63980 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU79 

Endangered and Threatened Wildlife 

and Plants; Critical Habitat 

Designation for the Cape Sable 

Seaside Sparrow 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

revise critical habitat for the endangered 

Cape Sable seaside sparrow 

(Ammodramus maritimus mirabilis) 

under the Endangered Species Act of 

1973, as amended (Act). In total, 

approximately 156,350 acres (ac) 

(63,273 hectares (ha)) fall within the 

boundaries of the proposed critical 

habitat designation. The proposed 

critical habitat is located in Miami-Dade 

and Monroe counties, Florida. 

DATES: We will accept comments from 

all interested parties until January 2, 

2007. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by December 15, 2006. 

ADDRESSES: If you wish to comment, 

you may submit comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information by mail or handdelivery to Tylan Dean, U.S. Fish and 

Wildlife Service, South Florida 

Ecological Services Office, 1339 20th 

Street, Vero Beach, Florida 32960. 

2. You may send comments by 

electronic mail (e-mail) to 

Tylan_Dean@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

3. You may fax your comments to 

772–562–4288. 

4. You may submit comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the South Florida Ecological 

Services Office, 1339 20th Street, Vero 

Beach, Florida (telephone 772–562– 

3909). 

FOR FURTHER INFORMATION CONTACT: 

Tylan Dean, South Florida Ecological 

Services Office (see ADDRESSES); 

telephone 772–562–3909; facsimile 

772–562–4288. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339, 7 

days a week and 24 hours a day. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether the benefit of designation will 

outweigh any threats to the species due 

to designation; 

(2) Specific information on the 

amount and distribution of Cape Sable 

seaside sparrow habitat, including areas 

occupied by Cape Sable seaside 

sparrows at the time of listing and 

containing features essential to the 

conservation of the species, and areas 

not occupied at the time of listing that 

are essential to the conservation of the 

species; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; and 

(5) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES). Please 

submit electronic comments to 

tylan_dean@fws.gov in ASCII file format 

and avoid the use of special characters 

or any form of encryption. Please also 

include ‘‘Attn: Cape Sable seaside 

sparrow’’ in your e-mail subject header 

and your name and return address in 

the body of your message. If you do not 

receive a confirmation from the system 

that we have received your message, 

contact us directly by calling our South 

Florida Ecological Services Office at 

772–562–3909. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their names and home 

addresses, etc., but if you wish us to 

consider withholding this information, 

you must state this prominently at the 

beginning of your comments. In 

addition, you must present rationale for 

withholding this information. This 

rationale must demonstrate that 

disclosure would constitute a clearly 

unwarranted invasion of privacy. 

Unsupported assertions will not meet 

this burden. In the absence of 

exceptional, documentable 

circumstances, this information will be 

released. We will always make 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives of or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under the Act’s section 

4(b)(2), there are significant limitations 

on the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would take place (in other words, other 

statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 475 species, or 36 

percent of the 1,311 listed species in the 

United States under the jurisdiction of 

the Service, have designated critical 

habitat. We address the habitat needs of 

all 1,311 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 


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section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004). In that case, the Ninth 

Circuit invalidated the Service’s 

regulation defining ‘‘destruction or 

adverse modification of critical habitat.’’

In response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

to sue relative to critical habitat, and to 

comply with the growing number of 

adverse court orders. As a result, listing 

petition responses, the Service’s own 

proposals to list critically imperiled 

species, and final listing determinations 

on existing proposals are all 

significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless and is expensive, thus 

diverting resources from conservation 

actions that may provide relatively more 

benefit to imperiled species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

We intend to discuss topics directly 

relevant to the designation of critical 

habitat in this proposed rule. Additional 

topics may be found under the ‘‘Primary 

Constituent Elements’’ discussion. For 

more information on the Cape Sable 

seaside sparrow, including 

characteristics and life history, refer to 

the South Florida Multi-Species 

Recovery Plan, available at the South 

Florida Ecological Services Web site 

http://www.fws.gov/verobeach. 

The Cape Sable seaside sparrow is 

one of eight extant subspecies of seaside 

sparrow. Its distribution is limited to the 

short-hydroperiod wetlands at the 

downstream end of the greater 

Everglades system on the southern tip of 

mainland Florida. Unlike most other 

subspecies of seaside sparrow, which 

occupy primarily brackish tidal systems 

(Post and Greenlaw 1994, p. 4), the Cape 

Sable seaside sparrow currently occurs 

primarily in the short-hydroperiod 

freshwater wet prairies, also referred to 

as marl prairies, though it still occupies 

brackish marshes in some areas. 

The Cape Sable seaside sparrow is 

generally sedentary, secretive, and nonmigratory, and it occupies the marl 

prairies of southern Florida year-round. 

During the breeding season (March to 

August), male sparrows establish and 

defend territories that are variable in 

size, with average sizes ranging from 2.2 

to 8.9 ac (0.9 to 3.6 ha) within different 

sites and years (Werner and Woolfenden 

1983, p. 67; Pimm et al. 2002, p. 18). 

Sparrows are monogamous (Post and 

Greenlaw 1994, p. 10), with a single 

female occurring within a male’s 

breeding territory. Throughout the 

breeding season, the majority of a 

sparrow pair’s activities occur within 

this territory, including breeding, 

feeding, and sheltering. Outside of the 

breeding season, sparrows generally 

remain sedentary in the same general 

vicinity of their breeding territories, but 

occupy a larger area than the breeding 

season territory. Average non-breeding 

season home range size was 

approximately 42.1 ac (17.1 ha) and 

ranged from 14.1 to 137.1 ac (5.7 to 55.5 

ha) (Dean and Morrison 2001, p. 36). 

Some individuals make exploratory 

movements away from their territories 

and may occasionally relocate their 

territories and home ranges before again 

resuming a sedentary movement pattern 

(Dean and Morrison 2001, p. 36). 

Sparrows are generally short-lived, 

with an average individual annual 

survival rate of 66 percent (Lockwood et 

al. 2001, p. 278). The average lifespan is 

probably 2 to 3 years. Consequently, a 

sparrow population requires favorable 

breeding conditions in most years to be 

self-sustaining and cannot persist under 

poor conditions for extended periods 

(Lockwood et al. 1997, p. 729; 

Lockwood et al. 2001, p. 281; Pimm et 

al. 2002, p. 74). 

Sparrows generally begin nesting in 

early March (Lockwood et al. 2001, p. 

278), but they may begin territorial 

behavior, courtship, and nest-building 

in late February (Werner and 

Woolfenden 1983, p. 64; Lockwood et 

al. 1997, p. 722). This timing coincides 

with the dry season, and most areas 


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within the marl prairies are either dry 

or only shallowly inundated at the 

beginning of the breeding season. 

Sparrows build nests above the ground 

surface, typically 6.7 to 7.1 inches (in) 

(17 to 18 centimeters (cm)) over the 

ground (Werner 1975, p. 147; Lockwood 

et al. 2001, p. 278). Nests are woven into 

clumps of dense vegetation and are 

well-concealed (Werner 1975, p. 145; 

Post and Greenlaw 1994, p. 14). Nest 

cups are consistently concealed from 

above (Post and Greenlaw 1994, p. 13), 

either through construction of a domed 

cover or through modifying vegetation 

in the vicinity (Werner 1975, p. 142; 

Post and Greenlaw 1994, pp. 13–14). 

The sparrow nesting cycle, from nest 

construction to independence of young, 

lasts approximately 30 to 50 days 

(Werner 1975, p. 163; Lockwood et al. 

2001, p. 278), and sparrows may renest 

following both successful and failed 

nesting attempts (Werner 1975, p. 163; 

Post and Greenlaw 1994, p. 13; 

Lockwood et al. 2001, p. 278). Because 

of the long breeding season in southern 

Florida, sparrows regularly nest several 

times within a year and may be capable 

of successfully fledging 2 to 4 clutches, 

though few sparrows probably reach 

this level of success (Lockwood et al. 

2001, p. 278). Second and third nesting 

attempts may occur during the early 

portion of the wet season, and nests 

later in the season occur over water. The 

height of nests above ground surface 

increases after water levels rise, and 

average height of late-season nests is 8.3 

in (21 cm) above ground surface 

(Lockwood et al. 2001, p. 278). 

Nest success rates vary among years 

and range from 12 to 53 percent 

(Lockwood et al. 2001, p. 278). Nest 

predation is the primary documented 

cause of nest failure (Pimm et al. 2002, 

p. 23), accounting for more than 75 

percent of all nest failures (Lockwood et 

al. 1997, p. 723). Unlike many other 

wetland species, nest predation rates for 

sparrows are lowest under dry 

conditions. As water levels begin to rise 

above ground surface with the onset of 

the summer rains in May or June, nests 

become more detectable, and therefore, 

nest predation rates also rise. Nests that 

are active after June 1, when water 

levels are above ground, are more than 

twice as likely to fail as nests during 

drier periods (Lockwood et al. 2001, p. 

278). This effect appears to be a result 

of both increased likelihood of nests 

being flooded and an increased 

likelihood of predation (Lockwood et al. 

1997, p. 724; Lockwood et al. 2001, p. 

278; Pimm et al. 2002, p. 25). 

The Cape Sable seaside sparrow was 

first discovered in the cordgrass 

(Spartina spp.) marshes on Cape Sable 

in 1918 and was originally thought to be 

limited in distribution to Cape Sable 

(Howell 1919, p.87). On September 2, 

1935, a severe hurricane struck the Keys 

and southern Florida, with the 

hurricane’s center passing within a few 

miles of Cape Sable (Stimson 1956, p. 

490). Post-hurricane observations 

suggested that, in the vicinity of Cape 

Sable, water levels resulting from the 

storm surge rose approximately 8 feet 

(ft) (2.4 meters (m)) above normal water 

levels, and the sparrow was thought to 

have disappeared from the area as a 

result of the storm, despite occasional 

reports of sparrows that could not be 

verified (Stimson 1956, p. 492). Between 

1935 and the 1950s, searches on Cape 

Sable failed to locate sparrows (Stimson 

1956, p. 492). Despite the fact that 

sparrows were again reported on Cape 

Sable in 1970 (Kushlan and Bass 1983, 

p. 140; Werner and Woolfenden 1983, p. 

57), the habitat in the area had been 

changing significantly from cordgrass 

marshes to mangroves and mud flats 

since the 1935 hurricane, and sparrows 

are considered to have been extirpated 

from this area since 1981 (Kushlan and 

Bass 1983, p. 142). 

In 1928, Cape Sable seaside sparrows 

were reported to the northwest of 

Pinecrest, along the western mainland 

coast of Florida, in the vicinity of what 

is today Everglades City (Nicholson 

1928, p. 237). The location of this 

mainland record was improperly 

reported, and the true location was not 

accurately reported until 1954 (Sprunt 

1954, p. 479). Stimson conducted 

extensive searches on the Florida 

mainland in the vicinity of the corrected 

1928 sparrow observation and found 

sparrows to be widespread throughout 

both coastal cordgrass (reported as S. 

patens, but probably S. bakeri) (Werner 

and Woolfenden 1983, p. 60) marshes 

and freshwater prairies along the 

western edge of the Everglades (Stimson 

1956, p. 490). However, by 1968, 

Stimson (1968, p. 867) concluded that 

widespread fires in this region had 

severely impacted the sparrows in that 

area, and he expected them to be 

extirpated from the area as a result. 

In the early 1940s, Anderson (1942, p. 

12) reported sparrows in the coastal 

marshes in the vicinity of Ochopee. 

Subsequent searches revealed that 

sparrows occurred south of Ochopee 

along the coastal marshes landward of 

the mangrove zone (Stimson 1956, p. 

492). Werner (1975, p. 42) reported that 

habitat occupied by sparrows in the 

Ochopee area was changing from 

cordgrass marshes to other species, and 

mangroves were encroaching into the 

area. Werner’s searches in the area from 

1970 through 1975 (Werner 1975, p. 42) 

revealed a decline in the number of 

sparrows and the amount of habitat 

available in the area. Sparrows were 

extirpated from this area by 1981 

(Kushlan and Bass 1983, p. 143), and 

there is little or no remaining suitable 

habitat in the area. 

Within the last 20 years, sparrows 

have consistently occurred within the 

marl prairies that have had appropriate 

hydrologic and vegetation conditions 

over time. There are six spatially 

distinct regions across the southern 

Everglades where sparrows currently 

occur, and these same areas have 

consistently supported the sparrow 

population. These regions are separated 

from each other by areas of unsuitable 

habitat, such as the forested 

communities of Long Pine Key, the 

deep-water slough communities of 

Shark River Slough and Taylor Slough, 

and other areas that do not support the 

specific conditions that sparrows 

require. The distances between these 

regions range from 2 to 20 miles (mi) 

(3.2 to 32.2 kilometer (km)), and 

sparrows rarely move among the regions 

(Walters et al. 2000, p. 1107; Lockwood 

et al. 2001, p. 279), though some such 

movements have now been documented 

(Lockwood 2006, p. 2). For the last 20 

years, these areas have been commonly 

referred to as sparrow subpopulations A 

through F (Pimm et al. 2002, p. 69). 

In 1972, Cape Sable seaside sparrows 

were discovered in the vicinity of 

Taylor Slough, in what is today known 

as subpopulation C, east of Shark River 

Slough (Ogden 1972, p. 852; see the 

individual units descriptions in the 

Proposed Critical Habitat section for 

identification of the subpopulations). 

Subsequent investigation revealed that a 

sparrow had been reported to 

Everglades National Park (ENP) in this 

area in 1958, but the observation was 

never verified (Werner 1975, p. 32; 

Pimm et al. 2002, p. 10). Surveys 

conducted with the use of a helicopter 

by Werner in 1974 and 1975 sought to 

characterize the distribution and 

abundance of sparrows in this region. 

