22938 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

State and location Community

No.

Effective date authorization/cancellation of

sale of flood insurance in community

Current effective

map date

Date certain

Federal assistance no longer

available in special flood hazard

areas

Region III

Pennsylvania:

Bern, township of, Berks County .......... 421050 March 25, 1974, Emerg., November 19,

1980, Reg. May 21, 2001, Susp.

......do ............... Do.

Heidelberg, township of, Berks County 421069 March 7, 1977, Emerg., May 3, 1990, Reg.

May 21, 2001, Susp.

......do ............... Do.

Leesport, borough of, Berks County .... 420138 December 26, 1973, Emerg., May 16,

1977, Reg. May 21, 2001, Susp.

......do ............... Do.

Marion, township of, Berks County ...... 421079 October 28, 1975, Emerg., January 2,

1981, Reg. May 21, 2001, Susp.

......do ............... Do.

Muhlenberg, township of, Berks County.420144 March 9, 1973, Emerg., September 1,

1977, Reg. May 21, 2001, Susp.

......do ............... Do.

Ontelaunee, township of, Berks County 420966 September 5, 1973, Emerg., June 1, 1977,

Reg. May 21, 2001, Susp.

......do ............... Do.

Spring, township of, Berks County ....... 421108 June 27, 1974, Emerg., April 18, 1983,

Reg. May 21, 2001, Susp.

......do ............... Do.

Tulpehocken, township of, Berks

County.

421115 April 19, 1978, Emerg., August 4, 1988,

Reg. May 21, 2001, Susp.

......do ............... Do.

Wyomissing, borough of, Berks County 421375 August 28, 1974, Emerg., April 18, 1983,

Reg. May 21, 2001, Susp.

Region V

Illinois: Winnebago, unincorporated areas .. 170720 February 16, 1973, Emerg., November 19,

1980, Reg. May 21, 2001, Susp.

Region VII

Kansas: Augusta, city of, Butler County ...... 200038 June 25, 1975, Emerg., August 15, 1980,

Reg. May 21, 2001, Susp.

Region VIII

Colorado:

Durango, city of, La Plata County ........ 080099 April 30, 1974, Emerg., January 17, 1979,

Reg. May 21, 2001, Susp.

......do ............... Do.

La Plata County, unincorporated areas 080097 December 12, 1974, Emerg., December

15, 1981, Reg. May 21, 2001, Susp.

......do ............... Do.

Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp—Suspension.

Dated: April 25, 2001.

Margaret E. Lawless,

Acting Executive Associate Director for

Mitigation.

[FR Doc. 01–11363 Filed 5–4–01; 8:45 am]

BILLING CODE 6718–05–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG14

Endangered and Threatened Wildlife

and Plants; Final Determination of

Critical Habitat for the Great Lakes

Breeding Population of the Piping

Plover

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat pursuant to the

Endangered Species Act (Act) of 1973,

as amended for the Great Lakes breeding

population of the piping plover. The

Great Lakes breeding population of the

piping plover is listed as an endangered

species under the Act. A total of

approximately 325 km (201 mi) of Great

Lakes shoreline (extending 500 m (1640

ft) inland) in 26 counties in Minnesota,

Wisconsin, Michigan, Illinois, Indiana,

Ohio, Pennsylvania, and New York, is

designated as critical habitat for the

Great Lakes population of the piping

plover. The total length of designated

shoreline is divided among 35 separate

critical habitat units.

Section 7 of the Act requires Federal

agencies to ensure that actions they

authorize, fund, or carry out are not

likely to destroy or adversely modify

critical habitat. As required by section 4

of the Act, we considered economic and

other relevant impacts prior to making

a final decision on what areas to

designate as critical habitat.

EFFECTIVE DATE: This final rule is

effective June 6, 2001.

