13.4

MI–18 Muskegon State Park ..... Muskegon ......... Muskegon West (1972

photoinspected 1980).

State ............................... Historical ........... 2.5

MI–19 Lake Superior State Forest-St. Vital Point.Chippewa .......... Albany Island (1964

photoinspected 1976)

DeTour Village (1964).

State ............................... Historical ........... 3.0

MI–20 Lighthouse Point to Cordwood Point—

Lighthouse Point ............. Cheboygan ........ Cheboygan (1982) .......... State ............................... Recent past ....... 1.4

Grass Bay ....................... Cheboygan ........ Cordwood Point (1982) .. TNC preserve ................. Historical, transient.1.6

MI–21 PH Hoeft State Park ....... Presque Isle ...... Roger’s City (1971) ........

Moltke (1971) .................

State ............................... Potential ............ 3.7

MI–22 Thompson’s Harbor ........ Presque Isle ...... Thompson’s Harbor

(1971).

State forest ..................... Potential ............ 2.8

MI–23 Tawas Point State Park Iosco ................. East Tawas (1989) ......... State ............................... Transient ........... 2.0

MN–1 Duluth Harbor ................. St. Louis ............ West Duluth (1953,

photorevised 1969).

Municipal, State, and private.Recent past ....... 2.8

41818 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHIN

MAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION—Continued

Habitat

unit Location name County USGS 7.5′ quad map(s)1:24,000 scale Land ownership 1 Plover use 2

Est.

length

(km)

WI–1 Wisconsin Point .............. Douglas ............. Parkland (1954,

photorevised 1975).

Superior (1954,

photorevised 1983).

Municipal ........................ Historical ........... 4.0

WI–2 Long IslandChequamegon Pt.Ashland ............. Cedar (1964,

photorevised 1975).

Chequamegon Point .......

Federal (NPS), tribal

(Bad River).

Current .............. 5.0

......................................... ........................... (1964, photorevised

1975).

Long Island (1964).

WI–3 Western Michigan Island Ashland ............. Michigan Island (1963) ... Federal (NPS) ................ Potential ............ 6.5

WI–4 Seagull Bar ..................... Marinette ........... Marinette East (1963,

photorevised 1969).

Municipal ........................ Potential ............ 1.5

WI–5 Peshtigo Point ................ Marinette ........... Peshtigo Harbor (1974) .. State ............................... Potential ............ 2.8

WI–6 Pensaukee ...................... Oconto .............. Pensaukee (1974) .......... Federal (ACOE) .............. Historical ........... 0.5

WI–7 Point Beach State Forest Manitowoc ......... Two Rivers (1978) .......... State ............................... Potential ............ 8.0

IL–1 Illinois Beach State Park

to Waukegan Beach.

Lake .................. Zion, Ill. (1993) ...............

Waukegan (1993) ...........

Municipal, State, private Historical ........... 10.2

IN–1 Indiana Dunes National

Lakeshore/Indiana

Dunes State Park.

Porter ................ Ogden Dunes (1991) ......

Dune Acres (1991) .........

Federal (NPS), State ...... Historical, transient.10.5

OH–1 Sheldon Marsh ............... Erie .................... Huron (1969) ..................

Sandusky (1969,

photorevised 1975).

State ............................... Transient ........... 1.2

OH–2 Headlands Dunes ........... Lake .................. Mentor (1963, revised

1992).

State ............................... Potential ............ 0.8

PA–1 Presque Isle State Park Erie .................... Erie North (1957, revised

1969 and 1975,

photoinspected 1977).

State, Federal (USCG) ... Historical, transient.1.5

NY–1 Salmon River to Stony

Point.

Oswego .............

Jefferson ...........

Pulaski (1956) ................

Ellisburg (1958) ..............

Henderson (1959) ..........

State, multiple private ..... Historical ........... 27.4

1 USACE = U.S. Army Corp of Engineers.

NPS = National Park Service.

TNC = The Nature Conservancy.

USFS = U.S. Forest Service.

USFWS = U.S. Fish and Wildlife Service.

USCG = U.S. Coast Guard.

2 Current = used for nesting since 1995 (49 km).

Recent past = used for nesting since 1985 (11.8 km).

Historical = used for nesting prior to 1985 (65 km).

Transient = Recent (since 1990) sightings of piping plovers (18 km).

Potential = no known record of use but habitat appears suitable for nesting (52 km).

Michigan

Unit MI–1: Whitefish Point to Grand

Marais

This unit encompasses approximately

83.5 km (50 mi) of Lake Superior

shoreline in Chippewa, Luce, and Alger

Counties on the Upper Peninsula of

Michigan. It includes long stretches of

habitat that have been recently used by

piping plovers in addition to areas

currently used by plovers.

Approximately 47 km (29.2 mi) are part

of Muskallonge State Park and Lake

Superior State Forest, approximately 36

km (22.4 mi) are privately owned, and

approximately 0.5 km (0.3 mi) are part

of Whitefish Point National Wildlife

Refuge. This unit also includes a small

area of municipal property at Crisp

Point. This unit extends from the

junction of the southern boundary of

T50N R5W section 6 to the Pictured

Rocks National Lakeshore property

boundary.

Unit MI–2: Pointe Aux Chenes

This unit encompasses approximately

2 km (1.2 mi) of Lake Michigan

shoreline in Mackinac County on the

Upper Peninsula of Michigan. It

includes areas that are currently

occupied by piping plovers. The

majority of the unit (1.1 km (0.7 mi)) is

within the Hiawatha National Forest

and is being considered for a Research

and Natural Area. The rest of the unit

(approximately 0.6 km (0.4 mi)) is

privately owned land. This unit extends

from the mouth of the Pointe Aux

Chenes river to the Hiawatha National

Forest property boundary.

Unit MI–3: Port Inland to Hughes Point

This unit encompasses approximately

3 km (1.8 mi) of Lake Michigan

shoreline in western Mackinac and

eastern Schoolcraft Counties on the

Upper Peninsula of Michigan. It

includes areas that are currently

occupied by piping plovers.

Approximately 0.8 km (0.5 mi) of the

proposed shoreline is owned by Port

Inland Stone and Dolomite Quarry and

the remaining 2.2 km (1.4 mi) are part

of the Lake Superior State Forest. This

unit extends from the westernmost

breakwall at the Port Inland Gaging

Station to the mouth of Swan Creek.