These initial surveys revealed that 

sparrows were widely distributed and 

abundant (Werner 1975, p. 32). The 

sparrow locations reported included 

locations within what are today known 

as subpopulations B, C, D, E, and F. 

They occupied an area of approximately 

21,745 to 31,629 ac (8,800 to 12,800 ha), 

and the number of sparrows occurring 

within this area was estimated to range 

from 1,500 to 26,300 individuals 

(Werner 1975, p. 32). Because of the 

magnitude of the area occupied and the 

large estimates of population size, 

ecologists concluded that sparrows 

probably occurred within this area for 


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many years. The difficulty in accessing 

the areas and the vastness of the areas 

(Kushlan and Bass 1983, p. 145), as well 

as the secretiveness of the sparrow, all 

contributed to the failure to document 

the sparrow’s occurrence in the area 

previously. The sparrow populations 

within these areas probably fluctuated 

over time in response to changes in 

habitat suitability resulting from fires 

and hydrologic conditions (Taylor 1983, 

p. 148; Kushlan and Bass 1983, p. 145). 

These fluctuations may have also 

contributed to the lack of sparrow 

detections in these areas previously. 

Throughout the known history of the 

Cape Sable seaside sparrow, the species 

has been recognized to associate with 

either of two vegetation communities: 

(1) The cordgrass marshes that are partly 

tidally influenced and occur within a 

narrow band of the coast just landward 

from the mangrove communities, and 

(2) the short-hydroperiod freshwater 

marl prairies that flank the deeper 

sloughs of the southern Everglades. The 

tidally influenced cordgrass marshes 

constitute typical seaside sparrow 

habitat (Post and Greenlaw 1994, p. 3). 

Occurrence year-round within the 

freshwater marl prairies is relatively 

unique among seaside sparrows, with 

only the now-extinct dusky seaside 

sparrow (Ammodramus maritimus 

nigrescens) exhibiting a similar habitat 

affinity; in those freshwater areas 

occupied by the dusky seaside sparrow, 

the habitat was still primarily composed 

of cordgrass (Post and Greenlaw 1994, p. 

4). The freshwater habitats occupied by 

the Cape Sable seaside sparrow are not 

dominated by cordgrass; the most 

commonly associated species reported 

is muhly grass (Muhlenbergia filipes) 

(Werner 1975, p. 77; Kushlan and Bass 

1983, p. 145; Werner and Woolfenden 

1983, p. 59; Post and Greenlaw 1994, p. 

4). However, a variety of vegetation 

species occurs within the freshwater 

marl prairies occupied by Cape Sable 

seaside sparrows, including vegetation 

from which Muhlenbergia is absent 

(Ross et al. 2006, pp. 7–16). Other 

dominant species that occur in these 

prairies include sawgrass (Cladium 

jamaicense), Florida little bluestem 

(Schizachyrium rhizomatum), blacktopped sedge (Schoenus nigricans), and 

beak rushes (Rhynchospora spp.) 

(Werner and Woolfenden 1983, pp. 57–

61; Ross et al. 2006, pp. 6–16). 

Cape Sable seaside sparrows occupy 

the above two community types yearround, and the vegetation must support 

all sparrow life stages. Sparrows occur 

in the heart of the expansive Everglades 

wetland system, in a harsh environment 

where flooding, fires, and high 

temperatures occur regularly. During 

periods when the plant communities are 

dry, usually coinciding with the early 

winter and late spring (December to 

May), sparrows travel across the ground 

beneath the grasses and only 

occasionally perch on the vegetation. 

During the wet season (June to 

November), these areas are continually 

inundated, with peak water depths 

occasionally exceeding 2 ft (0.6 m) (Nott 

et al. 1998, p. 26). During these periods, 

sparrows travel within the grass, 

perching low in the clumps, hopping 

among the bases of dense grass clumps, 

and walking over matted grass. They fly 

more frequently and regularly perch low 

in the vegetation, but they generally 

remain extremely inconspicuous (Dean 

and Morrison 2001, p. 51). 

Periphyton is another important 

characteristic of sparrow habitat. 

Periphyton is a complex matrix of 

calcitic algae and associated organic 

detritus that plays an important role in 

the development of soils within the 

marl prairies (Davis et al. 2005, p. 825). 

During wet periods, a periphyton mat 

forms on all submerged substrates, 

including underlying limestone and 

vegetation stems. Marl soil accretion is 

directly related to the extent and 

productivity of periphyton (Davis et al. 

2005, p. 825), and marl soils are 

consequently generally deeper in areas 

with longer hydroperiods. In some 

areas, a dense periphyton mat forms on 

the water surface and intertwines with 

the vegetation such that sparrows may 

be able to move across it under some 

conditions. These periphyton mats are 

an integral component of marl prairies 

and can affect the vegetation species 

and structure in an area and even the 

microclimate, which all relates to the 

suitability of an area for sparrows. 

Small tree islands and individual 

trees and shrubs occur throughout the 

areas occupied by the sparrows, but at 

a very low density. Sparrows do not 

require woody vegetation during any 

aspect of their normal behavior and 

generally avoid areas where shrubs and 

trees are either dense or evenly 

distributed. However, the small tree 

islands and scattered shrubs and trees 

may serve as refugia during extreme 

environmental conditions and may be 

used as escape cover when fleeing from 

potential predators (Dean and Morrison 

2001, p. 38). Because of the sparrows’

general aversion to dense trees and 

woody vegetation, encroaching trees 

and shrubs can quickly degrade 

potential habitat. 

After fires, sparrows do not regularly 

occupy burned areas for 2 to 3 years 

(Pimm et al. 2002, p. 97; Lockwood et 

al. 2005, p. 10), though they can reoccupy areas after only one year under 

some conditions (Taylor 1983, p. 151; 

Werner and Woolfenden 1983, p. 62). 

This is probably a result of the 

sparrow’s dependence on some level of 

structural complexity that must develop 

to provide cover, support nests, and 

allow them to move through the habitat 

during wet periods. Fire is not 

uncommon within the areas occupied 

by sparrows, and nearly all areas where 

sparrows currently occur have been 

burned within the past 10 to 20 years 

(Lockwood et al. 2003, p. 466). Large 

fires, such as the Ingraham fire of 1989, 

which burned approximately 98,842 ac 

(40,000 ha), pose a significant risk to 

sparrow subpopulations because they 

have the potential to render the habitat 

supporting several entire sparrow 

subpopulations unsuitable for 2 to 3 

years or more (Lockwood et al. 2003, p. 

467). A combination of naturally ignited 

and human-ignited (prescribed, arson, 

or accidental) fires have resulted in 

different fire frequencies in different 

portions of the sparrow’s range. Most of 

the plant species that occur within 

sparrow habitat are fire-adapted and 

respond quickly following fire (Snyder 

2003, pp. 203–204). Several of the 

dominant grass species, including 

Muhlenbergia, also flower primarily 

following fires during the growing 

season (Main and Barry 2002, p. 433). 

Under normal conditions, fires do not 

kill the individual plants that make up 

the dominant species in sparrow 

habitat, and fires only remove the 

above-ground growth and leaf litter 

(Snyder and Schaeffer 2004). The plant 

species rapidly respond, sprout quickly 

following fire, and grow rapidly. Many 

of the dominant grasses may grow more 

than 15 in (38 cm) after only a few 

weeks (Steward and Ornes 1975, p. 167; 

Snyder 2003, pp. 203–204). For this 

reason, the species composition and 

even the general structural 

characteristics of the vegetation may be 

nearly indistinguishable from unburned 

areas only 2 to 3 years after burning 

(Lockwood et al. 2005, pp. 8–9). Under 

unfavorable conditions such as extreme 

wet or dry periods, vegetation recovery 

from fire may be prolonged, and both 

species composition and structure may 

be affected. 

Hydrology of the area is an important 

component of the habitat. In addition to 

directly affecting the sparrow and its 

ability to forage, move within habitat, 

and nest, hydrologic patterns largely 

dictate the plant community 

composition, and even the fire 

frequency. Ross et al. (2006) have 

investigated the relationship between 

vegetation species composition and 

hydroperiods. Their preliminary results 


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indicate that hydroperiods in the range 

of 90 to 270 days support the plant 

species upon which sparrows primarily 

depend (Ross et al. 2006, pp. 14, 40). 

Longer hydroperiods result in such 

unfavorable habitat conditions as dense, 

continuous growth of sawgrass or spike 

rushes (Eleocharis spp.) that sparrows 

do not occupy. Shorter hydroperiods 

may allow encroachment of woody 

species and may have an elevated 

potential of fire (Davis et al. 2005, p. 

828). Within this optimal inundation 

duration, several different vegetation 

associations may result, but most are 

used regularly by sparrows. The local 

variability across the landscape within 

areas where sparrows occur produces a 

heterogeneous arrangement of 

vegetation conditions that provide 

habitat for sparrows during some 

environmental conditions. A complex 

relationship between hydrologic 

conditions, fire history, and soil depth 

determines the specific vegetation 

conditions at a site, and variation in 

these characteristics may result in a 

complex mosaic of vegetation 

characteristics (Taylor 1983, p. 152; 

Ross et al. 2006, pp. 1–46). This 

variability is characteristic of these 

habitats. 

Average annual rainfall in the 

Everglades is approximately 56 in (142 

cm) (ENP 2005, p. 15), with the majority 

falling within the summer months, 

which coincides with the latter half of 

the sparrow nesting season. This rainfall 

has a strong influence on the hydrologic 

characteristics of the marl prairies. 

However, throughout southern Florida, 

including sparrow habitat, hydrologic 

conditions are also strongly influenced 

by water management actions. A 

complex system of canals, levees, 

pumps, and other water management 

structures, operated by complex 

operational rules, can have profound 

impacts on the hydrologic conditions 

throughout much of the remaining marl 

prairies (Johnson et al. 1988, p. 31; Van 

Lent and Johnson 1993, pp. 4–7; Pimm 

et al. 2002, p. 106). 

The interaction of fire and flooding 

also strongly influences the suitability 

of habitat for sparrows. In the most 

extreme case, the vegetation in areas 

that burn and are subsequently flooded 

within 1 to 3 weeks after the fire, either 

as a result of a natural rainfall event or 

human-caused hydrologic changes, may 

not recover for a long period, possibly 

10 years or more (Ross 2006). 

Alternatively, if water levels overtop the 

sprouting grasses, the grasses may die, 

resulting in an absence of vegetation. 

Recovery of vegetation from these 

circumstances has to result from seed 

germination, which requires a much 

longer time for recovery and may result 

in a different plant species composition 

and structure from the vegetation that 

was present prior to the fire. Under less 

extreme conditions, vegetation may 

recover following fire more quickly 

when water levels are near the soil 

surface, providing ample water for the 

plants. 

The six distinct areas that Cape Sable 

seaside sparrows occupy have different 

environmental conditions that affect the 

likelihood of flooding and fire. Areas of 

sparrow habitat that are at higher 

elevation or in areas that tend to be 

overdrained, such as some areas 

proximate to urban and agricultural 

areas (Van Lent and Johnson 1993, p. 5), 

are consequently more likely to burn 

under dry conditions, but may be more 

likely to be favorable to sparrows under 

very wet conditions. Similarly, areas of 

sparrow habitat that are immediately 

downstream from water control 

structures and in relatively low-lying 

areas are generally less likely to burn 

frequently (Ross et al. 2006, p. 43), but 

they may be more subject to damaging 

water levels than other areas during wet 

periods (Nott et al. 1998, p. 31; Pimm 

et al. 2002, p. 107). This variability in 

the physical and environmental 

characteristics among areas occupied by 

the sparrows, in addition to the local 

meteorological variability within the 

region, may help maintain the sparrow 

population over time. 

Previous Federal Actions 

On March 11, 1967 (32 FR 4001), the 

Cape Sable seaside sparrow was 

determined to be ‘‘threatened with 

extinction,’’ and was conferred 

protection under the Endangered 

Species Preservation Act (Pub. L. 89–

669). The Cape Sable seaside sparrow 

was subsequently added to the list of 

species protected under the Endangered 

Species Conservation Act of 1969 (Pub. 

L. 91–135), and all species listed on the 

Conservation Act were adopted by the 

Act in 1973 and assigned to endangered 

status. Critical habitat was designated 

for the Cape Sable seaside sparrow on 

August 11, 1977 (42 FR 40685) and was 

corrected on September 22, 1977 (42 FR 

47840). The 1977 critical habitat 

designation for Cape Sable seaside 

sparrow encompasses approximately 

197,260 ac (79,828 ha). The first 

recovery plan for the sparrow was 

completed in April 1983. A revised 

recovery plan for the sparrow was 

finalized in May 1999. On August 26, 

1999, Sidney Maddock, Biodiversity 

Legal Foundation, submitted a petition 

to the Service, on behalf of himself, the 

Biodiversity Legal Foundation, the 

Florida Biodiversity Project, Brian 

Scherf, and Rosalyn Scherf, to revise 

critical habitat for the Cape Sable 

seaside sparrow. On July 10, 2000 (65 

FR 42316), we published a 90-day 

finding in which we determined that the 

petition presented substantial 

information indicating that revision may 

be warranted. On October 23, 2001 (65 

FR 53573), we published a 12-month 

finding in which we announced that 

revision of critical habitat may be 

warranted as a result of detailed new 

information about sparrow distribution 

and ecology that had been obtained 

since critical habitat was originally 

designated. We concluded that some 

new areas would likely need to be 

added and some removed from the 

critical habitat designation. For more 

information on previous Federal 

actions, including the rationale for 

revising critical habitat, refer to that 12- 

month finding. 

Until now, work on the revision of 

critical habitat for the Cape Sable 

seaside sparrow has been precluded due 

to other, higher priority listing and 

critical habitat actions. On December 20, 

2000, a lawsuit was filed in the U.S. 