ADDRESSES: The complete

administrative record for this rule,

including comments and materials

received, as well as supporting

documentation used in the preparation

of this final rule, will be available for

public inspection, by appointment,

during normal business hours at the

U.S. Fish and Wildlife Service, Bishop

Henry Whipple Federal Building, 1

Federal Drive, Fort Snelling, MN 55111.

FOR FURTHER INFORMATION CONTACT:

Laura J. Ragan at the above address

(telephone 612/713–5157; facsimile

612/713–5292). TTY users may contact

us through the Federal Relay Service at

1–800–877–8339.

SUPPLEMENTARY INFORMATION:

Background

The piping plover (Charadrius

melodus), named for its melodic mating

call, is a small, pale-colored North

American shorebird. It weighs 43–63

grams (1.5–2.5 ounces) and is 17–18

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

(Haig 1992). Its light, sand-colored

plumage blends in well with the sandy

beach, its primary habitat. Plumage and

leg color help distinguish this bird from

other plover species. During the

breeding season, the legs are bright

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22939

orange, and the short, stout bill is

orange with a black tip. There are two

single dark bands, one around the neck

and one across the forehead between the

eyes. The female’s neck band is often

incomplete and is usually thinner than

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

bill turns black, the legs fade to pale

orange, and the black plumage bands on

the head and neck are lost. Chicks have

speckled gray, buff, and brown down,

black beaks, pale orange legs, and a

white collar around the neck. Juveniles

resemble wintering adults and obtain

their adult plumage the spring after they

fledge (USFWS 1994).

Dominant plants within Great Lakes

piping plover habitat include marram

grass (Ammophila brevigulata), beach

wormwood (Artemesia campestris),

silverweed (Potentilla anserina), Lake

Huron tansy (Tanacetum huronense),

pitcher’s thistle (Cirsium pitcheri),

beach pea (Lathyrus maritimus var.

glaber), sea rocket (Cakile edentula),

sedges (Carex spp.), goldenrods (Solidago

spp.), sand cherry (Prunus pumila),

bearberry (Arctostaphylus uva-ursi),

creeping juniper (Juniper horizontalis),

cottonwood (Populus deltoides), and

willow (Salix spp.).

The breeding range of the piping

plover extends throughout the northern

Great Plains, the Great Lakes, and the

Atlantic Coast in the United States and

Canada. Based on this distribution,

three breeding populations of piping

plovers have been described: the

Northern Great Plains population, the

Great Lakes population, and the Atlantic

Coast population.

The northern Great Plains breeding

range extends from southern Alberta,

northern Saskatchewan, and southern

Manitoba, south to eastern Montana, the

Dakotas, southeastern Colorado, Iowa,

Minnesota, and Nebraska, and east to

Lake of the Woods in north-central

Minnesota. The majority of the United

States pairs in this population are in the

Dakotas, Nebraska, and Montana

(USFWS 1994). Occasionally, Great

Plains birds nest in Oklahoma and

Kansas. On the Atlantic coast, piping

plovers nest from Newfoundland,

southeastern Quebec, and New

Brunswick to North Carolina. Sixtyeight percent of all nesting pairs breed

in Massachusetts, New York, New

Jersey, and Virginia (USFWS 1999). In

the Great Lakes watershed, piping

plovers formerly nested throughout

much of the north-central United States

and south-central Canada on beaches in

Illinois, Indiana, Michigan, Minnesota,

Ohio, Pennsylvania, New York,

Wisconsin, and in Ontario, Canada.

Currently they are limited to northern

Michigan and, recently, at one site in

northern Wisconsin.

Piping plovers are migratory birds.

They leave the breeding grounds

between late July and early September

and head for their wintering grounds,

where they spend more than eight

months of the year. Although the

breeding ranges of the three piping

plover populations are separate, their

wintering ranges overlap and extend

along the Atlantic and Gulf Coasts from

North Carolina to Mexico and into the

West Indies and Bahamas. Resightings

of color-banded birds from the Great

Lakes breeding population have

occurred along the coastlines of North

and South Carolina, Georgia, Florida,

Louisiana, and Texas.