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41819

Unit MI–4: Waugoshance Point to

McCort Hill Beach

This unit encompasses approximately

32 km (19.2 mi) of Lake Michigan

shoreline in Emmet County, Michigan,

and includes Temperance and

Waugoshance islands. It includes areas

that are currently occupied by piping

plovers and supports about half of the

current Great Lakes piping plover

population. Approximately 8.5 km (5.3

mi) are privately owned and 1 km (0.6

mi) is municipal land (Bliss Township

beach and Cross Village beach). The

remaining 22.5 km (14 mi) are part of

Wilderness State Park. This unit extends

from the junction of the northeast corner

of T39N R5W section 28 and the Lake

Michigan shoreline to the southwest

boundary of T37N R6W section 5.

Unit MI–5: Sevenmile Point to

Thornswift Nature Preserve

This unit encompasses approximately

7 km (4.3 mi) of Lake Michigan

shoreline in Emmet County, Michigan.

It includes areas of potential piping

plover nesting habitat and areas that are

currently occupied by piping plovers.

The entire proposed area is under

private ownership. It extends from the

junction of the Lake Michigan shoreline

and the northwest boundary of T36N

R5W section 30 to the junction of the

shoreline and the southwest corner of

T35N R5W section 9.

Unit MI–6: Petoskey State Park

This unit encompasses approximately

2 km (1.2 mi) of Lake Michigan

shoreline in Emmet County, Michigan.

It includes areas of historical piping

plover habitat. Approximately 0.7 km

(0.4 mi) is privately owned land and 1.3

km (0.8 mi) are part of Petoskey State

Park. This unit extends from the mouth

of Tannery Creek to Mononaqua Beach.

Unit MI–7: North Point

This unit encompasses approximately

1.1 km (0.7 mi) of Lake Michigan

shoreline in Charlevoix County,

Michigan. It includes areas of potential

piping plover nesting habitat. The entire

proposed area is a city park owned by

the city of Charlevoix. It includes all

Lake Michigan shoreline within T34N

R8W section 14.

Unit MI–8: Fisherman’s Island State

Park

This unit encompasses approximately

1.3 km (0.8 miles) of Lake Michigan

shoreline in Charlevoix County,

Michigan. It includes areas that are

currently occupied by piping plovers.

The entire proposed area is within

Fisherman’s Island State Park. This unit

extends from the junction of the line

separating T34N R8W section 31 and

T33N R8W section 6 from the Lake

Michigan shore to the Fisherman’s

Island State Park property boundary at

the end of Lakeshore Drive.

Unit MI–9: Indian Point to McCauley’s

Point, Beaver Island

This unit encompasses approximately

5 km (3.1 mi) of Lake Michigan

shoreline on Beaver Island in

Charlevoix County, Michigan. It

includes areas that are currently

occupied, as well as areas that have

been recently used by piping plovers.

Approximately 4.4 km (2.7 mi) are

privately owned and 0.6 km (0.4 mi) is

part of Beaver Islands State Wildlife

Research Area. This unit extends from

Indian Point to the junction of the

dividing line of T39 N R10W and T38N

R10W and the Lake Michigan shoreline.

Unit MI–10: Greenes Bay, Beaver Island

This unit encompasses approximately

0.8 km (0.5 mi) of Lake Michigan

shoreline on Beaver Island in

Charlevoix County, Michigan. It

includes areas that have been recently

used by piping plovers. Approximately

0.3 km (0.2 mi) is part of the Beaver

Islands State Wildlife Research Area

and the remaining 0.5 km (0.3 mi) is

privately owned land. This unit extends

from the junction of Lake Michigan and

the northwest corner of T38N R11W

section 25 to the junction of the Lake

Michigan shoreline and the dividing

line between T39N and T38N R10W.

Unit MI–11: High Island

This unit encompasses approximately

1.8 km (1.1 mi) of Lake Michigan

shoreline on High Island in Charlevoix

County, Michigan. It includes areas that

are currently occupied by piping

plovers. The entire proposed area is part

of the Beaver Islands State Wildlife

Research Area. This unit includes all

Lake Michigan shoreline within T39N

R11W sections 5, 27, and 32.

Unit MI–12: Cathead Bay to Christmas

Cove

This unit encompasses approximately

5.9 km (3.7 mi) of Lake Michigan

shoreline in Leelanau County,

Michigan. It includes areas that are

currently occupied by piping plovers

and areas of potential piping plover

nesting habitat. Approximately 1.9 km

(1.2 mi) are part of Leelanau State Park,

and the remaining 4.0 km are privately

owned land. This unit extends from the

intersection of the Lake Michigan

shoreline and the line between T32N

R11W section 12 and T32N R10W

section 7 to the intersection of the

shoreline with the southern boundary of

T32N R11W section 16 north of

Christmas Cove (Northport NW quad).

Unit MI–13: South Fox Island

This unit encompasses approximately

1 km (0.6 mi) of Lake Michigan

shoreline on South Fox Island in

Leelanau County, Michigan. It includes

areas that were historically occupied by

piping plovers. The entire proposed area

is part of the Beaver Island State

Wildlife Research Area. This unit

includes all Lake Michigan shoreline

within T34N R13W sections 15, 16, and

21 and T35R13W section 30.

Unit MI–14: North Manitou Island

This unit encompasses approximately

3.3 km (2 mi) of Lake Michigan

shoreline on North Manitou Island in

Leelanau County, Michigan. It includes

areas that are currently occupied by

piping plovers. The entire proposed area

is part of Sleeping Bear Dunes National

Lakeshore. This unit includes all Lake

Michigan shoreline within T31N R14W

sections 22, 23, 27, and 28.

Unit MI–15: Crystal Run to Empire

Beach

This unit encompasses approximately

14.3 km (8.9 mi) of Lake Michigan

shoreline in Leelanau County,

Michigan. It includes areas of potential

piping plover nesting habitat.

Approximately 4.0 km (2.5 mi) are

municipal beach, and the remaining

10.3 km (6.4 mi) are part of Sleeping

Bear Dunes National Lakeshore. This

unit extends from Crystal Run to the

southern Sleeping Bear Dunes National

Lakeshore property boundary.

Unit MI–16: Esch Road to Sutter Road

and Point Betsie

This unit encompasses approximately

13.5 km (8.4 mi) of Lake Michigan

shoreline in Benzie County, Michigan. It

includes areas that are currently

occupied by piping plovers, areas that

were historically occupied, and areas of

potential piping plover nesting habitat.

The majority of the unit (12.5 km (7.8

mi)) is part of Sleeping Bear Dunes

National Lakeshore, and the remaining

1.0 km (0.6 mi) is U.S. Coast Guard land

that is managed by The Nature

Conservancy, a private conservation

organization. This unit extends from

Esch Road to T26N R16W section 4.