District Court for the District of 

Columbia alleging that the Service had 

not complied with the Act by failing to 

issue a 12-month finding as to how it 

planned to proceed with the petitioned 

revision to critical habitat and that the 

revision was withheld or unreasonably 

delayed under the Administrative 

Procedure Act (5 U.S.C. 551 et seq.). On 

September 30, 2003, the Court ruled that 

the Service complied with the Act by 

issuing the finding (see above), and was 

exercising reasonable discretion in 

postponing developing a proposed rule 

to revise critical habitat (Biodiversity 

Legal Foundation v. Norton, 285 F. 

Supp. 2d (D.D.C. 2003)). However, it 

ordered the Service to specify a date on 

which we would begin work on a rule 

to revise critical habitat for the Cape 

Sable seaside sparrow and estimate how 

long the process would take. On 

November 28, 2003, the Service notified 

the Court that a proposed rule to revise 

the critical habitat would be submitted 

to the Federal Register by October 24, 

2006, and a final rule would be 

completed within 12 months of the 

publication of the proposed rule. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: (i) The specific areas 

within the geographical area occupied 

by a species at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 


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protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements (PCEs), as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. [As 

discussed below, such areas may also be 

excluded from critical habitat under 

section 4(b)(2) of the Act.] Furthermore, 

when the best available scientific data 

do not demonstrate that the 

conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. 

However, an area that was not known to 

be occupied at the time of listing but is 

currently occupied by the species will 

likely be essential to the conservation of 

the species and, therefore, typically 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Act, published in 

the Federal Register on July 1, 1994 (59 

FR 34271), and Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service, 

provide criteria, establish procedures, 

and provide guidance to ensure that 

decisions made by the Service represent 

the best scientific data available. They 

require Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCP), or other species 

conservation planning efforts if new 

information available to these planning 

efforts calls for a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining areas that 

contain the physical and biological 

features that are essential to the 

conservation of the Cape Sable seaside 

sparrow and other areas that are 

essential to the conservation of the 

sparrow. We reviewed all available 

published and unpublished literature 

about the ecology of the sparrow, 

including the 1999 petition and 

supporting information provided with 

it. We reviewed the revised recovery 

plan (Service 1999a) for the sparrow, as 

well as the previous recovery plan 

(Service 1983). We evaluated 

management plans that address specific 

management needs of sparrows and 

their habitats and past section 7 

consultations that addressed the needs 

of the sparrow, including the 1999 

jeopardy biological opinion on Test 7 of 

the Experimental Program of Water 

Deliveries (Service 1999b), and the 

reasonable and prudent measures that 

were implemented as a result of the 

biological opinion. We reviewed reports 

received from section 7 consultations 

and from researchers who hold section 

10(a)(1)(A) research permits. We 

reviewed past records of sparrow 

occurrence, distribution, and habitat use 

over time that were compiled by Florida 

Fish and Wildlife Conservation 

Commission (FWC) personnel, National 

Park Service (NPS) personnel, and 

independent researchers contracted by 

the Service and the NPS. We obtained 

spatial information on the location of 

sparrow occurrences recorded on 

surveys from 1981 to present and spatial 

data that reflect vegetation type, fire 

history, and hydrologic conditions 

within these areas. These data were 

entered into a geographic information 

system (GIS) for analysis. We reviewed 

information resulting from hydrologic 

modeling of several water management 

regimes that have been implemented in 

the region. We also evaluated the 

conclusions and recommendations that 

resulted from an independent peer 

review of the science related to 

sparrows and their management that 

was conducted by the American 

Ornithologists’ Union in 1999 (Walters 

et al. 2000), and the recommendations 

and conclusions of the 2003 South 

Florida Ecosystem Restoration Multispecies Avian Workshop (SEI 2003), 

which was held to develop a common 

understanding of how four avian 

species, including the Cape Sable 


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seaside sparrow, would respond to 

Everglades restoration. 

We have also reviewed available 

information on the habitat requirements 

of this species. In determining PCEs, we 

reviewed all available published and 

unpublished literature on the ecology, 

habitat needs, and factors limiting the 

sparrow’s occurrence and distribution, 

including information in published, 

peer-reviewed journal articles; 

unpublished reports and theses; and 

preliminary results from ongoing 

research. 

The original critical habitat 

designation (August 11, 1977, 42 FR 

40685; corrected September 22, 1977, 42 

FR 47840) was evaluated thoroughly 

during our analysis. However, the 1977 

rule did not include the specific criteria 

used to delineate the boundaries of the 

original designation and did not identify 

any PCEs. Therefore, for this proposed 

rule, we chose to begin our analysis by 

considering historic habitat available to 

the species and habitat areas that 

support or have recently supported 

sparrows. All historical and recent 

locations of sparrow occurrences were 

mapped to better delineate sparrow 

habitat. Current and historical habitat 

data from several sources were also 

evaluated to identify areas outside of the 

known occupied range of the Cape Sable 

seaside sparrow that may support 

sparrows or have the potential to 

support sparrows. However, while 

historical habitat maps identified 

several areas outside of the known 

occupied range where sparrows may 

have occurred historically, these areas 

no longer contain habitat features that 

would support sparrows. Therefore, we 

do not propose as revised critical habitat 

any areas outside the geographical areas 

presently occupied by the species. For 

the purpose of this rule, areas presently 

occupied are those where sparrows have 

been recorded between 1981 and the 

present. We are not proposing to 

designate critical habitat on Cape Sable, 

in the Ochopee area, or in agricultural 

areas in the vicinity of Homestead 

where sparrows previously occurred. 

After considering these habitat areas, 

our efforts focused on identifying those 

areas occupied at the time of listing that 

contain the physical and biological 

features essential to the conservation of 

Cape Sable seaside sparrows and those 

other areas that are essential to the 

conservation of the Cape Sable seaside 

sparrow and are presently occupied. To 

determine critical habitat boundaries, 

we began with comprehensive surveys 

of sparrow habitat conducted from 1981 

to 2006 to identify all survey points 

where sparrows have been detected. 

Sparrow surveys are based on a pointcount survey method, which is a 

standard method for passerine birds. 

Surveys are conducted each year during 

the peak of sparrow breeding season. 

Details of the survey are described in 

Pimm et al. 2002. An array of survey 

points has been established across all 

potential sparrow habitats with survey 

points arranged on a grid. Because the 

survey area covers an expanse of area 

that does not contain roads or trails, 

observers are dropped off at survey 

points from a helicopter. The helicopter 

departs the area prior to the count 

initiating. An observer records all 

sparrows heard or seen at the point 

during a 7-minute period. The great 

majority of sparrow detections consist of 

territorial males. Following the 

completion of the count, the helicopter 

returns to transport the observer to the 

next survey point. Each survey point is 

visited once per season. 

Because survey points are arranged on 

a 0.6-mi (1-km) grid and sparrows may 

only be detected accurately within 656 

ft (200 m) of a survey point (Pimm et al. 

2002, p. 153), some areas between 

survey points remain unsurveyed. We 

used a 2,460-ft (750-m) radius around 

each sparrow occurrence to account for 

unsurveyed areas adjacent to or between 

the survey points where sparrows likely 

occurred. The 2,460-ft (750-m) radius 

distance is approximately half of the 

distance between diagonally adjacent 

survey points. In addition, this distance 

is slightly larger than the sum of the 

reliable sparrow detection distance from 

a point (200 m) plus the diameter of an 

average non-breeding season sparrow 

home range (465 m, assuming a circular 

home range based on home range sizes 

in Dean and Morrison 2001, p. 36). This 

distance consequently represents an 

estimate of the area of habitat that 

sparrows detected at a point are likely 

to use. 

We drew a boundary that 

encompassed the 750-m radius around 

sparrow locations but also took into 

account the particular habitat 

characteristics as determined through 

detailed inspection of satellite imagery, 

aerial photography, and habitat maps. 

Outlying sparrow occurrences that were 

recorded in only one year and were not 

adjacent to other recorded sparrow 

observations were excluded. Areas 

along the boundary that did not contain 

features essential for the sparrow (such 

as tree islands, cypress forest, and deepwater slough communities) were 

excluded from the unit. The resulting 

boundary of each unit encompassed the 

core areas of habitat that have been 

occupied by sparrows since 1981. This 

approach relies on the results of 

multiple years of surveys and 

consequently provides a robust 

assessment of sparrow habitat. 

We believe the method we have used 

to delineate critical habitat encapsulates 

the habitat that is important over time 

for all aspects of the sparrow’s life 

history, accounting for the degree of 

natural variability in environmental and 

habitat conditions that occur within the 

Everglades. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we consider 

within areas occupied by the species at 

the time of listing those physical and 

biological features that are essential to 

the conservation of the species (PCEs), 

and that may require special 

management considerations and 

protection. These include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The following information provides 

the justification and background for the 

PCEs for the Cape Sable seaside sparrow 

as they are defined at the end of the 

Primary Constituent Elements section. 

Space for Individual and Population 

Growth and Normal Behavior (Open 

Contiguous Habitat) 

Sparrow subpopulations require large 

patches of contiguous open habitat 

(approximately 4,000 ac/1,619 ha or 

larger). The minimum area required to 

support a population has not been 

specifically determined, but the smallest 

area that has remained occupied by 

Cape Sable seaside sparrows for an 

extended period is this size. Individual 

sparrows are area-sensitive and 

generally avoid the edges where other 

habitat types meet the marl prairies. 

They will only occupy small patches 

(less than 100 ac; 40.5 ha) of marl 

prairie vegetation when the patches 

occur within large, expansive areas and 

are not close to forested boundaries 

(Dean and Morrison 2001, p. 62–63). 

Once sparrows establish a breeding 

territory, they exhibit high site fidelity, 

and each individual sparrow may only 

occupy a small area for the majority of 

its life. Because sparrows are generally 

sedentary and avoid forested areas, they 

are not likely to travel great distances to 

find mates or to find outlying patches of 


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suitable habitat. The occurrence of 

sparrows over time within each of the 

subpopulations shows a centrality in 

which sparrows most consistently occur 

and are most abundant near the center 

of the patch of habitat in which they 

occur. 

Within the marl prairies, individual 

trees or shrubs greater than 4.9 ft (1.5 m) 

tall at a density greater than or equal to 

2.5 per ac (1 per ha), excluding tree 

islands composed of native tropicalCaribbean species occurring on an 

elevated substrate, will make the site 

unsuitable. 

As detailed in the background section, 

structure of habitat within the marl 

prairie (muhly grasses and little 

overstory) and areas of potential habitat 

are also important to sparrows because 

of the inherent variability in habitat 

conditions. While there is relatively 

little elevational variation within the 

Everglades, differences in elevation as 

small as 12 in (30 cm) can result in very 

different plant community and habitat 

characteristics. Single rainfall events in 

the region can deposit greater than 12 in 

(30 cm) of rain within a short period, 

and the variability in elevation and 

vegetation characteristics is critical to 

provide refugia for sparrows under these 

adverse conditions. 

Diet 

While detailed information about the 

diet of sparrows is not known, 

invertebrates comprise the majority of 

their diet, though sparrows may also 

consume seeds when they are available 

(Werner 1975, p. 124; Post and 

Greenlaw 1994, p. 5). Howell (1932, p. 

463) identified the contents of 15 

sparrow stomachs and found remains 

primarily of insects and spiders, as well 

as amphipods, mollusks, and plant 

matter. Primary prey items that are fed 

to nestlings during the breeding season 

include grasshoppers (Orthoptera), 

moths and butterflies (Lepidoptera), 

dragonflies (Odonata), and other 

common large insects (Post and 

Greenlaw 1994, p. 5; Lockwood et al. 

1997, p. 726). Adult sparrows probably 

consume mainly the same species 

during the nesting season. Sparrows 

may consume different proportions of 

different species over time and among 

sites, suggesting that they are dietary 

generalists (Pimm et al. 2002, p. 23). 

During the non-breeding season, 

preliminary information from 

evaluation of fecal collections suggests 

that a variety of small invertebrates, 

including weevils and small mollusks, 

are regularly consumed (Dean and 

Morrison 2001, p. 54). Evidence of seed 

consumption was only present in four 

percent of samples (Dean and Morrison 

2001, p. 54). These non-breeding season 

samples may not be representative of 

the foods most frequently consumed 

during that season and may only 

represent a portion of the items 

ingested. 

While the sparrow appears to be a 

dietary generalist, an important 

characteristic of sparrow habitat is its 

ability to support a diverse array of 

insect fauna. In addition, these food 

items must be available to sparrows 

both during periods when there is dry 

ground and during extended periods of 

inundation. The specific foraging 

substrates used are unknown, but they 

probably vary throughout the year in 

response to hydrologic conditions. 

Sites to Support Foraging, Nesting, and 

Sheltering 

Sparrows maintain territories that 

support all aspects of their life history 

(Werner and Woolfenden 1983, p. 67) 

and sparrows are completely reliant on 

the vegetation, like muhly grass, within 

their home ranges for foraging, nesting, 

and sheltering. Vegetation must also be 

sufficient to support them during 

extreme hydrologic conditions. 

Favorable vegetation characteristics are 

essential to the sparrow’s survival and 

conservation. 

During the dry portion of the year 

(December to May), when water levels 

are near or below ground surface, 

vegetation must be sufficiently dense to 

provide cover from potential predators 

like raptors and small mammalian 

predators, as well as for concealing 

nests. Sparrows most commonly move 

across the ground’s surface. During the 

dry portion of the breeding season 

(March to May), sparrows build nests 

above the ground but relatively low in 

the vegetation (6.7 to 7.1 inches (17 to 

18 cm) above the ground; Lockwood et 

al. 2001, p. 278). 

During the wet portion of the year 

(June to November), the majority of or 

the entire ground surface may be 

inundated for extended periods. During 

these periods, the vegetation within a 

sparrow’s home range serves as the 

substrate for sparrows, and they travel 

over and through it. Vegetation must be 

sufficiently dense and tall such that it 

can support the weight of sparrows as 

they move through it. In addition, it 

must provide cover and escape refugia 

in the structure of the plants from 

predators. Vegetation must also be 

sufficiently dense to support nests 

above the water. During the wet portion 

of the sparrow breeding season (June to 

August), sparrows build their nests 

higher in the vegetation than during dry 

periods, an average of 8.3 in (21 cm) 

above the ground surface (Lockwood et 

al. 2001, p. 278). Even at the nest height, 

there must be sufficient height and 

density of vegetation to cover and 

conceal nests. 