Pre-settlement populations of piping

plovers in the Great Lakes are estimated

at 492–682 breeding pairs (Russell

1983), although these estimates may be

high (F. Cuthbert, professor, University

of Minnesota, Minneapolis, pers.

comm., 2000). In recent decades, piping

plover populations have declined

drastically, especially in the Great

Lakes, coinciding with industrial

development, urbanization, and

increased recreational pressures. In

1973, the piping plover was placed on

the National Audubon Society’s Blue

List of threatened species. By that time,

piping plovers had been extirpated from

beaches in Illinois, Indiana, Ohio, New

York, Pennsylvania, and Ontario, and

only a few birds were continuing to nest

in Wisconsin (Russell, 1983). By 1977,

the Great Lakes breeding population had

decreased to 31 nesting pairs (Lambert

and Ratcliff 1981) and by the time the

species was listed under the Endangered

Species Act in 1985, the Great Lakes

breeding population had dwindled to

only 17 breeding pairs, and the breeding

areas had been reduced from sites in

eight States to only portions of northern

Michigan.

Since the species was listed, the Great

Lakes breeding population has gradually

increased and expanded its range within

Michigan and into Wisconsin. In 1999,

31 pairs of piping plovers nested on the

Great Lakes shoreline of northern

Michigan and 1 pair nested in northern

Wisconsin (Stucker and Cuthbert, 1999).

In 2000, 30 pairs were documented, all

in northern Michigan (Stucker et al.

2000). The slow population increase

over the past 15 years has been aided by

intense State, Tribal, Federal, and

private conservation actions directed at

the protection of the piping plover.

Activities such as habitat surveys, beach

restoration, public education, habitat

protection and enhancement, and the

protection of nests from predators and

disturbance through the use of predator

exclosure fencing have all contributed

to the improving status of the Great

Lakes piping plover.

Great Lakes piping plovers nest on

shoreline and island sandy beaches with

sparse vegetation and the presence of

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

called cobble. Piping plovers spend 3 to

4 months a year on the breeding

grounds. Nesting in the Great Lakes

region begins in early to mid-May.

Plovers lay 3 to 4 eggs in a small

depression they scrape in the sand

among the cobblestones and are,

therefore, very difficult to see. Both

sexes are involved in incubating the

eggs, which hatch in about 28 days.

Young plovers can walk almost as soon

as they hatch, but remain vulnerable to

predation and disturbance for another

21–30 days until they are able to fly.

Nesting piping plovers are highly

susceptible to disturbance by people

and pets on the beach. Human

disturbance disrupts adult birds’ care of

their nests and young and may inhibit

incubation of eggs (USFWS 1994).

Furthermore, adults may leave the nest

to lure away an intruder, leaving the

eggs or chicks vulnerable to predators

and exposure to weather. Ultimately,

disturbance may lead to the

abandonment of nests (USFWS 1994).

As a result of disturbance and other

natural and human-caused factors such

as high water levels, flooding, eroding

beaches, and beach-front commercial,

recreational, and residential

development, reproduction of Great

Lakes piping plovers has been severely

affected, resulting in perilously low

numbers of nesting plovers (USFWS

1994).

This rule applies only to the breeding

range of the Great Lakes population in

the United States.

Previous Federal Actions

On December 30, 1982, we published

a notice of review in the Federal

Register (47 FR 58454) that identified

vertebrate animal taxa being considered

for addition to the List of Threatened

and Endangered Wildlife. We included

the piping plover in that review list as

a Category 2 Candidate species,

indicating that we believed the species

might warrant listing as threatened or

endangered, but that we had insufficient

data to support a proposal to list at that

time. Subsequent review of additional

data indicated that the piping plover

warranted listing, and in November,

1984, we published a proposed rule in

the Federal Register (49 FR 44712) to

list the piping plover as endangered in

the Great Lakes watershed and as

threatened along the Atlantic Coast, the

Northern Great Plains, and elsewhere in

22940 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

their range. The proposed listing was

based on the decline of the species and

the existing threats, including habitat

destruction, disturbance by humans and

pets, high levels of predation, and

contaminants.