Unit MI–17: Nordhouse Dunes and

Ludington State Park

This unit encompasses approximately

13.4 km (8.3 mi) of Lake Michigan

shoreline in Mason County, Michigan. It

includes areas that were historically

occupied by piping plovers. At least one

pair of piping plovers were sighted in

41820 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

the area in 1999, but no nests were

found. Approximately 7.4 km (4.6 mi)

are part of the Manistee National Forest/

Nordhouse Dunes Wilderness Area, and

the remaining 6.0 km (3.7 mi) are part

of Ludington State Park. This unit

extends from the mouth of Cooper Creek

to the mouth of the Big Sable River.

Unit MI–18: Muskegon State Park

This unit encompasses approximately

2.5 km (1.6 mi) of Lake Michigan

shoreline in Muskegon County,

Michigan. It includes areas that were

historically occupied by piping plovers.

In the early 1950s, several pairs of

piping plovers were reported nesting in

this unit, but the last known nesting was

in 1953. The entire proposed area is part

of Muskegon State Park. This unit

extends from the north breakwall of the

canal joining Muskegon Lake and Lake

Michigan to the northern Muskegon

State Park property boundary at the

shoreline.

Unit MI–19: Lake Superior State ForestSt. Vital Point

This unit encompasses approximately

3.0 km (1.9 mi) of Lake Huron shoreline

in Chippewa County, Michigan. It

includes areas that were historically

occupied by piping plovers. The entire

proposed area is within Lake Superior

State Forest. This unit extends from the

Lake Superior State Forest boundary to

the mouth of Joe Straw Creek.

Unit MI–20: Lighthouse Point to

Cordwood Point

This unit encompasses approximately

8.3 km (5.2 mi) of Lake Huron shoreline

in Cheboygan County, Michigan. It

includes areas that were historically

occupied by piping plovers and

currently serve as foraging areas.

Approximately 3 km (1.9 mi) are part of

Cheboygan State Park, and

approximately 1.6 km (1 mi) are Nature

Conservancy property. The remaining

0.6 km (0.4 mi) is privately owned land.

This unit extends from the junction of

the Lake Huron shoreline and the

western boundary of T38N R1W section

22 to just west of Cordwood Point

(Cordwood Point quad).

Unit MI–21: P.H. Hoeft State Park

This unit encompasses approximately

3.7 km (2.3 mi) of Lake Huron shoreline

in Presque Isle County, Michigan. It

includes areas of potential piping plover

nesting habitat. The entire proposed

area is part of P.H. Hoeft State Park.

This unit includes Lake Huron shoreline

from T35N R5E section 6 to the junction

of Nagel Road and Forty Mile Road.

Unit MI–22: Thompson’s Harbor State

Park

This unit encompasses approximately

2.8 km (1.7 mi) of Lake Huron shoreline

in Presque Isle County, Michigan. It

includes areas of potential piping plover

nesting habitat. Most of this proposed

area is within Thompson’s Harbor State

Park with a small portion of privately

owned land. This unit extends along the

Lake Huron shoreline from Black Point

to Grand Lake Outlet.

Unit MI–23: Tawas Point State Park

This unit encompasses approximately

2.0 km (1.2 mi) of Lake Huron shoreline

in Iosco County, Michigan. It includes

areas used for foraging by transient

piping plovers and potential nesting

habitat. The entire proposed area is part

of Tawas Point State Park. This unit

extends from the Tawas Sate Park

boundary on the east side of Tawas

Point to T22N R8E section 34.

Minnesota

Unit MN–1: Duluth Harbor

This unit encompasses approximately

2.8 km (1.7 mi) of Lake Superior

mainland and island shoreline in St.

Louis County, Minnesota, including Erie

Pier, Hearding Island, and Interstate

Island. It includes areas that have been

recently occupied by piping plovers.

The approximate 1 km (0.6 mi) of

shoreline at Erie Pier is owned by the

city of Duluth. The approximate 1.2 km

(0.7 mi) of island shore line on Hearding

Island is a State Wildlife Management

Area and bird sanctuary. A portion of

the 0.6 km (0.4 mi) of island shoreline

on Interstate Island is in Minnesota, and

a portion is in Wisconsin.

Approximately 0.2 km (0.1 mi) of

Interstate Island shoreline is owned by

the State of Minnesota and is a State

Wildlife Management Area and bird

sanctuary. The remaining 0.4 km (0.2

mi) of Interstate Island shoreline is in

Wisconsin and is private land owned by

C. Rice Coal and Burlington Northern

Railroad. This unit includes the dredge

spoil flats bounded by the seawall

northeast of the railroad tracks in

Duluth as well as Interstate and

Hearding Islands.

Wisconsin

Unit WI–1: Wisconsin Point

This unit encompasses approximately

4.0 km (2.5 mi) of Lake Superior

shoreline in Douglas County,

Wisconsin. It includes areas that were

historically occupied by piping plovers.

The entire proposed area is municipal

land belonging to the city of Superior.

This unit extends from the mouth of

Dutchman Creek to the Douglas and St.

Louis County line.

Unit WI–2: Long Island/Chequamegon

Point

This unit encompasses approximately

18 km (11.2 mi) of Lake Superior

shoreline in Ashland County,

Wisconsin. It includes areas currently

occupied by piping plovers. Nesting

occurred in this unit in 1998 and 1999.

Approximately 13 km (8.1 mi) are part

of the Apostle Islands National

Lakeshore, and the remaining 5 km (3.1

mi) are Tribal lands belonging to the

Bad River Band of Lake Superior Tribe

of Chippewa Indians. This unit extends

from the mouth of the Newago Creek to

Chequamegon Point Light.

Unit WI–3: Western Michigan Island

Beach and Dunes

This unit encompasses approximately

6.5 km (4 mi) of Lake Superior shoreline

on Michigan Island in Ashland County,

Wisconsin. It includes areas of potential

piping plover nesting habitat. The entire

proposed area is part of the Apostle

Island National Lakeshore. This unit

includes all Lake Superior shoreline on

Michigan Island within T51N R1W

sections 28, 20, and 21.

Unit WI–4: Seagull Bar

This unit encompasses approximately

1.5 km (0.9 mi) of Lake Michigan

shoreline in Marinette County,

Wisconsin. It includes areas of potential

piping plover nesting habitat. The entire

proposed area is municipal land. This

unit extends from the end of Leonard

Street at Red Arrow Park to the south

end of Seagull Bar including nearshore

sand bars.