Vegetation must provide sufficient 

diversity and structure to provide 

foraging opportunities for sparrows. The 

birds must be able to find and capture 

insect prey both during periods when 

the ground is dry and when the area is 

inundated. Seeds that are consumed 

during the wet season must be gleaned 

from standing vegetation since any 

seeds on the ground are covered by 

water and periphyton and are 

inaccessible to sparrows. 

Hydrologic Regime 

Hydrologic conditions have 

significant effects on sparrows both 

directly and indirectly. First, depth of 

inundation within sparrow habitat is 

directly related to the sparrow’s ability 

to move, forage, nest, and find shelter 

and cover from predators and harsh 

environmental conditions. At some 

extreme water levels, such as those that 

occurred within some areas of sparrow 

habitat in October 1995, when water 

levels were more than 2 ft. (0.6 m) above 

ground surface, even the majority of the 

vegetation in sparrow habitat is 

completely inundated, leaving sparrows 

with few refugia. Conditions such as 

these may result in significant impacts 

to sparrow survival, and if they occur 

during the breeding season, these water 

levels will cause flooding and loss of 

sparrow nests (Nott et al. 1998, p. 31; 

Pimm and Bass 2002, p. 416 ). Even 

more moderate water levels, around 6 

in. (15 cm) above ground surface, may 

sufficiently inundate some habitat such 

that sparrows are incapable of finding 

shelter and moving around within 

limited areas. These water levels, when 

they occur during sparrow nesting 

season, result in increased rates of nest 

failure due to depredation (Lockwood et 

al. 1997, p. 724). 

The hydrologic regime also affects 

sparrows indirectly through its effects 

on the vegetation community. Persistent 

increases in hydroperiod may quickly 

result in changes in vegetation 

communities from marl prairies or 

mixed prairies to sawgrass-dominated 

communities resembling sawgrass 

marshes (Nott et al. 1998, p. 30). 

Average hydroperiods that extend 

beyond 210 days per year generally 

result in sawgrass marsh communities 

(Ross et al. 2006, p. 14). 

Conversely, areas that are subjected to 

short hydroperiods generally have 

higher fire frequency than longerhydroperiod areas (Lockwood et al. 

2003, p. 464; Ross et al. 2006, p. 43), 

and are readily invaded by woody 


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shrubs and trees (Werner 1975, p. 204; 

Davis et al. 2005, pp. 824–825). Both an 

increased incidence of fire and an 

increased density and occurrence of 

shrubs detract from the suitability of an 

area as sparrow habitat. 

The plant species composition and 

density in the Everglades are largely 

influenced by hydroperiods. 

Hydroperiods that range from 60 to 270 

days support the full variety of 

vegetation conditions that are generally 

suitable for sparrows (Ross et al. 2006, 

p. 14), though the vegetation 

composition and structure may vary 

significantly within this range. 

Soils 

The soils that underlie sparrow 

habitat are composed almost entirely of 

calcitic marl. These soils are not rich in 

organic matter and are formed when 

periphyton mats precipitate calcite 

(Davis et al. 2005, p. 825). In areas 

where hydroperiods are short, 

periphyton mats do not form, and marl 

soil accretion is slow, resulting in 

shallow soils (sometimes less than 0.8 

in. (2 cm)) that do not support dense 

plant growth. The vegetation 

community within the marl prairies is 

uniquely associated with marl soils 

(Davis et al. 2005, p. 825) and does not 

occur on other soil series, though 

individual plant species that occur in 

marl prairies may occur in other 

conditions. 

The short hydroperiods within these 

marl prairie communities also result in 

oxidation of organic matter or 

consumption of organic matter during 

fires. Sawgrass marsh plant 

communities may become established in 

areas with longer hydroperiods that 

usually contain organic peat soils that 

dry less frequently than marl prairies 

(Ross et al. 2006, p. 10; Ogden 2005, 

p. 813). Marl soils, and particularly 

deeper marl soils formed through 

continuous deposition of calcitic 

sediments from periphyton, support the 

density and diversity of plant species 

upon which sparrows rely. While 

similar vegetation may occasionally 

occur over peat soils with a surficial 

periphyton layer, these areas may not 

support sparrow habitat in the long term 

because they may tend to succeed 

toward sawgrass marsh vegetation under 

long hydroperiods, or they may be 

significantly altered when fires consume 

underlying peats during dry conditions. 

Primary Constituent Elements for the 

Cape Sable Seaside Sparrow 

Based on the above discussion of the 

life history, biology, and ecology of the 

species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that the Cape Sable seaside 

sparrow’s PCEs consist of: 

(1) Calcitic marl soils characteristic of 

the short-hydroperiod freshwater marl 

prairies of the southern Everglades. 

(2) Herbaceous vegetation that 

includes greater than 15 percent 

combined cover of live and standing 

dead vegetation of one or more of the 

following species (when measured 

across an area of greater than 100 feet 2

per 30.5 meters 2): Muhly grass 

(Muhlenbergia filipes), Florida little 

bluestem (Schizachyrium rhizomatum), 

black-topped sedge (Schoenus 

nigricans), and cordgrass (Spartina 

bakeri). 

(3) Contiguous open habitat. Sparrow 

subpopulations require large, expansive, 

contiguous habitat patches with few or 

sparse woody shrubs or trees. 

(4) Hydrologic regime such that the 

water depth, as measured from the 

water surface down to the soil surface, 

does not exceed 7.9 inches (20 cm) 

during the period from March 15 to 

June 30 at a frequency of more than 2 

out of every 10 years. 

The above PCEs describe: (1) Soils 

that are widespread in the Everglades 

short-hydroperiod marshes and support 

the vegetation types that the sparrows 

rely on; (2) plant species that are 

characteristic of sparrow habitat in a 

variety of hydrologic conditions, that 

provide structure sufficient to support 

sparrow nests, and that comprise the 

substrate that sparrows utilize when 

there is standing water; (3) contiguous 

open habitat because sparrows require 

large, expansive, contiguous habitat 

patches with sparse woody shrubs or 

trees; (4) hydrologic conditions that 

would prevent flooding sparrow nests, 

maintain hospitable conditions for 

sparrows occupying these areas, and 

generally support the vegetation species 

that are essential to sparrows; and (5) 

overall, the habitat features that support 

the invertebrate prey base the sparrows 

rely on and the variability and 

uniqueness of habitat that provides, for 

example, periphyton mats for sparrows 

to survive in the southern Everglades. 

This proposed designation is designed 

for the conservation of those areas 

containing PCEs necessary to support 

the life history functions that were the 

basis for the proposal. Because not all 

life history functions require all the 

PCEs, not all proposed critical habitat 

will contain all the PCEs. 

Units are designated based on 

sufficient PCEs being present to support 

one or more of the species’ life history 

functions. Some units contain all PCEs 

and support multiple life processes, 

while some units contain only a portion 

of the PCEs necessary to support the 

species’ particular use of that habitat. 

Where a subset of the PCEs is present at 

the time of designation, this rule 

protects those PCEs and thus the 

conservation function of the habitat. 

Criteria Used To Identify Critical 

Habitat 

We are proposing to designate revised 

critical habitat on lands that were 

determined to be occupied at the time 

of listing and that contain sufficient 

PCEs to support life history functions 

essential to the conservation of Cape 

Sable seaside sparrows. In addition, we 

are proposing to designate areas that 

were identified as occupied after listing 

and that we have determined to be 

essential to the conservation of the 

sparrow. 

An area is considered for designation 

as critical habitat when it supports some 

portion of a subpopulation of Cape 

Sable seaside sparrow and meets either 

of the following criteria: (1) Possesses 

one or more of the PCEs and was 

occupied at the time of listing by 

sparrows, or (2) is determined to be 

currently occupied by the Cape Sable 

seaside sparrow through annual surveys 

conducted during the period 1981 to 

present and is essential to the 

conservation of the species. Those areas 

where sparrows were recorded from 

1981 to present represent the areas that 

we are considering to be currently 

occupied. 

Following the strategy outlined above, 

we began with records of sparrow 

occurrence recorded from 

comprehensive surveys conducted from 

1981 to 2006 and identified all survey 

points where sparrows had been 

detected. These areas have consistently 

supported the core of the current 

sparrow subpopulations over a variety 

of conditions. In the variable 

environment of the Everglades 

wetlands, the size and distribution of 

the sparrow subpopulations may change 

in response to environmental 

conditions, fires, and other factors. In 

addition, the vegetation within these 

units may change in response to varying 

environmental conditions. These unit 

boundaries were delineated to provide 

sufficient area such that these 

subpopulations may continue to persist, 

even when taking into account some 

degree of vegetation change and changes 

in population size that may occur under 

adverse conditions. 

Sparrow surveys were conducted in 

1981 and each year from 1992 through 

present, but every survey point was not 

necessarily surveyed in every year. In 

addition, surveys cannot confirm the 

absence of sparrows from a survey 


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point. To address the tendency to 

underestimate the occurrence and 

distribution of sparrows that results 

from incomplete surveys and inability 

to reliably determine absence of 

sparrows, a survey point was considered 

to be occupied if a sparrow was 

recorded in at least one year during the 

period from 1981 to 2006. 

The criteria we employed to delineate 

the boundaries consistently encompass 

the areas where sparrows have occurred, 

despite the fact that sparrows may not 

occur at every point within unit 

boundaries in every year. All 

subpopulations where sparrows 

currently occur were included in unit 

boundaries because flooding and the 

risk resulting from large fires (Lockwood 

et al. 2003, p. 467) makes, over time, 

several entire units unsuitable for 

sparrows for extended periods. When 

this occurs, maintaining suitable habitat 

that supports sparrows in other 

subpopulations is essential to ensure 

that the impacted units could be 

repopulated through immigration or 

through active management. 

This proposed revised designation 

does not include all of the historical 

habitat areas that were occupied by the 

Cape Sable seaside sparrow. However, it 

includes the majority of the remaining 

freshwater marl prairies that currently 

support the sparrow population and 

portions of the Spartina marshes that 

support sparrows and reflects the 

communities that were historically 

occupied by the sparrow throughout its 

range. Such areas as dense sawgrass 

marshes, pine or cypress forests, and 

mangroves are not included in this 

proposed revised designation. We 

conducted field reconnaissance of some 

portions of the units and eliminated 

highly degraded sites, isolated 

fragments of potential habitat that were 

unlikely to contribute to the 

maintenance of the sparrow 

subpopulations, and areas where 

mangroves have recently encroached 

into marl prairie vegetation or where 

cypress trees are present, but not visible 

on aerial photographs. We believe the 

seven remaining, currently occupied 

areas presently contain essential habitat 

features or are essential to the 

conservation of the Cape Sable seaside 

sparrow and, therefore, we are 

proposing as revised critical habitat 

units for the sparrow. These seven units 

in total would result in an overall 

reduction of 40,918 ac (16,560 ha) in the 

total critical habitat acreage compared to 

the original critical habitat designation. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including within the 

boundaries of the map contained within 

this proposed rule developed areas such 

as buildings, paved areas, and other 

structures that lack PCEs for the Cape 

Sable seaside sparrow. The scale of the 

maps prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

proposed rule have been excluded by 

text in the proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species or PCEs in adjacent critical 

habitat. 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by an HCP that identifies 

conservation measures that the 

permittee agrees to implement to 

minimize and mitigate the impacts on 

the species by the requested incidental 

take. We often exclude non-Federal 

public lands and private lands that are 

covered by an existing operative HCP 

and executed implementation 

agreement under section 10(a)(1)(B) of 

the Act from designated critical habitat 

because the benefits of exclusion 

outweigh the benefits of inclusion as 

discussed in section 4(b)(2) of the Act. 

There are no areas within the proposed 

revised critical habitat boundaries for 

the Cape Sable seaside sparrow that 

have HCPs. The units represent mostly 

Federal and some State land. We will 

consider the economic impacts of this 

proposal, and may exclude some 

portion based on the results of this 

analysis (see Economic Analysis 

section). 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain the PCEs and may require 

special management considerations or 

protection. As discussed here and below 

within the unit descriptions, we find 

that all of the PCEs in the areas of 

proposed revised critical habitat 

determined to be occupied at time of the 

Cape Sable seaside sparrow’s listing 

(Units 1 and 2) may require special 

management considerations or 

protection due to threats to the species 

or its habitat (so do Units 3 through 7, 

although this finding is not necessary to 

propose them as critical habitat). Such 

management considerations or 

protection include: measures to prevent 

damaging hydrologic conditions, control 

of invasive exotic plant species, and 

measures to prevent anthropogenic fires 

from spreading through Cape Sable 

seaside sparrow habitat. 

Proposed Critical Habitat Designation 

We are proposing seven units as 

revised critical habitat for the Cape 

Sable seaside sparrow. The critical 

habitat units described below constitute 

our best assessment, at this time, of the 

areas determined to be occupied at the 

time of listing, that contain one or more 

of the PCEs, and that may require 

special management; and those 

additional areas that were not occupied 

at the time of listing but were found to 

be essential to the conservation of the 

Cape Sable seaside sparrow. We 

consider all units as currently occupied. 