After a review of the best scientific

data available and all comments

received in response to the proposed

rule, we published the final rule (50 FR

50726) on December 11, 1985, listing

the piping plover as endangered in the

Great Lakes watershed (Illinois, Indiana,

Michigan, northeastern Minnesota, New

York, Ohio, Pennsylvania, Wisconsin,

and Ontario, Canada) and as threatened

along the Atlantic coast (Quebec,

Newfoundland, Maritime Provinces,

and States from Maine to Florida), and

in the Northern Great Plains region

(Iowa, northwestern Minnesota,

Montana, Nebraska, North Dakota,

South Dakota, Alberta, Manitoba, and

Saskatchewan). All piping plovers on

migratory routes outside of the Great

Lakes watershed or on their wintering

grounds are considered threatened. We

did not designate critical habitat for the

species at that time.

After 1986, we focused our efforts on

recovery by forming two recovery teams,

the Great Lakes/Northern Great Plains

Piping Plover Recovery Team and the

Atlantic Coast Piping Plover Recovery

Team. In 1988 the Great Lakes and

Northern Great Plains (USFWS 1988b)

and Atlantic Coast (USFWS 1988a)

Recovery Plans were published. In 1994,

the Great Lakes/Northern Great Plains

Recovery Team began to revise the

Recovery plan for these two populations

(USFWS 1994). The 1994 draft included

updated information on the species and

was distributed for public comment.

Subsequently, we decided that the

recovery of these two inland

populations would benefit from separate

recovery plans. Individual recovery

plans for the Great Lakes and Northern

Great Plains populations are presently

under development.

The final listing rule for the piping

plover indicated that designation of

critical habitat was not determinable.

Thus, designation was deferred. No

further action was subsequently taken to

designate critical habitat for piping

plovers. On December 4, 1996,

Defenders of Wildlife (Defenders) filed a

suit (Defenders of Wildlife and Piping

Plover v. Babbitt, Case No. 96CV02965)

against the Department of the Interior

and the Service over the lack of

designated critical habitat for the Great

Lakes population of the piping plover.

Defenders filed a similar suit (Defenders

of Wildlife and Piping Plover v. Babbitt,

Case No. 97CV000777) for the Northern

Great Plains piping plover population in

1997. During November and December

1999, and January 2000, we began

negotiating a schedule for piping plover

critical habitat decisions with

Defenders. On February 7, 2000, before

the settlement negotiations were

concluded, the United States District

Court for the District of Columbia issued

an order directing us to publish a

proposed critical habitat designation for

nesting and wintering areas of the Great

Lakes population of the piping plover

by June 30, 2000, and for nesting and

wintering areas of the Northern Great

Plains piping plover population by May

31, 2001. A subsequent order, after

requesting the court to reconsider its

original order relating to final critical

habitat designation, directs us to finalize

the critical habitat designations for the

Great Lakes population by April 30,

2001, and for the Northern Great Plains

population by March 15, 2002. For

biological and practical reasons, we

chose to propose critical habitat for the

Great Lakes breeding birds and for all

wintering birds in two separate rules

published concurrently.

On July 6, 2000, we published a

proposed determination for the

designation of critical habitat for the

Great Lakes breeding population of the

piping plover (65 FR 41812). A total of

approximately 305 km (189 mi)

(extending 1 km (0.6 mi) inland) was

proposed as critical habitat for this

piping plover population in 27 counties

in Minnesota, Wisconsin, Michigan,

Illinois, Indiana, Ohio, Pennsylvania,

and New York. The comment period

was open until September 5, 2000.