Unit WI–5: Peshtigo Point

This unit encompasses approximately

2.8 km (1.7 mi) of Lake Michigan

shoreline in Marinette County,

Wisconsin. It includes areas of potential

piping plover nesting habitat. The entire

proposed area is part of the Peshtigo

Harbor State Wildlife Area. This unit

extends from Peshtigo Point to the

mouth of the Peshtigo River.

Unit WI–6: Pensaukee Dredge Spoil

Island

This unit encompasses less than 0.5

km (0.3 mi) of Lake Michigan island

shoreline in Oconto County, Wisconsin.

It includes areas that were historically

occupied by piping plovers. The island

is a U.S. Army Corp of Engineers dredge

spoil island. This unit includes the

island just south of the mouth of the

Pensaukee River in T27N, R21E section

14.

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41821

Unit WI–7: Point Beach State Forest

This unit encompasses approximately

8 km (5 mi) of Lake Michigan shoreline

in Manitowoc County, Wisconsin. It

includes areas of potential piping plover

nesting habitat. The entire proposed

area is part of the Point Beach State

Forest. This unit extends from the

southwest property boundary of Point

Beach State Forest to Rawley Point.

Illinois

Unit IL–1: Illinois Beach State Park /

Nature Preserve to Waukegan Beach

This unit encompasses approximately

10.2 km (6.3 mi) of Lake Michigan

shoreline in Lake County, Illinois. It

includes areas that were historically

occupied by piping plovers.

Approximately 4.7 km (2.9 mi) are part

of the Illinois Beach State Park and

Nature Preserve, approximately 1.3 km

(0.8 mi) are municipal property (Zion

municipal park and Waukegan

municipal beach), and the remaining 4.2

km (2.6 mi) are privately owned. This

unit extends from 17th Street and the

Lake Michigan shoreline in Illinois

Beach State Park to the Waukegan Beach

breakwall at North Beach Park.

Indiana

Unit IN–1: Indiana Dunes National

Lakeshore and Indiana Dunes State Park

Beaches

This unit encompasses approximately

10.5 km (6.5 mi) of Lake Michigan

shoreline in Porter County, Indiana. It

includes areas that were historically

occupied by piping plovers.

Approximately 5 km (3.1 mi) are part of

Indiana Dunes State Park and the

remaining 5.5 km (3.4 mi) are part of

Indiana Dunes National Lakeshore. This

unit extends from the Burns Harbor

eastern breakwall along the Indiana

Dunes State Park to Kemil Road at

Beverly Shores.

Ohio

Unit OH–1: Sheldon Marsh

This unit encompasses approximately

3.2 km (2.0 mi) of Lake Erie shoreline

in Erie County, Ohio. It includes areas

that are used by transient piping plovers

and potential nesting habitat.

Approximately 1.2 km (0.7 mi) are part

of Sheldon Marsh State Nature Preserve,

and the remaining 2.0 km (1.2 mi) are

privately owned land. This unit extends

from the mouth of Sawmill Creek to the

western property boundary of Sheldon

Marsh State Natural Area.

Unit OH–2: Headland Dunes

This unit encompasses approximately

0.8 km (0.5 mi) of Lake Erie shoreline

in Lake County, Ohio. It includes areas

of potential piping plover nesting

habitat. The entire proposed area is part

of Headland Dunes State Nature

Preserve. This unit extends from the

eastern boundary line of Headland

Dunes Nature Preserve to the western

boundary of the Nature Preserve and

Headland Dunes State Park.

Pennsylvania

Unit PA–1: Gull Point Natural Area,

Presque Isle State Park

This unit encompasses approximately

1.5 km (0.9 mi) of Lake Erie shoreline

in Erie County, Pennsylvania. It

includes foraging areas for transient

piping plovers and areas that were

historically occupied. Approximately

1.1 km (0.7 mi) are part of the Presque

Isle State Park, and the remaining 0.4

km (0.2 mi) is U.S. Coast Guard

property. This unit extends from the

lighthouse north of Peninsula Drive on

the north side of Presque Isle to the

breakwall south of the Coast Guard

Station on Thompson Bay. It includes

any new beach habitat that may accrete

along the present shoreline portion of

the unit.

New York

Unit NY–1: Salmon River to Stony Point

This unit encompasses approximately

27.4 km (17 mi) of Lake Ontario

shoreline in Jefferson and Oswego

Counties, New York. It includes areas

that were historically occupied by

piping plovers. Approximately 12.4 km

(7.7 mi) are State land (New York State

Department of Environmental

Conservation (DEC) Wildlife

Management Area/ New York DEC

Unique Area and New York State Park),

approximately 14.6 km (9.1 mi) are

privately owned, and the remaining 0.4

km (0.2 mi) belong to The Nature

Conservancy. This unit extends from the

mouth of the Salmon River to the

Eldorado Road.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires all

Federal agencies to ensure that actions

they fund, authorize, or carry out are not

likely to destroy or adversely modify

critical habitat. Individuals,

organizations, States, tribes, local

governments, and other non-Federal

entities are affected by the designation

of critical habitat only if their actions

occur on Federal lands, require a

Federal permit, license, or other

authorization, or involve Federal

funding.

Section 7(a) of the Act requires all

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

proposed or designated critical habitat.

Regulations implementing this

interagency cooperation provision of the

Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires

Federal agencies to confer with us on

any action that is likely to jeopardize

the continued existence of a proposed

species or result in destruction or

adverse modification of proposed

critical habitat. If a species is listed or

critical habitat is designated, section

7(a)(2) requires Federal agencies to

ensure that activities they authorize,

fund, or carry out are not likely to

jeopardize the continued existence of

the species or to destroy or adversely

modify its critical habitat. If a Federal

action may affect a listed species or its

critical habitat, the responsible Federal

agency must consult with us.

When we issue a biological opinion

concluding that a Federal action is

likely to result in the destruction or

adverse modification of critical habitat,

we also provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that we

believe would avoid resulting in the

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conferencing with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat or

adversely modify or destroy proposed

critical habitat.

41822 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

We may issue a formal conference

report on proposed critical habitat if

requested by a Federal agency. Formal

conference reports on proposed critical

habitat contain a biological opinion that

is prepared according to 50 CFR 402.14,

as if the proposed critical habitat were

already designated. Conference reports,

required for species proposed for listing

as threatened or endangered, or for

proposed critical habitat designations,

provide conservation recommendations

to assist the agency in eliminating

conflicts that may be caused by the

agency’s proposed action. The

conservation recommendations in a

conference report are advisory. We may

adopt the formal conference report as

the biological opinion when the critical

habitat is designated, if no significant

new information or changes in the

Federal action alter the content of the

opinion (see 50 CFR 402.10(d)).