The area proposed for designation as 

revised critical habitat differs 

significantly from the original 1977 

designation. The critical habitat 

boundaries in the 1977 designation were 

based on section-township-range 

boundaries, and only delineated 

relatively large, general areas within 

which sparrows were known to occur at 

that time. Consequently, many areas 

originally designated were never Cape 

Sable seaside sparrow habitat, such as 

forested areas of Long Pine Key in 

Everglades National Park, dwarf cypress 

forests (also Everglades National Park), 

deep water slough communities, and 

agricultural areas. These areas, 

therefore, are not being proposed for 

inclusion in the revised critical habitat 

designation, and we have instead sought 

to accurately delineate only the specific 

areas that were important to sparrows in 

the proposed revision. Two of the seven 

critical habitat units in the proposed 

designation have been added since the 

original designation, based on an 

improved understanding of sparrow 

distribution and important sparrow 

habitat characteristics that has been 

developed since the 1977 designation. 

For further information on the changes 

from the original designation, see the 

descriptions of the individual units 

below. 

The seven units proposed for 

designation as Cape Sable seaside 

sparrow critical habitat are: (1) Marl 

prairie habitats that support the main 

portion of sparrow subpopulation A 

within ENP and Big Cypress National 

Preserve (BCNP) that lie on the western 

side of Shark River Slough; (2) brackish 

cordgrass marshes and freshwater marl 

prairies that support a portion of 

sparrow subpopulation A within ENP 

and BCNP in the region known as the 

Stairsteps (for its jagged park boundary), 


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lying in the strip of prairie habitat 

between the coastal mangroves and the 

cypress forests of BCNP; (3) marl prairie 

habitats that support sparrow 

subpopulation B and lie exclusively 

within ENP in the vicinity of the Main 

Park Road, between Shark River Slough 

and Taylor Slough; (4) marl prairie 

habitat that supports sparrow 

subpopulation C within ENP along its 

eastern boundary in the vicinity of 

Taylor Slough; (5) marl prairie habitats 

that support sparrow subpopulation D 

within ENP and the State-owned 

Southern Glades Wildlife and 

Environmental Area to the east of Taylor 

Slough; (6) marl prairie habitats that 

support sparrow subpopulation E 

within ENP, along the eastern edge of 

Shark River Slough; and (7) marl 

prairies that support sparrow 

subpopulation F within the northern 

portion of ENP along its eastern 

boundary and lying to the east of Shark 

River Slough. Table 1 provides the area 

by unit determined to meet the 

definition of critical habitat for the Cape 

Sable seaside sparrow. 

TABLE 1.—CRITICAL HABITAT UNITS PROPOSED FOR THE CAPE SABLE SEASIDE SPARROW

[Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas without PCEs.] 

Critical habitat unit Federal acres 

(hectares) 

State acres 

(hectares) 

Total acres 

(hectares) 

1. Unit 1—subpopulation A marl prairies .................................................................. 59,892 (24,237) 0 59,892 (24,237) 

2. Unit 2—subpopulation A cordgrass marsh ........................................................... 11,402 (4,614) 0 11,402 (4,614) 

3. Unit 3—subpopulation B ........................................................................................ 39,053 (15,804) 0 39,053 (15,804) 

4. Unit 4—subpopulation C ....................................................................................... 8,059 (3,261) 0 8,059 (3,261) 

5. Unit 5—subpopulation D ....................................................................................... 833 (337) 9,867 (3,993) 10,700 (4,330) 

6. Unit 6—subpopulation E ........................................................................................ 22,278 (9,016) 0 22,278 (9,016) 

7. Unit 7—subpopulation F ........................................................................................ 4,958 (2,006) 0 4,958 (2,006) 

Total .................................................................................................................... 146,475 (59,275) 9,867 (3,993) 156,342 (63,268) 

Below, we provide a brief description 

and rationale for each proposed unit of 

revised critical habitat for the Cape 

Sable seaside sparrow. 

Unit 1: Subpopulation A Marl Prairies 

Unit 1 consists of 59,842 ac (24,237 

ha) of freshwater marl prairie. The 

boundary of the proposed unit overlaps 

the boundary of BCNP and ENP. Of the 

total acreage, 31,292 ac (12,663 ha) are 

within ENP, and 28,600 ac (11,574 ha) 

are within BCNP. The proposed unit is 

entirely outside of currently designated 

critical habitat. 

This unit was first determined to 

support sparrows in the mid-1950s 

(Stimson 1956, p. 496), and at that time 

sparrows were widely distributed across 

much of the marl prairies. Their 

occurrence within the area was not 

monitored continuously over time, but 

intermittent surveys indicated their 

continuous presence in the area. 

Surveys in 1968, near the time of the 

sparrow’s listing, indicated that 

extensive fires had reduced the number 

of sparrows in the area significantly 

(Stimson 1968, p. 867), though they 

likely continued to occur scattered 

throughout the area within unburned 

patches (Werner 1975, p. 30). Since that 

time, the sparrow population in the area 

increased, and in the first 

comprehensive survey of potential 

sparrow habitat in 1981, the area was 

found to support a larger number of 

sparrows than any other subpopulation 

(Kushlan and Bass 1983, p. 144). Based 

on this information, we consider this 

unit to be occupied at the time of the 

Cape Sable seaside sparrow’s listing. 

This area contains habitat features 

(one or more of the PCEs) that are 

essential to the conservation of the 

sparrow. It is the largest remaining 

contiguous patch of marl prairie habitat 

and has the potential to support a large 

population of sparrows similar to counts 

taken in prior surveys in the 1980s and 

1990s. A 1999 review of sparrow 

biology conducted by the American 

Ornithologists’ Union concluded that 

the best available means to reduce the 

risk of extinction of the sparrow is to 

retain and recover sparrow 

subpopulation A (Walters et al. 2000, p. 

1111). 

The unit’s spatial separation from the 

other areas occupied by sparrows 

increases its significance to the species. 

It is the only area west of Shark River 

Slough that can support a large sparrow 

subpopulation. Its distance from other 

sparrow subpopulations and the 

intervening slough make it unlikely to 

be affected by any large fire that impacts 

the subpopulations east of Shark River 

Slough, and less likely to be subjected 

to any local detrimental hydrologic 

conditions that may affect the eastern 

subpopulations, either as a result of 

hydrologic management or 

meteorological events. Conversely, its 

separation from other subpopulations 

reduces the likelihood that it would be 

recolonized if local extirpation were to 

occur (Walters et al. 2000, p. 1110). 

While the vegetation within portions of 

the habitat has been impacted by fires 

and flooding, it has consistently 

supported the vegetation species 

composition and structure that sparrows 

require. 

From 1993 to 1995, the sparrow 

population in this area declined 

precipitously, from an estimated 2,608 

individuals in 1992 to 240 individuals 

in 1995 (Pimm et al. 2002, p. 70). This 

decline apparently resulted from 

hydrologic management within the area 

immediately upstream of the area, just 

north of ENP. During these years, the 

sparrow habitat remained flooded for 

extended periods, sometimes deeply 

flooded. Since then, measures have been 

implemented by the U.S. Army Corps of 

Engineers and South Florida Water 

Management District water managers to 

prevent further damage to the sparrow 

subpopulation in the area resulting from 

excessive water levels and duration of 

inundation, but the subpopulation has 

not recovered. Water management plans 

continue to have the potential to result 

in damage to sparrow habitat in these 

areas, and special management of 

hydrologic conditions is necessary. 

Special management may also be 

needed to restore more favorable 

vegetation conditions within this unit. 

Unit 2: Subpopulation A Cordgrass 

Marshes 

Unit 2 consists of 11,402 ac (4,614 ha) 

of mixed cordgrass marsh and 

freshwater marl prairies within the 

coastal prairies between the mangrove 

zone and the cypress forests in the 

vicinity of BCNP in the Stairsteps 

region. Of the total acreage within this 

unit, 6,004 ac (2,430 ha) are within 


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BCNP, and the remaining 5,398 ac 

(2,184 ha) are within ENP. The 

proposed unit is entirely outside of 

currently designated critical habitat. 

This unit was first determined to 

support sparrows in the mid-1950s 

(Stimson 1956, p. 498), and at that time, 

sparrows were distributed through 

much of the coastal marshes from Shark 

River Slough to the northwest to 

Ochopee. Their occurrence within the 

area was not monitored regularly over 

time, but intermittent surveys indicated 

their continuous presence in the area. 

Surveys in 1968, near the time of the 

sparrow’s listing, indicated that fires 

that occurred in 1962 had reduced the 

number of sparrows in the area (Stimson 

1968, p. 867), though they likely 

continued to occur throughout the area 

within unburned patches (Werner 1975, 

p. 30). Based on this information, we 

consider this unit to be occupied at the 

time of the Cape Sable seaside sparrow’s 

listing. 

This area contains habitat features 

(one or more of the PCEs) that are 

essential for the conservation of the 

sparrow. It is the only remaining large 

area of suitable habitat within the 

cordgrass marsh—marl prairie 

transitional zone that sparrows 

historically occupied. Since the 1981 

surveys, the area has not supported 

large numbers of sparrows (Pimm et al. 

2002, p. 70), but it has not been 

regularly surveyed. Because the 

vegetation in this area differs from that 

in the remainder of the proposed critical 

habitat, its condition and suitability is 

influenced by a different set of factors 

than in other units. The area is 

considered to be a portion of sparrow 

subpopulation A, but it is relatively 

isolated from the rest of the area 

supporting this subpopulation. This 

area may serve as a refugium for some 

sparrows and a source of birds for 

recolonization of the remainder of 

subpopulation A if large portions of the 

area were to be affected by large fires or 

damaging hydrologic conditions. 

Mangrove and shrub encroachment 

has occurred in some portions of the 

coastal prairie habitats, and this area 

may require special management 

consideration (see Special Management 

Considerations and Protection section 

above). 

Unit 3: Subpopulation B 

Unit 3 consists of 39,053 ac (15,804 

ha) of marl prairie and lies exclusively 

within ENP. The majority of the 

proposed unit lies within currently 

designated critical habitat. The unit is 

bounded on the south by the longhydroperiod Eleocharis-dominated wet 

prairie and mangrove zone just inland of 

Florida Bay, on the west by the sawgrass 

marshes and deepwater slough 

communities of Shark River Slough, on 

the north by the pine rockland 

vegetation communities that occur 

within ENP on Long Pine Key, and on 

the east by the sawgrass marshes and 

deepwater slough vegetation community 

of Taylor Slough. There is a continuous 

elevational gradient across the site, from 

the high elevations of the pine 

rocklands north of the unit down to the 

mangroves in the south. The area is 

bisected by the Main Park Road, which 

serves as the primary public access 

route from Homestead to Florida Bay. It 

is also bisected by the Old Ingraham 

Highway, which is an abandoned and 

partially restored roadway that 

historically provided access from 

Homestead to the Bay. Much of the 

western portion of this roadway was 

removed and restored to grade, but the 

eastern portions of the road, with its 

associated borrow canal and woody 

vegetation, interrupt the contiguity of 

the prairies within the eastern portion of 

this unit. Besides the road, borrow 

canal, and woody vegetation, which are 

not critical habitat, the area consists of 

one large, contiguous expanse of marl 

prairie that contains the PCEs for the 

sparrow. 

This unit was not known to be 

occupied at the time the sparrow was 

listed in 1967, but sparrows were 

documented in this area in 1974 to 1975 

(Werner 1975, p. 32). Consequently, we 

consider the unit to be unoccupied at 

the time of listing. However, when 

sparrows were first recorded in the area 

during 1974 to 1975 surveys, they were 

abundant and widespread (Werner 

1975, pp. 32–33) and almost certainly 

occurred in the area prior to their 

discovery. This area was included in the 

1977 critical habitat designation for the 

sparrow (42 FR 40685 and 42 FR 47840). 

The area is essential to the 

conservation of the sparrow because it 

is the largest contiguous patch of marl 

prairie east of Shark River Slough. It is 

currently occupied, and has consistently 

supported the largest sparrow 

subpopulation since 1992 (Pimm et al. 

2002, p. 70; Pimm and Bass 2006, p. 16). 

The natural characteristics of this area 

make it relatively immune to risk of 

flooding or frequent fires (Walters et al. 

2000, p. 1110). Its location south of the 

high-elevation pine rocklands provides 

it a degree of protection from high water 

levels that does not occur within any 

other units. Within the southern portion 

of the greater Everglades watershed, 

water flows from north to south, with 

most water moving through Shark River 

Slough, and to a lesser extent through 

Taylor Slough. The pinelands block the 

southward flow of water across this area 

such that the primary influences on 

water levels are rainfall and overflow 

from the flanking sloughs. In addition, 

portions of the area occur on relatively 

high elevations and remain relatively 

dry. Consequently, this area is not easily 

flooded as a result of managed water 

releases or upstream events, and the 

high water levels that may occur within 

other sparrow subpopulations are 

dampened by its relative position and 

topographic characteristics. 

Similarly, the area is not particularly 

vulnerable to fires. It is not overdrained 

as a result of local hydrologic 

management actions, and the fire 

frequency is primarily influenced by 

natural ignition and managed prescribed 

fire. The public road that traverses the 

area could result in an increased 

likelihood of ignitions, but this has not 

occurred to date. In addition, the 

presence of both the Main Park Road 

and the Old Ingraham Highway within 

this unit provides human access greater 

than in any other unit and may allow 

better opportunities to manage both 

prescribed fires and wildfires such that 

they would pose a reduced risk to the 

persistence of the sparrow 

subpopulation. 

Unit 4: Subpopulation C 

Unit 4 consists of 8,059 ac (3,261 ha) 

of marl prairie habitat that lies 

exclusively within ENP in the vicinity 

of Taylor Slough, along the eastern edge 

of ENP. The proposed unit lies entirely 

within the currently designated critical 

habitat. 

The unit consists of the prairies that 

flank both sides of the relatively narrow 

Taylor Slough. The area is bordered by 

the pine rocklands of Long Pine Key on 

the west and by isolated pine rocklands 

and the L–31 W canal that runs along 

the ENP boundary to the east. It is 

bordered by an area of constriction in 

Taylor Slough that is closely flanked on 

both sides by forested habitats at the 

southern end and by the Rocky Glades, 

a region of thin marl soils and exposed 

limestone and sparse vegetation (ENP 

2005, p. 4), to the north. The area is 

bisected by Main Park Road in the 

southern portion of the unit, but the 

remainder of the unit consists of 

contiguous marl prairies. 