During this 60-day comment period, we

held seven public hearings (Ashland,

Wisconsin, on July 17; Green Bay,

Wisconsin, on July 18; Newberry,

Michigan, on July 19; Traverse City,

Michigan, on July 20; Indiana Dunes,

Indiana, on July 24; Cleveland, Ohio, on

July 25; and Watertown, New York, on

July 27). On September 19, 2000, we

published a document (65 FR 56530)

announcing the reopening of the

comment period on the proposal to

designate critical habitat for the Great

Lakes breeding population of the piping

plover and a notice of the availability of

the draft economic analysis on the

proposed determination. Our intention

was for this comment period to be

reopened for 60 days, but the document

stated that the comment period closed

on October 19, 2000, or 30 days.

Therefore, on September 28, 2000, we

published a document (65 FR 58258)

correcting the closing date of the

reopened comment period to November

20, 2000.

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 consideration or

protections; and (ii) specific areas

outside the geographic 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’’ means the use

of all methods and procedures that are

necessary to bring an endangered or a

threatened species to the point at which

listing under the Act is 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 also requires

conferences on Federal actions that are

likely to result in the destruction or

adverse modification of proposed

critical habitat. In our regulations at 50

CFR 402.02, we define destruction or

adverse modification as ‘‘. . . the direct

or indirect alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species. Such alterations include,

but are not limited to, alterations

adversely modifying any of those

physical or biological features that were

the basis for determining the habitat to

be critical.’’ Aside from the added

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat. Critical habitat

designation would not afford any

additional protections under the Act

against activities on private or other

non-Federal lands that do not involve a

Federal nexus because the requirement

for consultation under section 7 of the

Act does not apply to activities on these

types of lands.

In order to be included in a critical

habitat designation, the habitat must

first be ‘‘essential to the conservation of

the species.’’ Critical habitat

designations identify, based on the best

scientific and commercial data

available, habitat areas that provide

essential life cycle needs of the species

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

primary constituent elements, as

defined at 50 CFR 424.12(b)).

Within the geographic area occupied

by the species, we will designate only

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22941

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species

(primary constituent elements). We will

not speculate about what areas might be

found to be essential if better

information became available, or what

other areas may become essential over

time. If the information available at the

time of designation does not show that

an area provides essential life cycle

needs of the species, then the area

should not be included in the critical

habitat designation. Within the

geographic area occupied by the species,

we will not designate areas that do not

now have the primary constituent

elements, as defined at 50 CFR

424.12(b), that provide essential life

cycle needs of the species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by the species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species’’

(50 CFR 424.12(e)). Accordingly, unless

the best scientific and commercial data

demonstrates that the conservation

needs of the species require designation

of critical habitat outside of occupied

areas, we will not designate critical

habitat in areas outside the geographic

area occupied by the species. However,

if unoccupied areas are essential to the

recovery of the species, they may be

designated as critical habitat.

The Service’s policy on Information

Standards Under the Endangered

Species Act, published in the Federal

Register on July 1, 1994 (59 FR 34271),

provides criteria, establishes

procedures, and provides guidance to

ensure that decisions made by the

Service represent the best scientific and

commercial data available. It requires

Service biologists, to the extent

consistent with the Act and with the use

of the best scientific and commercial

data available, to use primary and

original sources of information as the

basis for recommendations to designate

critical habitat. When determining

which areas are critical habitat, a

primary source of information should be

the listing package for the species.

Additional information may be obtained

from a recovery plan, articles in peerreviewed journals, conservation plans

developed by States and counties,

scientific status surveys and studies,

and biological assessments or other

unpublished materials (i.e. gray

literature).