Section 4(b)(8) of the Act requires us

to evaluate briefly in any proposed or

final regulation that designates critical

habitat those activities that may

adversely modify such habitat or may be

affected by such designation. Activities

that may destroy or adversely modify

critical habitat include those that alter

the primary constituent elements to the

extent that the value of critical habitat

for both the survival and recovery of the

Great Lakes breeding population of the

piping plover is appreciably

diminished. In the case of occupied

habitat, such activities may also

jeopardize the continued existence of

the Great Lakes population of piping

plovers. In the case of unoccupied

habitat, such activities may alter the

ability of an area to develop the primary

constituent elements.

An activity will likely not adversely

modify critical habitat within a

designated critical habitat unit if the

specific area does not contain any

primary constituent elements. For

example, existing areas such as parking

lots, paved roads, and various kinds of

human-built structures within critical

habitat unit boundaries would not

furnish habitat or biological features for

piping plovers. Furthermore, some

activities would not be restricted by

critical habitat designation because they

would have no adverse effect on the

primary constituent elements or the

ability of an area to develop those

elements.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

the effects of destruction or adverse

modification of critical habitat would

almost always be reflected in the effects

on the species itself when the area of the

proposed action is occupied by the

species concerned. Designation of

critical habitat in areas occupied by the

piping plover is not likely to result in

regulatory protection of the species

above that already in place due solely to

the presence of the listed species.

However, designation of critical habitat

in areas that are not known to be

occupied by this species may result in

additional consultations between us and

other Federal agencies; these additional

consultations may affect Federal actions

beyond those that are already affected

by the listing of the piping plover as

endangered.

Federally funded, permitted, or

authorized activities that could

adversely affect critical habitat of the

Great Lakes breeding population of the

piping plover include, but are not

limited to the following: (1) Marina and

boat launch construction and

maintenance; (2) harbor dredging and

dredge spoil placement and disposal; (3)

fill of interdunal wetlands for residence,

driveway, or other construction; (4)

waste-water discharge from

communities; (5) all-terrain vehicular

activity on beaches or the construction

of facilities that increase such activity;

(6) beach stabilization activities that

impede natural overwash processes

including beach nourishment, planting

of vegetation, and construction and

maintenance of seawalls, breakwaters,

and other off-shore stabilizing devices;

and (7) sale, exchange, or lease of

Federal land that contains suitable

habitat that is likely to result in the

habitat being destroyed or appreciably

degraded. Additionally, public access

may be temporarily or seasonally

restricted on beaches having a Federal

nexus in order to determine which areas

may be utilized for nesting. These

beaches could be closed to assess the

use by piping plovers in the spring

months. Some of these closures may be

voluntary by governmental and private

land managers. Most closures would

end prior to the time the public would

frequent these beaches. Designation of

critical habitat for piping plovers

breeding in the Great Lakes notifies the

U.S. Army Corps of Engineers, other

permitting agencies, and the public that

the Clean Water Act section 404

nationwide permits and other Federal

authorizations for activities within these

designated critical habitat areas must

comply with section 7 consultation

requirements. For each section 7

consultation, we will review the direct

and indirect effects of the proposed

projects on piping plovers and their

critical habitat.

Relationship to Incidental Take Permits

Issued Under Section 10

One habitat conservation planning

effort is currently in progress within the

range of the Great Lakes breeding

population of piping plovers. The Magic

Carpet Woods Association applied to

the Service for an Incidental Take

Permit for the piping plover. Incidental

take is a potential indirect result of the

applicant’s proposed residential

development along a 0.8 km (0.5 mi)

section of Lake Michigan beach in

Leelanau County, Michigan. A Habitat

Conservation Plan (HCP) submitted with

the application will likely avoid or

minimize incidental take of piping

plovers. The proposed development

falls within proposed piping plover

critical habitat; however, no

construction is proposed on the beach

portion of the property. We will

continue to work with the applicant so

as to prevent the project from adversely

modifying or destroying proposed

critical habitat. The beach on this

property currently does not constitute

piping plover nesting habitat, but likely

provides foraging habitat and potential

nesting habitat.

In the event that additional HCPs

covering the Great Lakes piping plover

are developed in the future within the

proposed critical habitat, we will work

with applicants to ensure the HCPs

provide for protection and management

of habitat areas essential for the

conservation of the piping plover, while

directing development and habitat

modification to nonessential areas of

lower habitat value. The HCP

development process provides an

opportunity for more intensive data

collection and analysis regarding the

use of particular habitat areas by the

piping plover. The process also enables

us to conduct detailed evaluations of the

importance of such lands to the longterm survival of the species. We fully

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41823

expect that HCPs undertaken by local

jurisdictions (e.g., townships, counties)

and other parties will identify, protect,

and provide appropriate management

for lands that are essential for the longterm conservation of the species. We

believe that our analyses of future HCPs

and future permits under section 7 will

show that activities carried out in

accordance with the provisions of the

HCPs and permits will not result in

destruction or adverse modification of

critical habitat.

We will provide technical assistance

and work closely with applicants

throughout the development of HCPs to

identify appropriate conservation

management and lands essential for the

long-term conservation of the piping

plover and assure that they do not

adversely modify or destroy the critical

habitat. We are soliciting comments on

whether future approval of HCPs and

issuance of section 10(a)(1)(b) permits

for the piping plover should trigger

revisions of designated critical habitat to

exclude lands within HCP areas, and, if

so, by what mechanism (see Public

Comments Solicited section).

Economic Analysis

Section 4(b)(2) of the Act requires us

to designate critical habitat on the basis

of the best scientific and commercial

information available and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We may exclude areas

as critical habitat upon a determination

that the benefits of such exclusion

outweigh the benefits of specifying such

areas as critical habitat. We cannot

exclude such areas from critical habitat

when such exclusion will result in the

extinction of the species. We will

conduct an analysis of the economic

impacts of designating these areas as

critical habitat prior to a final

determination. When completed, we

will announce the availability of the

draft economic analysis with a notice in

the Federal Register, and we will

reopen the comment period for 30 days

at that time to accept comment on the

economic analysis or further comments

on the proposed rule.

Public Comments Solicited

We intend that any final action

resulting from the proposal will be as

accurate and as effective as possible.