This area was not known to be 

occupied at the time of listing in 1967, 

but sparrows were discovered in the 

area in 1972 (Ogden 1972, p. 852). We 

are consequently considering the unit to 

be unoccupied at the time of listing. At 

the time of discovery, sparrows were 

found to be widely distributed and 

abundant in this area (Werner 1975, p. 

32), and it was likely occupied for many 


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years prior to its discovery. Following 

its discovery, the site was the location 

of some of the first intensive study of 

the sparrow’s biology and its 

relationship to its habitat (Werner 1975, 

p. 17). This area was included in the 

1977 critical habitat designation for the 

sparrow (42 FR 40685 and 42 FR 47840). 

During the mid-1970s, sparrows were 

abundant at this site (Werner 1975, p. 

32), and surveys in 1981 estimated 432 

sparrows in this area (Pimm et al. 2002, 

p. 70). Since 1981, the sparrow 

subpopulation at this site has declined 

and has ranged from zero to 144 

sparrows between 1995 and the present 

(Pimm et al. 2002, p. 70; Pimm and Bass 

2006, p. 16). When sparrows were 

abundant in the area, the area was in a 

relatively dry condition, and water 

levels only rose above ground level for 

limited periods. Beginning in 1980, a 

pump station, which was installed along 

the eastern boundary of ENP at the 

approximate location of the historic 

slough, was operated to increase 

hydroperiods in the area resulting in 

extended hydroperiods within the 

portions of the area downstream from 

the pumping station (ENP 2005, p. 39). 

Vegetation changed in this area from 

marl prairie to sawgrass marsh (ENP 

2005, pp. 3–40), and sparrows ceased to 

occur in this area. At the same time, the 

northern portions of sparrow 

subpopulation C, above the pump 

station, continued to be overdrained as 

a result of the adjacent canal and a 

lowered water table in the agricultural 

lands immediately adjacent to ENP 

(Johnson et al. 1988, pp. 30–31; ENP 

2005, p. 53). In these overdrained areas, 

frequent fires impacted the habitat and 

resulted in reduced sparrow numbers 

(Pimm et al. 2002, p. 77). 

This area is essential for the 

conservation of the sparrow because it 

provides a contiguous expanse of 

habitat that is largely separated from 

other nearby subpopulations in an area 

that is uniquely influenced by 

hydrologic characteristics. The Taylor 

Slough basin is a relatively small 

system, and much of the headwaters of 

the Slough are cut off by canals and 

agricultural development to the east of 

ENP. Portions of this unit near the 

slough have deep soils (15.7 in (40 cm)) 

(Taylor 1983, pp. 151–152) and support 

resilient vegetation that responds 

rapidly following fire (Taylor 1983, p. 

151–152; Werner and Woolfenden 1983, 

p. 62). Sparrows were reported to 

reoccupy burned sites in this region 

within 1 to 2 years following fire 

(Werner and Woolfenden 1983, p. 62). 

The unit contains the vegetation 

characteristics upon which sparrows 

rely, and most of the area currently 

experiences hydrologic conditions that 

are compatible with sparrows (one or 

more of the PCEs). This area remains 

heavily influenced by hydrologic 

management along the eastern boundary 

of ENP (ENP 2005, p. 17–18). Portions 

of the area are also overdrained, 

resulting in the possibility of high fire 

frequency. 

The location of this unit relative to 

other sparrow subpopulations is also 

significant in that it occurs in the center 

of the five sparrow subpopulations that 

occur east of Shark River Slough in the 

vicinity of Taylor Slough 

(subpopulations B through F). The 

habitat in this area probably plays an 

important role in supporting dispersal 

among the eastern subpopulations, 

acting as a ‘‘hub’’ that facilitates 

dispersal in the region and 

recolonization of local areas that are 

detrimentally impacted. 

Unit 5: Subpopulation D 

Unit 5 consists of 10,700 ac (4,330 ha) 

of marl prairie vegetation in an area that 

lies on the eastern side of the lower 

portion of Taylor Slough. A portion of 

the proposed unit is within currently 

designated critical habitat. 

The majority of this area (9,867 ac; 

3,993 ha) is within the Southern Glades 

Wildlife and Environmental Area, 

which is jointly managed by the South 

Florida Water Management District and 

the FWC. The remaining 883 ac (337 ha) 

occurs within the boundary of ENP. The 

area is bordered on the south by the 

long-hydroperiod Eleocharis vegetation 

and mangroves that flank Florida Bay, 

on the west by the sawgrass marshes 

and deep-water vegetation of Taylor 

Slough, on the east by longerhydroperiod Eleocharis vegetation and 

overdrained areas with shrub 

encroachment in the vicinity of U.S. 

Highway 1, and on the north by 

agricultural lands and development in 

the vicinity of Homestead and Florida 

City. 

Similar to the other eastern 

subpopulations, sparrows were not 

known to occur in this area at the time 

of listing in 1967, but were discovered 

during surveys from 1972 to 1975 

(Werner 1975, p. 32). We consequently 

consider this proposed unit to be 

unoccupied at the time of listing. 

However, when sparrows were 

discovered in this area, they were 

widespread (Werner 1975, p. 32), 

suggesting that they had occurred in this 

region for a long period prior to their 

discovery. A portion of this area, 

including both Federal- and Stateowned lands was included in the 1977 

critical habitat designation for the 

sparrow (42 FR 40685 and 42 FR 47840). 

This area is essential for the 

conservation of the sparrow because it 

is the easternmost area where sparrows 

occur and is the only subpopulation that 

occurs on the eastern side of Taylor 

Slough. It is consequently unlikely to be 

affected by the same factors (e.g., large 

fires or extreme hydrologic conditions) 

that affect the other eastern 

subpopulations that lie primarily 

between Shark River Slough and Taylor 

Slough. Loss of suitable habitat and the 

sparrow subpopulation within this area 

would also result in a reduction in the 

geographic range of the sparrow. 

The 1981 comprehensive survey of 

potential sparrow habitat estimated 400 

sparrows within this region (Pimm et al. 

2002, p. 70). This was higher than any 

number of sparrows recorded in the area 

in recent years, and estimates have 

ranged from zero to 112 sparrows 

between 1992 and the present (Pimm et 

al. 2002, p. 70; Pimm and Bass 2006, p. 

16). The area currently contains all 

PCEs, but the majority of the area is 

dominated by sawgrass, which indicates 

a wetter-than-average condition within 

the spectrum of conditions that support 

marl prairie and sparrow habitat (Ross 

et al. 2006, p. 16). The habitat in this 

area is divided by several canals that are 

part of the C–111 basin. This canal 

system results in relatively altered 

hydrologic conditions in the region 

(ENP 2005, p. 18) and causes extended 

hydroperiods during wet periods (Pimm 

et al. 2002, p. 78). These factors 

influencing hydrologic conditions will 

continue to require management in the 

future. 

Unit 6: Subpopulation E 

Unit 6 consists of 22,278 ac (9,016 ha) 

of marl prairie habitat in an area that 

lies along the eastern margin of Shark 

River Slough. This unit occurs entirely 

within ENP, and the majority of the 

proposed unit is within currently 

designated critical habitat. The area is 

bordered to the south by the pine 

rocklands of Long Pine Key and by an 

area dominated by dwarf cypress trees. 

The sawgrass marshes and deepwater 

slough vegetation communities of Shark 

River Slough comprise the western and 

northern boundary of the area, and the 

Rocky Glades comprise the eastern 

boundary. 

Similar to the other eastern 

subpopulations, sparrows were not 

known to occur in this area at the time 

of listing in 1967, but were discovered 

during surveys from 1972 to 1975 

(Werner 1975, p. 32). We consequently 

consider this proposed unit to be 

unoccupied at the time of listing. 

However, when sparrows were 

discovered in this area, they were 


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relatively widespread (Werner 1975, p. 

33), suggesting that they had occurred in 

this region for a long period prior to 

their discovery. The majority of this area 

was included in the 1977 critical habitat 

designation for the sparrow (42 FR 

40685 and 42 FR 47840). This area is 

currently occupied by sparrows and 

contains one or more of the PCEs. 

This area is essential to the 

conservation of the species because it 

supports one of the large, relatively 

stable sparrow subpopulations. It is also 

centrally located among the areas 

supporting other subpopulations, and 

its central location probably plays an 

important role in aiding dispersal 

among subpopulations, particularly 

movements from the eastern 

subpopulations to the subpopulations 

west of Shark River Slough. Since 1997, 

this area has supported the second 

largest sparrow subpopulation, ranging 

from 576 to nearly 1,000 individuals in 

recent years (Pimm et al. 2002, p. 70; 

Pimm and Bass 2006, p. 16). 

The centrality of this subpopulation 

also helps to prevent it from being 

affected by managed hydrologic 

conditions because it is distant from 

canals, pumps, and water management 

structures that occur along the 

boundaries of ENP. The magnitude of 

any managed water releases is generally 

dampened by the time their influences 

reach this area. However, the proximity 

of this area to Shark River Slough may 

make the habitats and the sparrows that 

they support vulnerable to hydrologic 

effects during wet periods. The western 

portions of the area may become too 

deeply inundated to provide good 

habitat for sparrows under some deep 

water conditions. Large-scale hydrologic 

modifications, such as those proposed 

under the Comprehensive Everglades 

Restoration Plan, have the potential to 

influence habitat conditions in this area, 

and may require special management 

attention. Large-scale fires may also 

detrimentally affect this area, and there 

are no intervening features in the region 

that would aid in reducing the potential 

impacts on this subpopulation. While 

the area is relatively distant from ENP 

boundaries and potential sources of 

human-caused ignition, fires that are 

started along the eastern ENP boundary 

may rapidly spread into the area. The 

2001 Lopez fire was a human-caused 

fire that affected a portion of this unit 

(Lockwood et al. 2005, p. 4). Risk from 

fire may also require management in 

this area to prevent impacts to this large 

sparrow subpopulation. 

Unit 7: Subpopulation F 

Unit 7 consists of 4,958 ac (2,006 ha) 

of marl prairie that lies along the eastern 

boundary of ENP, and is the 

northernmost of the units east of Shark 

River Slough. This is the smallest of the 

proposed units and the majority of the 

proposed unit is within currently 

designated critical habitat. It is bounded 

on the north and west by the sawgrass 

marshes and deep-water slough 

vegetation communities associated with 

Shark River Slough, and on the east by 

agricultural and residential 

development and the boundary of ENP. 

Its southern boundary is defined by the 

sparse vegetation and shallow soils of 

the Rocky Glades. 

Similar to the other eastern 

subpopulations, sparrows were not 

known to occur in this area at the time 

of listing in 1967, but were discovered 

during surveys from 1972 to 1975 

(Werner 1975, p. 32). We consequently 

consider this proposed unit to be 

unoccupied at the time of listing. 

However, when sparrows were 

discovered in this area, they were 

relatively widespread (Werner 1975, p. 

33), suggesting that they had occurred in 

this region for a long period prior to 

their discovery. The majority of this area 

was included in the 1977 critical habitat 

designation for the sparrow (42 FR 

40685 and 42 FR 47840). This area is 

currently occupied by sparrows, and 

contains one or more of the PCEs 

associated with sparrow critical habitat. 

The first comprehensive surveys of 

potential sparrow habitat in 1981 

resulted in an estimated population of 

112 sparrows in this area, and most 

subsequent surveys have resulted in 

estimates lower than this, including 

several years when no sparrows were 

found (Pimm et al. 2002, p. 70; Pimm 

and Bass 2006, p. 16). However, 

sparrows were always found in the area 

in the year following a zero count 

(Pimm et al. 2002, p. 70), indicating that 

sparrows are consistently using the area. 

This area is essential to the 

conservation of the sparrow because it 

would serve to support or recolonize 

subpopulations C and E (in units 4 and 

6) if those areas were to become 

unsuitable. Loss of habitat in this area 

would also result in a reduction in the 

total spatial distribution of sparrows. Its 

position in the landscape results in a 

unique set of threats that differ from 

those in other subpopulations. Because 

of its proximity to urban and 

agricultural areas and its relative 

topographic location, this area has been 

consistently overdrained in recent years 

and remains dry for longer periods than 

other subpopulations. The relative 

dryness of the area may allow the site 

to remain suitable as habitat for 

sparrows under very wet conditions, 

when other subpopulations may become 

deeply inundated for long periods. 

Because of its dryness and its 

proximity to developed areas, this area 

has been subjected to frequent humancaused fires during the past decade, 

resulting in periods of poor habitat 

quality. Management of fires in the area 

will continue to require special 

consideration. In addition, the dry 

conditions have allowed encroachment 

of woody vegetation, including invasive 

exotic and native woody species. 

Invasive exotic trees, primarily 

Australian-pine (Casuarina spp.), 

melaleuca (Melaleuca quinquenervia), 

and Brazilian pepper (Schinus 

terebinthifolius), have become 

established in local areas (Werner 1975, 

pp. 46–47), often forming dense stands. 

These trees have reduced the suitability 

of some portions of the habitat for 

sparrows and have reduced the amount 

of contiguous open habitat. Aggressive 

management programs have been 

implemented by management agencies 

to address this issue, and control of 

woody vegetation will continue to be 

required. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition (see Gifford Pinchot Task 

Force v. U.S. Fish and Wildlife Service, 

378 F.3d 1059 (9th Cir 2004) and Sierra 

Club v. U.S. Fish and Wildlife Service et 

al., 245 F.3d 434, 442F (5th Cir 2001)). 

Pursuant to current national policy and 

the statutory provisions of the Act, 

destruction or adverse modification is 

determined on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the PCEs to 

be functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 


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to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

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

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action because of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report, while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

Cape Sable seaside sparrow or its 

designated critical habitat will require 

section 7 consultation under the Act. 