Therefore, we solicit comments or

suggestions from the public, other

concerned governmental agencies,

Native American Tribes, the scientific

community, industry, or any other

interested party concerning this

proposed rule. We particularly seek

comments concerning:

1. The reasons why any habitat

should or should not be determined to

be critical habitat for the Great Lakes

breeding population of piping plovers as

provided by section 4 of the Act,

including whether the benefits of such

exclusion outweigh the benefits of

specifying such area as part of the

critical habitat;

2. Specific information on the amount

and distribution of piping plover

nesting habitat in the Great Lakes

region, and what nesting habitat is

essential to the conservation of the Great

Lakes breeding population of the

species and why;

3. Specific information on the amount

and distribution of Great Lakes breeding

piping plovers;

4. Land use practices and current or

planned activities in the subject areas

and their possible impacts on proposed

critical habitat;

5. Any foreseeable economic or other

impacts resulting from the proposed

designation of critical habitat, in

particular, any impacts on small entities

or families;

6. Economic and other values

associated with designating critical

habitat for the Great Lakes breeding

population of piping plover, such as

those derived from non-consumptive

uses (e.g., hiking, camping,

birdwatching, enhanced watershed

protection, ‘‘existence values,’’ and

reductions in administrative costs; and

7. The advisability of designating as

critical habitat sites that are not

documented to have occupied

historically but are deemed potential

breeding habitat because their

characteristics are suitable for breeding

by piping plovers.

Additionally, we are seeking

comments on critical habitat

designation relative to future HCPs.

Future conservation planning efforts

may occur within the range of the

piping plover in areas we are proposing

as critical habitat. We invite comments

on the appropriateness of the following

alternative approaches we are

considering regarding critical habitat

designations within the boundaries of

future approved HCPs upon issuance of

section 10(a)(1)(B) permits for the

piping plover.

(1) Retain critical habitat designation

within the HCP boundaries and use the

section 7 consultation process on the

issuance of the incidental take permit to

ensure that any take we authorize will

not destroy or adversely modify critical

habitat;

(2) Revise the critical habitat

designation upon approval of the HCP

and issuance of the section 10(a)(1)(B)

permit to retain only preserve areas, on

the premise that they encompass areas

essential for the conservation of the

species within the HCP area and require

special management and protection in

the future. Assuming that we conclude,

at the time an HCP is approved and the

associated incidental take permit is

issued, that the plan protects those areas

essential to the conservation of the

piping plover, we would revise the

critical habitat designation to exclude

areas outside the reserves, preserves, or

other conservation lands established

under the plan. Consistent with our

listing program priorities, we would

publish a proposed rule in the Federal

Register to revise the critical habitat

boundaries;

(3) As in (2) above, retain only

preserve lands within the critical habitat

designation, on the premise that they

encompass areas essential for

conservation of the species within the

HCP area and require special

management and protection in the

future. However, under this approach,

the exclusion of areas outside the

preserve lands from critical habitat

would occur automatically upon

issuance of the incidental take permit.

The public would be notified and have

the opportunity to comment on the

boundaries of the preserve lands and the

revision of designated critical habitat

during the public review and comment

process for HCP approval and

permitting;

(4) Remove designated critical habitat

entirely from within the boundaries of

an HCP when the plan is approved

(including preserve lands), on the

premise that the HCP establishes longterm commitments to conserve the

species and no further special

management or protection is required.

Consistent with our listing program

priorities, we would publish a proposed

rule in the Federal Register to revise the

critical habitat boundaries; or

(5) Remove designated critical habitat

entirely from within the boundaries of

HCPs when the plans are approved

(including preserve lands), on the

premise that the HCP establishes longterm commitments to conserve the

species and no additional special

management or protection is required.

This exclusion from critical habitat

would occur automatically upon

issuance of the incidental take permit.

The public would be notified and have

the opportunity to comment on the

revision of designated critical habitat

during the public notification process

for HCP approval and permitting.

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during regular business hours.

41824 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this request prominently at the

beginning of your comment. However,

we will not consider anonymous

comments. We will make all

submissions from organizations or

businesses, and from individuals

identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

All comments, including written and email, must be received by September 5,

2000.

In accordance with our policy

published on July 1, 1994 (59 FR

34270), we will seek the expert opinions

of at least three appropriate and

independent specialists regarding this

proposed rule. The purpose of such

review is to ensure listing and critical

habitat decisions are based on

scientifically sound data, assumptions,

and analyses. We will send these peer

reviewers copies of this proposed rule

immediately following publication in

the Federal Register. We will invite

these peer reviewers to comment,

during the comment period, on the

specific assumptions and conclusions

regarding the proposed designation of

critical habitat.

We will consider all comments and

information received during the 60-day

comment period on this proposed rule

during preparation of a final

rulemaking. Accordingly, the final

decision may differ from this proposal.

Clarity of the Rule

Executive Order 12866 requires each

agency to write regulations/notices that

are easy to understand. We invite your

comments on how to make this

proposed rule easier to understand

including answers to questions such as

the following: (1) Are the requirements

in the rule clearly stated? (2) Does the

rule contain technical language or

jargon that interferes with the clarity?

(3) Does the format of the rule (grouping

and order of sections, use of headings,

paragraphing, etc.) aid or reduce its

clarity? (4) Is the description of the rule

in the SUPPLEMENTARY INFORMATION

section of the preamble helpful in

understanding the rule? What else could

we do to make the proposed rule easier

to understand?

Send a copy of any comments that

concern how we could make this

proposed rule easier to understand to:

Office of Regulatory Affairs, Department

of the Interior, Room 7229, 1849 C

Street, NW, Washington, DC 20240. You

may e-mail your comments to this

address: Execsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order

12866, this document is a significant

rule and has been reviewed by the

Office of Management and Budget

(OMB), under Executive Order 12866.

(a) This rule will not have an annual

economic effect of $100 million or more

or adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. The Great

Lakes breeding population of piping

plover was listed as an endangered

species in 1985. In fiscal years 1992

through 1999, we conducted only one

formal section 7 consultation with other

Federal agencies to ensure that their

actions would not jeopardize the

continued existence of the piping

plover.

Approximately 255 km (159 mi) of the

areas encompassing proposed critical

habitat for the Great Lakes breeding

population of piping plovers are

currently unoccupied by piping plovers.

The remaining 49 km (30 mi) of the total

designated critical habitat area are

currently occupied by piping plovers.

Under the Act, critical habitat may not

be adversely modified or destroyed by a

Federal agency action; critical habitat

does not impose any restrictions on

non-Federal persons unless they are

conducting activities funded or

otherwise sponsored or permitted by a

Federal agency (see Table 3 below).

Section 7 requires Federal agencies to

ensure that they do not jeopardize the

continued existence of the species.