Activities on State, Tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the U.S. Army 

Corps of Engineers under section 404 of 

the Clean Water Act or a permit under 

section 10(a)(1)(B) of the Act from the 

Service) or involving some other Federal 

action (such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7 

consultation. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the Cape 

Sable Seaside Sparrow and Its Critical 

Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for Cape Sable 

seaside sparrow jeopardy analyses that 

relies heavily on the importance of 

subpopulations to the survival and 

recovery of the sparrow. The section 

7(a)(2) analysis is focused not only on 

these subpopulations but also on the 

habitat conditions necessary to support 

them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the sparrow in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, if a proposed Federal action 

is incompatible with the viability of the 

affected subpopulation(s), inclusive of 

associated habitat conditions, a jeopardy 

finding for the species is warranted, 

because of the relationship of each 

subpopulation to the survival and 

recovery of the species as a whole. 

Adverse Modification Standard 

For the reasons described in the 

Director’s December 9, 2004 

memorandum, the key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. Generally, the conservation role 

of Cape Sable seaside sparrow critical 

habitat units is to support viable core 

area populations. 


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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. Activities that may 

destroy or adversely modify critical 

habitat are those that alter the PCEs to 

an extent that the conservation value of 

the designated critical habitat for the 

sparrow is appreciably reduced. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

sparrow include, but are not limited to: 

(1) Actions that would significantly 

and detrimentally alter the hydrology of 

marl prairie habitat found in all units. 

Such activities could include, but are 

not limited to, changes to hydrological 

management plans that result in 

increased depth of inundation or 

duration of flooding within sparrow 

habitat during the breeding season; 

(2) Actions that would allow 

encroachment of nonnative and invasive 

woody plant species. Such activities 

could include, but are not limited, to 

local or regional overdrying and 

introduction of nonnative woody plant 

species; 

(3) Actions that would significantly 

and detrimentally alter the topography 

of a site (such alteration may affect the 

hydrology of an area or may render an 

area unsuitable for nesting). Such 

activities could include, but are not 

limited to, off-road vehicle use and 

mechanical clearing; 

(4) Actions that would reduce the 

value of a site by significantly 

disturbing sparrows from activities, 

such as foraging and nesting; and 

(5) Actions that would significantly 

and detrimentally alter water quality 

that may lead to detrimental changes in 

vegetation species composition and 

structure or productivity of prey 

organisms and may have direct 

detrimental effects on sparrows. 

These activities could reduce 

population sizes and the likelihood of 

persistence within one or more sparrow 

subpopulations, and reduce the 

suitability of habitat for breeding for 

extended periods. 

We consider all of the units proposed 

as revised critical habitat to contain 

features essential to the conservation of 

the Cape Sable seaside sparrow or to be 

essential to the conservation of the Cape 

Sable seaside sparrow. All units are 

within the geographic range of the 

species, all areas are currently occupied 

by sparrows (based on surveys 

conducted since 1981; Pimm et al. 2002; 

Pimm and Bass 2006), and all areas are 

likely to be used by the sparrow. Federal 

agencies already consult with us on 

activities in areas currently occupied by 

the sparrow if the species may be 

affected by the activity to ensure that 

those Federal actions do not jeopardize 

the continued existence of the sparrow 

or destroy or modify its current 

designated critical habitat. 

Application of Section 3(5)(A) and 

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

Act 

The seven units we propose as revised 

critical habitat satisfy the definition of 

critical habitat under section 3(5)(A) of 

the Act because each is a specific area 

within the geographical area occupied 

by the Cape Sable seaside sparrow at the 

time of listing within which are found 

those physical and biological features 

that are essential to its conservation and 

that may require special management 

considerations or protection, or is an 

area not occupied by this species at the 

time of listing but is essential to the 

conservation of the sparrow (see 

‘‘Primary Constituent Elements,’’

‘‘Criteria Used to Delineate Critical 

Habitat,’’ and ‘‘Special Management 

Considerations or Protection’’). We 

considered whether conservation 

activity on publicly or privately 

managed lands within a proposed unit 

might remove the need for special 

management considerations or 

protection from all or part of a unit. All 

of the proposed revised critical habitat 

units fall within lands managed wholly 

or partially for conservation purposes. 

We considered excluding NPS lands 

and State-managed lands from the 

proposed critical habitat designation 

because these properties currently 

operate under general management 

plans (NPS) or conceptual management 

plans (FWC) that address habitat 

management for the sparrow. ENP and 

BCNP are currently drafting new 

General Management Plans, but they are 

not yet complete. While the existing 

management plans include provisions 

and actions intended to maintain the 

habitat type, we determined that none of 

the existing plans provide sufficient 

assurances that hydrologic management 

in these areas will maintain sparrow 

habitat. Neither the NPS nor the FWC 

directly manage the hydrologic 

conditions on their properties. Inflows 

into the properties, as well as adjacent 

hydrologic conditions that affect the 

lands through groundwater seepage, are 

regulated by other Federal and State 

agencies. 

Under section 4(b)(2) of the Act, we 

must consider the economic impact and 

any other relevant impact of designating 

areas as critical habitat. We may exclude 

any area from critical habitat if we 

determine that the benefits of exclusion 

outweigh the benefits of inclusion. 

Benefits of Inclusion 

The most direct benefit of critical 

habitat is that actions taken, authorized, 

or funded by the Federal government 

require consultation under section 7 of 

the Act to ensure that these actions are 

not likely to destroy or adversely modify 

critical habitat (see ‘‘Effects of Critical 

Habitat Designation—Section 7 

Consultation’’). This regulatory benefit 

has two principal limitations. First, it 

applies only to Federal actions and not 

to other actions that may destroy or 

adversely modify critical habitat. 

Second, it ensures only that designated 

areas are not destroyed or adversely 

modified and does not require specific 

steps toward recovery. 

Another benefit of critical habitat is 

that its designation serves to educate 

landowners, State and local 

governments, and the general public. By 

clearly delineating areas of high 

conservation value, designation may 

help focus and promote conservation 

efforts for the Cape Sable seaside 

sparrow. Designation informs State and 

Federal agencies and local governments 

about areas that they may consider for 

protection or conservation. 

Benefits of Exclusion 

Because the regulatory effect of 

critical habitat is limited to Federal 

actions, the non-economic impacts of 

critical habitat are generally limited to 

Federal lands, partnerships, and trust 

resources. We have determined that the 

lands encompassed by the proposed 

revised critical habitat units for the 

Cape Sable seaside sparrow are not 

owned or managed by the Department of 

Defense, there are currently no HCPs for 

the Cape Sable seaside sparrow, and the 

proposed revised designation does not 

include any Tribal lands. We anticipate 

no impact to national security, Tribal 

lands, partnerships, or habitat 

conservation plans from this revised 

critical habitat designation as proposed. 

Based on the best available 

information, we believe that the benefits 

of designating each of the seven units 

we propose as revised critical habitat 

outweigh the non-economic benefits of 

excluding any specific areas within 

those units. We will evaluate potential 

economic benefits of exclusion in a 

separate notice (see ‘‘Economic 

Analysis’’). 


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Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for the Cape 

Sable seaside sparrow is being prepared. 

We will announce the availability of the 

draft economic analysis as soon as it is 

completed, at which time we will seek 

public review and comment. At that 

time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at 

http://www.fws.gov/verobeach, or by 

contacting the South Florida Ecological 

Services Office directly (see ADDRESSES). 

For further explanation, see the 

Required Determinations section below. 

Editorial Changes 

This proposed rule incorporates a 

change to the common and scientific 

names of the Cape Sable seaside 

sparrow used in the current critical 

habitat entry for this species at 50 CFR 

17.95(b). The current critical habitat 

entry, established by an August 11, 

1977, final rule (42 FR 40685), uses the 

common name ‘‘Cape Sable sparrow’’

and the scientific name ‘‘Ammospiza 

maritima mirabilis.’’ Both names are 

outdated. Our proposed change will 

bring the common and scientific names 

into agreement with those used by the 

scientific community as well as names 

used for this species in the table at 50 

CFR 17.11(h). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and based 

on our implementation of the Office of 

Management and Budget’s Final 

Information Quality Bulletin for Peer 

Review, dated December 16, 2004, we 

will seek the expert opinions of at least 

five appropriate and independent 

specialists regarding the science in this 

proposed rule. The purpose of such 

review is to ensure that our critical 

habitat designation is based on 

scientifically sound data, assumptions, 

and analyses. We will send copies of 

this proposed rule to these peer 

reviewers immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the public comment 

period, on the specific assumptions and 

conclusions regarding the proposed 

revised designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing at least 15 days 

prior to the close of the public comment 

period. We intend to schedule public 

hearings on this proposal, if any are 

requested, once the draft economic 

analysis is available so that we can 

receive public comment on the draft 

economic analysis and proposed rule 

simultaneously. However, we can 

schedule public hearings prior to that 

time, if specifically requested. We will 

announce the dates, times, and places of 

those hearings in the Federal Register 

and local newspapers at least 15 days 

prior to the first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. When it is 

completed, the draft economic analysis 

can be obtained from the internet Web 

site at http://www.fws.gov/verobeach or 

by contacting the South Florida 

Ecological Services Office directly (see 

ADDRESSES). 

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

et seq.) 

Our assessment of economic effects 

will be completed prior to final 

rulemaking based upon review of the 

draft economic analysis prepared 

pursuant to section 4(b)(2) of the Act 

and E.O. 12866. This analysis is for the 

purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect our position on the type of 

economic analysis required by New 

Mexico Cattle Growers Assn. v. U.S. 

Fish and Wildlife Service 248 F.3d 1277 

(10th Cir. 2001). 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 


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analysis prepared pursuant to section 

4(b)(2) of the Act and Executive Order 

12866. This draft economic analysis will 

provide the required factual basis for the 

RFA finding. Upon completion of the 

draft economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This 

proposed rule to designate critical 

habitat for the Cape Sable seaside 

sparrow is a significant regulatory 

action under Executive Order 12866, but 

it is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because only Federal 

and State lands are involved in the 

proposed designation. As such, a Small 

Government Agency Plan is not 

required. However, as we conduct our 

economic analysis, we will further 

evaluate this issue and, as appropriate, 

review and revise this assessment as 

warranted. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Cape Sable seaside 

sparrow in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of critical habitat for the 

Cape Sable seaside sparrow does not 

pose significant takings implications. 

However, we will further evaluate this 

issue as we conduct our economic 

analysis and review and revise this 

assessment as warranted. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with Department of Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of, this 

proposed revised critical habitat 

designation with appropriate State 

resource agencies in Florida. The 

designation of critical habitat in areas 

currently occupied by the Cape Sable 

seaside sparrow imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary to the conservation of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

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

proposed designating revised critical 

habitat in accordance with the 

provisions of the Act. This proposed 

rule uses standard property descriptions 

and identifies the PCEs within the 

designated areas to assist the public in 


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understanding the habitat needs of the 

Cape Sable seaside sparrow. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld by the Ninth Circuit (Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

Ore. 1995), cert. denied 116 S. Ct. 698 

(1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there were no 

Tribal lands occupied at the time of 

listing and no Tribal lands contain 

unoccupied areas that are essential for 

the conservation of the Cape Sable 

seaside sparrow. Therefore, revised 

critical habitat for the sparrow has not 

been proposed on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from Tylan Dean, South Florida 

Ecological Services Office (see 

ADDRESSES). 

Author(s) 

The primary author of this package is 

the South Florida Ecological Services 

Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.95(b), revise the entry for 

‘‘Cape Sable Sparrow (Ammospiza 

maritima mirabilis)’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(b) Birds. 

* * * * * 

Cape Sable Seaside Sparrow 

(Ammodramus maritimus mirabilis) 

(1) Critical habitat units are depicted 

for Miami-Dade and Monroe Counties, 

Florida, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the Cape Sable 

seaside sparrow are the habitat 

components that provide: 

(i) Calcitic marl soils characteristic of 

the short-hydroperiod freshwater 

marshes of the southern Everglades; 

(ii) Herbaceous vegetation that 

includes greater than 15 percent 

combined cover of live and standing 

dead vegetation of one or more of the 

following species (when measured 

across an area of greater than 100 feet2

or 30.5 meters2): Muhly grass 

(Muhlenbergia filipes), Florida little 

bluestem (Schizachyrium rhizomatum), 

black-topped sedge (Schoenus 

nigricans), and cordgrass (Spartina 

bakeri); 

(iii) Contiguous open habitat. Sparrow 

subpopulations require large, expansive, 

contiguous habitat patches with few or 

sparse woody shrubs or trees; and 

(iv) Hydrologic regime such that the 

water depth, as measured from the 

water surface down to the soil surface, 

does not exceed 20 centimeters during 

the period from March 15 to June 30 at 

a frequency of more than 2 out of every 

10 years. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) and the land on which they 

are located existing on the effective date 

of this rule and not containing one or 

more of the primary constituent 

elements. 

(4) Critical Habitat Map Units. Data 

layers defining map units were created 

using a GIS and adding activity areas 

around all Cape Sable seaside sparrow 

point count survey coordinates 

provided by the National Park Service at 

which sparrows have been recorded 

since 1981. These activity areas were 

merged to form one large polygon, and 

the boundaries were further refined by 

delineating suitable sparrow habitat and 

excluding unsuitable habitat along the 

borders based on interpretation of 2004 

Florida Digital Orthographic Quarter 

Quads and Landsat false-color satellite 

imagery (a mosaic of color-balanced 

Landsat 7 Enhanced Thematic Mapper 

scenes from December 2003 to April 

2004 using bands 5, 4, and 3). The 

projection represented in all mapping of 

units is Universal Transverse Mercator 

(UTM) Zone 17 North, NAD 83 Datum. 

(5) Unit 1: (Subpopulation A marl 

prairies. 