The designation of currently occupied

areas as critical habitat does not have

any incremental impacts on what

actions may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. Non-Federal persons that do

not have a Federal ‘‘sponsorship’’ of

their actions are not restricted by the

designation of critical habitat (however,

they continue to be bound by the

provisions of the Act concerning ‘‘take’’

of the species).

Designation of unoccupied areas as

critical habitat may have impacts on

what actions may or may not be

conducted by Federal agencies or nonFederal persons that receive Federal

authorization or funding, but we expect

little additional impact from designating

these areas as critical habitat. We will

evaluate this impact through our

economic analysis (see Economic

Analysis section of this rule).

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of piping plovers

since the listing in 1985. The

prohibition against adverse modification

of critical habitat is not expected to

impose any additional restrictions to

those that currently exist in occupied

areas of proposed critical habitat.

Additional restrictions may be imposed

in unoccupied areas proposed as critical

habitat; we will evaluate this possibility

through our economic analysis. Because

of the potential for impacts on other

Federal agency activities, we will

continue to review this proposed action

for any inconsistencies with other

Federal agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and,

as discussed above, we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

additional effects in areas of occupied

habitat. The critical habitat designation

may have some additional effects on the

unoccupied areas of proposed critical

habitat. We will review the effects of

this proposed action on Federal

agencies or non-Federal persons that

receive Federal authorization or funding

in the area of critical habitat with

unknown occupancy.

(d) This rule will not raise novel legal

or policy issues. The proposed rule

follows the requirements for

determining critical habitat contained in

the Endangered Species Act.

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41825

TABLE 3.—ACTIVITIES POTENTIALLY IMPACTED BY PIPING PLOVER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected

by species listing only 1

Additional activities potentially affected

by critical habitat designation 2

Federal Activities Potentially Affected 3 .............. Direct take and activities such as removing or

destroying piping plover breeding habitat,

whether by mechanical, chemical, or other

means (e.g., construction, road building,

boat launch and marina construction or

maintenance, beach nourishment); recreational activities that significantly deter

the use of suitable habitat areas by piping

plovers or alter habitat through associated

maintenance activities (e.g., off-road vehicle

parks, paved walking paths); sale, exchange, or lease of Federal land that contains suitable habitat that may result in the

habitat being destroyed or appreciably degraded (e.g., shoreline development, building of recreational facilities such as off-road

vehicle parks, road building); activities that

may result in increased human activity and

disturbance..

None in occupied habitat. In unoccupied habitat, no additional types of activities will be

affected, but consultation will be required

on these activities in additional areas.

Private and other non-Federal Activities Potentially Affected 4.Direct take and activities such as removing or

destroying piping plover habitat, whether by

mechanical, chemical, or other means (e.g.,

construction, road building, boat launch and

marina construction or maintenance, beach

nourishment) and appreciably decreasing

habitat value or quality (e.g., increased predation, invasion of exotic species, increased

human presence or disturbance) that require a Federal action (permit, authorization, or funding).

None in occupied habitat. In unoccupied habitat, no additional types of activities will be

affected, but consultation will be required

on these activities by the Federal agency

that regulates that Federal action in additional areas.

1This column represents the activities potentially affected by listing the piping plover as an endangered species (December 11, 1985; 50 FR

50726) under the Endangered Species Act. 2This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 3Activities initiated by a Federal agency.

4Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601

et seq.)

In the economic analysis, we will

determine whether designation of

critical habitat will have a significant

effect on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above, this rule is

not expected to result in any restrictions

in addition to those currently in

existence for areas of occupied critical

habitat. However, we would expect

additional restrictions in areas of

unoccupied habitat. As indicated on

Table 1 (see Proposed Critical Habitat

Designation section), we designated

property owned by Federal, State, tribal,

and local governments, and private

property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potentially

adversely modifying critical habitat are:

(1) Regulation of activities affecting

waters of the United States by the U.S.

Army Corps of Engineers under section

404 of the Clean Water Act;

(2) Regulation of water flows, water

delivery, and diversion by Federal

agencies;

(3) Sale, exchange, or lease of lands

owned by a Federal agency;

(4) Road construction and

maintenance and right-of-way

designation;

(5) Funding of low-interest loans to

facilitate the construction of low-income

housing by the Department of Housing

and Urban Development;

(6) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(7) Promulgation of air and water

quality standards under the Clean Air

Act and the Clean Water Act and the

cleanup of toxic waste and superfund

sites under the Resource Conservation

and Recovery Act (RCRA) and the

Comprehensive Environmental

Response, Compensation, and Liability

Act by the U.S. Environmental

Protection Agency;

(8) Issuance of Endangered Species

Act section 10(a)(1)(B) permits by the

Fish and Wildlife Service; and

(9) Activities funded, carried out, or

authorized by any Federal agency.

Many of these activities sponsored by

Federal agencies within the proposed

critical habitat areas are carried out by

small entities (as defined by the

Regulatory Flexibility Act) through

contract, grant, permit, or other Federal

authorization. As discussed above, these

actions are currently required to comply

with the listing protections of the Act,

and the designation of critical habitat is

not anticipated to have any additional

effects on these activities in areas of

critical habitat occupied by the species.

We expect little additional effect for the

unoccupied areas of proposed critical

habitat. In the economic analysis, we

will evaluate whether designation of

critical habitat in the unoccupied areas

will have an effect on activities carried

out by small entities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

rule will have no additional restrictions.

41826 Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we will

determine whether designation of

critical habitat will cause (a) any effect

on the economy of $100 million or

more, (b) any increases in costs or prices

for consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501 et

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will be

affected only to the extent that any of

their actions involving Federal funding

or authorization must not destroy or

adversely modify the critical habitat in

areas where they have not previously

undergone consultation not to

jeopardize the species.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, i.e., it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. This proposed rule, if made

final, will not ‘‘take’’ private property.

Critical habitat designation is applicable

only to Federal lands and to private

lands if a Federal nexus exists. We do

not designate private lands as critical

habitat unless the areas are essential to

the conservation of a species.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. In keeping

with Department of the Interior and

Department of Commerce policy, the

Service requested information from and

coordinated development of this critical

habitat proposal with appropriate State

resource agencies in Minnesota,

Wisconsin, Michigan, Illinois, Indiana,

Ohio, Pennsylvania, and New York, as

well as during the listing process. We

will continue to coordinate any future

designation of critical habitat for the

Great Lakes piping plover with the

appropriate State agencies. The

designation of critical habitat for the

piping plover imposes few additional

restrictions to those currently in place

and, therefore, has little incremental

impact on State and local governments

and their activities. The designation

may have some benefit to these

governments in that the areas essential

to the conservation of the species are

more clearly defined and the primary

constituent elements of the habitat

necessary to the conservation of the

species are specifically identified. While

making this definition and

identification does not alter where and

what federally sponsored activities may

occur, doing so may assist these local

governments in long-range planning

(rather than waiting for case-by-case

section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that the rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order. We designate

critical habitat in accordance with the

provisions of the Act and plan public

hearings on the proposed designation

during the comment period. The 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 Great Lakes

breeding population of piping plover.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

National Environmental Policy Act

We have determined that we do not

need to prepare an Environmental

Assessment and/or an Environmental

Impact Statement as defined by the

National Environmental Policy Act of

1969 in connection with regulations

adopted pursuant to section 4(a) of the

Act. We published a notice outlining

our reasons for this determination in the

Federal Register on October 25, 1983

(48 FR 49244).

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) and the

Department of the Interior’s requirement

at 512 DM 2, we understand that we

must coordinate with recognized

Federal Tribes on a Government-toGovernment basis. We believe that

certain Tribal lands are essential for the

conservation of the piping plover

because they support essential

populations and habitat. Therefore, we

are considering designating critical

habitat for the piping plover on Tribal

lands. We may exclude areas from

critical habitat upon a determination

that the benefits of such exclusions

outweigh the benefits of specifying such

areas as critical habitat according to

section 4(b)(2) of the Act. However, we

cannot exclude such areas from critical

habitat if doing so will result in the

extinction of the species. Due to the

short amount of time allowed under the

court order for preparing this proposed

rule, we have not yet completed

consultation with the affected Tribe, but

we will do so before making a final

decision on critical habitat.

Public Hearings

We have scheduled seven public

hearings at the following addresses on

the dates indicated.

1. Newberry, MI on July 19, 2000, at

Newberry High School Auditorium, 700

Newberry Avenue.

2. Traverse City, MI on July 20, 2000,

at Grand Traverse Civic Center, 1213

West Civic Center Drive.

3. Ashland, WI on July 17, 2000, at

the Northern Great Lakes Center, 29270

County Highway G.

4. Green Bay, WI on July 18, 2000, at

Brown County Central Library, 515 Pine

Street.

5. Indiana Dunes National Lakeshore,

IN on July 24, 2000, at the Dorothy Buell

Memorial Visitors Center, just west of

Beverly Shores on Kemil Road between

U.S. Highways 12 and 20.

6. Cleveland, OH on July 25, 2000, at

The Great Lakes Science Center, 601

Erieside Avenue.

7. Watertown, NY on July 27, 2000, at

Dulles State Office Building, 317

Washington Street, 1st Floor Conference

Room.

All comments that we receive at these

hearings, both verbal and written, will

be considered prior to making our

decision on critical habitat designation.

Copies of the transcripts from the

hearings will be available for review by

scheduling an appointment during

normal business hours at the locations

given above (see ADDRESSES section).

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Fort Snelling Regional

Office (see ADDRESSES section).

Federal Register / Vol. 65, No. 130 / Thursday, July 6, 2000 / Proposed Rules 41827

Author: The primary author of this

notice is Laura J. Ragan (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulations Promulgation

For the reasons given in the preamble,

we propose to amend 50 CFR part 17 as

set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11(h) revise the entry for

‘‘Plover, piping’’ under ‘‘BIRDS’’ to read

as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

BIRDS

*******

Plover, piping ............ Charadrius melodus U.S.A. (Great Lakes,

northern Great

Plains, Atlantic and

Gulf coasts, PR,

VI), Canada, Mexico, Bahamas,

West Indies.

Great Lakes watershed in States of

IL, IN, MI, MN,

NY, OH, PA, and

WI and Canada

(Ont.).

E 211 17.95(b) NA

*******

3. In § 17.95, add critical habitat for

the Great Lakes piping plover

(Charadrius melodus) under paragraph

(b) in the same alphabetical order as this

species occurs in § 17.11 (h) to read as

follows:

§ 17.95 Critical habitat-fish and wildlife.

* * * * *

(b) Birds.

* * * * *

PIPING PLOVER (Charadrius melodus)—

Great Lakes Breeding Population

1. Critical habitat units are depicted for St.

Louis County, Minnesota; Douglas, Ashland,

Marinette, Oconto, and Manitowoc Counties,

Wisconsin; Lake County, Illinois; Porter

County, Indiana; Erie and Lake Counties,

Ohio; Erie County, Pennsylvania; Oswego

and Jefferson Counties, New York; and Alger,

Schoolcraft, Luce, Mackinac, Chippewa,

Iosco, Presque Isle, Cheboygan, Emmet,

Charlevoix, Leelanau, Benzie, Mason, and

Muskegon Counties, Michigan, on the maps

below.

2. The primary constituent elements

required to sustain the Great Lakes breeding

population of the piping plover are found on

Great Lakes islands and mainland shorelines

that support, or have the potential to support,

open, sparsely vegetated sandy habitats—

sand spits or sand beaches associated with

wide, unforested systems of dunes and interdune wetlands. In order for habitat to be

physically and biologically suitable for

piping plovers, it must have a total shoreline

length of at least 0.2 kilometers (km) (0.12

miles (mi)) of gently sloping, sparsely

vegetated (less than 50 percent herbaceous

and low woody cover) sand beach with a

total beach area of at least 2 hectares (5 acres)

and a low level of disturbance from human

activities and from domestic animals. These

appropriately sized sites must also have areas

of at least 50–100 meters (m) (165–330 feet

(ft)) in length where (1) the beach width is

more than 7 m (23 ft), (2) there is cover for

nests and chicks, and (3) the distance to the

treeline (from the normal high water line to

where the forest begins) is more than 50 m

(165 ft). Beach width is defined as the

distance from the normal high water line to

the foredune (a low barrier dune ridge

immediately inland from the beach) edge or

sand/vegetation boundary in areas where the

dune is absent. The beach width may be

narrower than 7 m (23 ft) if appropriate sand

and cobble areas of at least 7 m (23 ft) exist

between the dune and the treeline. Protective

cover for nests and chicks consists of small

patches of herbaceous vegetation, cobble

(stones larger than 1 cm (0.39 inches (in))

diameter), gravel (stones smaller than 1 cm

(0.39 in) diameter), or debris such as

driftwood, wrack, root masses, or dead

shrubs.

3. Critical habitat does not include existing

developed sites consisting of buildings,

marinas, paved areas, boat ramps, and similar

structures.

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Dated: June 28, 2000.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 00–16815 Filed 6–30–00; 9:00 am]

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