(i) General description: Unit 1 

consists of 59,892 ac (24,237 ha) of marl 

prairie habitat that lies within 

Everglades National Park and Big 

Cypress National Preserve in western 

Miami-Dade County and eastern Monroe 

County. 

(ii) Coordinates: From the Shark 

Valley Lookout Tower USGS 1:24,000 

quadrangle map, Florida, land and 

water bounded by the following UTM 

Zone 17 NAD 83 coordinates (E, N): 

514143, 2846698; 516431, 2846561; 

516824, 2846011; 516682, 2844068; 

516594, 2841582; 516875, 2840873; 

517488, 2840452; 517734, 2839419; 

517673, 2838041; 517387, 2837426; 

516650, 2837228; 516449, 2836800; 

516540, 2835500; 516658, 2834795; 

516098, 2834078; 514660, 2832924; 

514076, 2832343; 513001, 2831639; 

512839, 2830561; 512823, 2828209; 

512043, 2827390; 511172, 2827222; 

509898, 2827253; 508760, 2827281; 

508159, 2827079; 508038, 2826568; 

508013, 2825568; 508511, 2824880; 

509868, 2824901; 511045, 2824251; 

511198, 2823869; 511168, 2822653; 

511121, 2821816; 510757, 2821338; 

507478, 2821417; 507360, 2821015; 

507021, 2820482; 506474, 2820279; 

505878, 2820294; 505159, 2820852; 

505149, 2821528; 504894, 2822210; 

504136, 2822229; 503651, 2822376; 

503427, 2823165; 502463, 2823675; 

502423, 2825921; 502848, 2826694; 

504152, 2826771; 504593, 2827085; 

504532, 2827897; 504455, 2829197; 

504000, 2829424; 503518, 2829679; 

503534, 2830328; 503610, 2831218; 

503664, 2832353; 503525, 2832735; 

503102, 2833204; 501505, 2833324; 

500560, 2833482; 500303, 2834029; 


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500297, 2834895; 500460, 2837135; 

500875, 2837476; 502014, 2837476; 

503043, 2837451; 503651, 2837896; 

503936, 2838484; 504643, 2838548; 

505407, 2838745; 505831, 2839465; 

506329, 2839885; 506608, 2840176; 

507187, 2840568; 508459, 2840483; 

509299, 2840462; 509628, 2840589; 

509703, 2841453; 509532, 2842241; 

509275, 2842815; 508665, 2843343; 

508548, 2844103; 509299, 2844896; 

509556, 2845404; 510049, 2845608; 

513381, 2845500; 513540, 2846442; 

514143, 2846698. 

(iii) Note: Map of Unit 1 is provided at 

paragraph (6)(iii) of this entry. 

(6) Unit 2: Subpopulation A cordgrass 

marshes. 

(i) General description: Unit 2 

consists of 11,402 ac (4,614 ha) of mixed 

cordgrass marsh and freshwater marl 

prairie habitat that lies within 

Everglades National Park and Big 

Cypress National Preserve in western 

Miami-Dade County and eastern Monroe 

County. 

(ii) Coordinates: From the Big Boy 

Lake USGS 1:24,000 quadrangle map, 

Florida, land and water bounded by the 

following UTM Zone 17 NAD 83 

coordinates (E, N): 492105, 2842446; 

492056, 2841913; 491748, 2841423; 

491699, 2840927; 491850, 2840297; 

492135, 2839848; 492631, 2839743; 

493232, 2839379; 494098, 2838547; 

494675, 2837925; 495173, 2837895; 

495821, 2837953; 497182, 2837717; 

497993, 2836868; 498545, 2836007; 

498601, 2835269; 498531, 2833907; 

498361, 2832990; 498167, 2832645; 

497878, 2832136; 497396, 2832074; 

496453, 2832042; 495799, 2832518; 

495257, 2833010; 495006, 2834067; 

494409, 2834615; 493847, 2835071; 

493344, 2835636; 492857, 2836108; 

492393, 2836801; 492033, 2837197; 

491131, 2837348; 490947, 2838126; 

490255, 2838530; 489785, 2838965; 

489084, 2839756; 488227, 2840237; 

487680, 2840545; 487225, 2840832; 

487052, 2841334; 487160, 2841939; 

487600, 2842592; 488273, 2842889; 

489569, 2842986; 490215, 2842971; 

491320, 2842815; 492105, 2842446. 

(iii) Note: Map of Units 1 and 2 (Map 1) 

follows: 

BILLING CODE 4310–55–P 


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BILLING CODE 4310–55–C 

(7) Unit 3: Subpopulation B. 

(i) General description: Unit 3 

consists of 39,053 ac (15,804 ha) of marl 

prairie habitat that lies within 

Everglades National Park in 

southwestern Miami-Dade County. 

(ii) Coordinates: From the Long Pine 

Key USGS 1:24,000 quadrangle map, 

Florida, land and water bounded by the 

following UTM Zone 17 NAD 83 

coordinates (E, N): 526917, 2808910; 

527089, 2808114; 527308, 2808109; 

528319, 2808057; 528750, 2807801; 

528903, 2807333; 529236, 2806425; 

529691, 2806032; 530946, 2805892; 

531630, 2805875; 532441, 2805501; 

532453, 2804873; 531446, 2803970; 

530870, 2803902; 530241, 2803890; 

529854, 2803763; 529386, 2803611; 

529182, 2803097; 529144, 2802662; 

529296, 2802167; 529728, 2801965; 

530138, 2801955; 530767, 2801940; 

531394, 2801843; 531909, 2801666; 

532314, 2801438; 532312, 2801384; 

532262, 2800430; 531975, 2799918; 

531693, 2799543; 531425, 2798649; 

531410, 2798077; 531094, 2797430; 

530664, 2796649; 530325, 2796193; 

529846, 2795632; 529518, 2795640; 

528557, 2795500; 528065, 2795485; 

527787, 2795300; 527450, 2794981; 

527006, 2794692; 526591, 2794511; 

526017, 2794525; 525180, 2794982; 

524802, 2795155; 523987, 2795393; 

522696, 2796271; 522130, 2796639; 

521206, 2796853; 520557, 2797169; 

520072, 2797481; 519245, 2798319; 

518416, 2799104; 517970, 2799879; 

517793, 2800456; 517534, 2801062; 

517266, 2801260; 516889, 2801515; 

516474, 2802425; 516492, 2803162; 

516515, 2804116; 516430, 2805100; 

516586, 2805888; 517094, 2806530; 

517680, 2807007; 517877, 2807248; 

518159, 2807596; 518527, 2808078; 

519049, 2808174; 520226, 2808227; 

520856, 2808239; 521482, 2808115; 

521938, 2807749; 522335, 2807194; 

522567, 2806642; 522754, 2806447; 

523349, 2806159; 523785, 2806121; 

524093, 2806387; 524429, 2806706; 

524846, 2806996; 525021, 2807428; 

525305, 2807858; 525560, 2808206; 


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525406, 2808619; 525663, 2809050; 

526296, 2809225; 526917, 2808910. 

(iii) Note: Map of Unit 3 is provided at 

paragraph (11)(iii) of this entry. 

(8) Unit 4: Subpopulation C. 

(i) General description: Unit 4 

consists of 8,059 ac (3,261 ha) of marl 

prairie habitat that lies within 

Everglades National Park in western 

Miami-Dade County. 

(ii) Coordinates: From the Long Pine 

Key USGS 1:24,000 quadrangle map, 

Florida, land and water bounded by the 

following UTM Zone 17 NAD 83 

coordinates (E, N): 534909, 2812258; 

535011, 2812832; 535192, 2813089; 

535650, 2813200; 536001, 2813209; 

536491, 2813232; 536722, 2813349; 

536766, 2813714; 536778, 2814185; 

536928, 2814601; 537297, 2814644; 

537496, 2814936; 537501, 2815128; 

537809, 2815540; 538341, 2815806; 

538763, 2815900; 539200, 2815890; 

539689, 2815825; 540446, 2815981; 

540831, 2815972; 541202, 2816120; 

541312, 2811350; 541539, 2811327; 

541579, 2810820; 541603, 2810365; 

541542, 2810035; 541376, 2809690; 

541211, 2809380; 541133, 2809067; 

541108, 2808754; 541296, 2808574; 

541238, 2808331; 541146, 2808159; 

540844, 2807992; 540792, 2807993; 

540634, 2807979; 540542, 2807824; 

540538, 2807632; 540309, 2807586; 

539756, 2807879; 539132, 2808138; 

538618, 2808605; 538734, 2809056; 

538901, 2809401; 539067, 2809781; 

538637, 2810071; 538068, 2810417; 

537342, 2810784; 536684, 2811114; 

536178, 2811179; 535884, 2811326; 

535598, 2811787; 535253, 2811988; 

534909, 2812258; 

(iii) Note: Map of Unit 4 is provided at 

paragraph (11)(iii) of this entry. 

(9) Unit 5: Subpopulation D. 

(i) General description: Unit 5 

consists of 10,700 ac (4,330 ha) of marl 

prairie habitat that lies within the 

Southern Glades Wildlife and 

Environmental Area and Everglades 

National Park, in southern Miami-Dade 

County, as depicted on Map 2. 

(ii) Coordinates: From the Royal Palm 

Ranger Station SE USGS 1:24,000 

quadrangle map, Florida, land and 

water bounded by the following UTM 

Zone 17 NAD 83 coordinates (E, N): 

546623, 2805929; 547722, 2805064; 

547780, 2804591; 548184, 2804651; 

548884, 2804634; 549599, 2804511; 

550164, 2804008; 550253, 2803378; 

549944, 2802896; 549549, 2802504; 

549138, 2802148; 549024, 2801801; 

549035, 2801539; 549039, 2800997; 

549140, 2800122; 549122, 2799389; 

548970, 2798904; 548373, 2798813; 

547483, 2798958; 546821, 2799061; 

545890, 2798962; 545532, 2798621; 

545114, 2798003; 544479, 2797791; 

543887, 2797946; 543689, 2798405; 

543750, 2799468; 543726, 2799940; 

543689, 2800535; 543343, 2800736; 

542783, 2800715; 542331, 2800865; 

541727, 2801212; 541556, 2801356; 

541478, 2801759; 541479, 2802493; 

541666, 2802977; 542234, 2803313; 

542611, 2803670; 542775, 2803928; 

543425, 2804034; 544003, 2804037; 

544423, 2804027; 544605, 2804337; 

544618, 2804843; 544595, 2805350; 

544742, 2805626; 545170, 2805930; 

545889, 2805999; 546623, 2805929. 

(iii) Note: Map of Unit 5 is provided 

at paragraph (11)(iii) of this entry. 

(10) Unit 6: Subpopulation E. 

(i) General description: Unit 6 

consists of 22,278 ac (9,016 ha) of marl 

prairie habitat that lies within 

Everglades National Park in central 

Miami-Dade County. 

(ii) Coordinates: From the Pahayokee 

Lookout Tower USGS 1:24,000 

quadrangle map, Florida, land and 

water bounded by the following UTM 

Zone 17 NAD 83 coordinates (E, N): 

521841, 2816533; 525940, 2820239; 

525968, 2820266; 526694, 2820741; 

527084, 2820978; 527388, 2821080; 

527374, 2821600; 527360, 2822148; 

527457, 2822748; 527735, 2822906; 

528070, 2823117; 528417, 2823848; 

529028, 2824134; 529238, 2824841; 

529250, 2825333; 529197, 2826539; 

529735, 2827183; 530668, 2827160; 

531953, 2826965; 532774, 2826835; 

533193, 2826031; 533510, 2825530; 

533777, 2825195; 534094, 2824694; 

533885, 2824015; 533544, 2823558; 

533230, 2823045; 533211, 2822307; 

533415, 2821672; 533623, 2821174; 

534292, 2820473; 534774, 2819968; 

534844, 2819501; 535075, 2818811; 

535283, 2818368; 534879, 2817556; 

534463, 2817375; 533609, 2817259; 

531442, 2817339; 530965, 2816913; 

530377, 2816462; 529199, 2816545; 

528179, 2816378; 527947, 2815864; 

527689, 2815432; 527085, 2815447; 

526289, 2815439; 525570, 2815237; 

525284, 2814779; 525270, 2814177; 

525195, 2813357; 525067, 2812648; 

523941, 2812621; 523173, 2812640; 

522612, 2813283; 521991, 2813682; 

521696, 2813963; 521545, 2814542; 

521562, 2815253; 521603, 2815772; 

521841, 2816533. 

(iii) Note: Map of Unit 6 is provided at 

paragraph (11)(iii) of this entry. 

(11) Unit 7: Subpopulation F. 

(i) General description: Unit 7 

consists of 4,958 ac (2,006 ha) of marl 

prairie habitat that lies along the eastern 

boundary of Everglades National Park in 

central Miami-Dade County. 

(ii) Coordinates: From the Grossman 

Hammock USGS 1:24,000 quadrangle 

map, Florida, land and water bounded 

by the following UTM Zone 17 NAD 83 

coordinates (E, N): 541235, 2829890; 

541864, 2829822; 542679, 2829488; 

542727, 2827880; 542685, 2826187; 

542780, 2825068; 542893, 2823965; 

542791, 2823409; 542348, 2823192; 

541263, 2823219; 540481, 2823430; 

540440, 2823903; 539993, 2824245; 

539241, 2824264; 538593, 2824996; 

538791, 2825899; 539239, 2826324; 

539702, 2827361; 539928, 2828001; 

540356, 2829021; 540489, 2829454; 

540691, 2829833; 541235, 2829890. 

(iii) Note: Map of Units 3, 4, 5, 6, and 7 

(Map 2) follows: 

BILLING CODE 4310–55–P 


rwilkins on PROD1PC63 with PROPOSAL_2
64002 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 

* * * * * 

Dated: October 19, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–8930 Filed 10–30–06; 8:45 am] 

BILLING CODE 4310–55–C 


rwilkins on PROD1PC63 with PROPOSAL_2EP31OC06.031</GPH>