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, it should be

understood that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

Areas outside the critical habitat

designation will continue to be subject

to conservation actions that may be

implemented under section 7(a)(1) and

to the regulatory protections afforded by

the section 7(a)(2) jeopardy standard

and the section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. Federally funded or assisted

projects affecting listed species outside

their designated critical habitat areas

may still result in jeopardy findings in

some cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Methods

In determining areas that are essential

to conserve the Great Lakes breeding

population of the piping plover, the best

scientific and commercial data available

included information solicited from

knowledgeable biologists and available

information pertaining to habitat

requirements of the species. In an effort

to map areas essential to the

conservation of the species, we used

data of known piping plover breeding

locations, records of historical nesting

sites, International Census data, and

those areas that were identified in the

1988 recovery plan and 1994 draft

recovery plan as essential for the

recovery of the population. We have

chosen the 35 critical habitat units in

order to protect adequate habitat to meet

the recovery criteria, contained in the

recovery plan and draft recovery plan,

of 100 breeding pairs in Michigan and

50 breeding pairs in the other Great

Lakes States combined. In addition,

information provided in comments on

the proposed designation and draft

economic analysis were evaluated and

taken into consideration in the

development of this final designation.

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 are

required to base critical habitat

determinations on the best scientific

and commercial data available. We also

are required to consider those physical

and biological features that are essential

to the conservation of the species and

that may require special management

considerations and protection. Such

features 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 of

offspring; and habitats that are protected

from disturbance or are representative of

the historical geographical and

ecological distributions of a species.

The primary constituent elements for

the Great Lakes breeding population of

the piping plover are those habitat

components that are essential for

successful foraging, nesting, rearing of

young, intra-specific communication,

genetic exchange, roosting, dispersal, or

sheltering.

The primary constituent elements

required to sustain the Great Lakes

breeding population of the piping

plover are found on Great Lakes islands

and mainland shorelines that support

open, sparsely vegetated sandy habitats,

such as sand spits or sand beaches, that

are associated with wide, unforested

systems of dunes and inter-dune

wetlands. In order for habitat to be

physically and biologically suitable for

piping plovers, it must have a total

shoreline length of at least 0.2 km (0.12

mi) of gently sloping, sparsely vegetated

(less than 50 percent herbaceous and

low woody cover) sand beach with a

total beach area of at least 2 hectares

(ha) (5 acres (ac)).

Appropriately sized sites must also

have areas of at least 50 meters (m) (164

feet (ft)) in length where (1) the beach

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

is protective cover for nests and chicks,

and (3) the distance to the treeline (from

the normal high water line to where the

forest begins) is more than 50 m (164 ft).

Beach width is defined as the distance

from the normal high water line to the

foredune (a low barrier dune ridge

immediately inland from the beach)

edge, or to the sand/vegetation

boundary in areas where the foredune is

absent. The beach width may be

narrower than 7 m (23 ft) if appropriate

sand and cobble areas of at least 7 m (23

ft) exist between the dune and the

treeline.

Protective cover for nests and chicks

consists of small patches of herbaceous

vegetation, cobble (stones larger than 1

cm (0.4 inches (in)) diameter), gravel

(stones smaller than 1 cm (0.4 in)

22942 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

diameter), or debris such as driftwood,

wrack, root masses, or dead shrubs.

These areas must have a low level of

disturbance from human activities and

from domestic animals. As the nesting

season progresses, the level of

disturbance tolerated by piping plovers

increases. A lower level of disturbance

is required at the beginning of the

nesting period during nest site selection,

egg laying, and incubation. Beach

activities that may be associated with a

high level of disturbance include, but

are not limited to, walking pets off

leash, loud noise, driving all terrain

vehicles (ATVs), or activities that

significantly increase the level of people

using the beach. The level of

disturbance is relative to the proximity

to the nest, intensity, and frequency of

these and other similar activities.

The dynamic ecological processes that

create and maintain piping plover

habitat are also important primary

constituent elements. These geologically

dynamic lakeside regions are controlled

by processes of erosion, accretion, plant

succession, and lake-level fluctuations.

The integrity of the habitat depends

upon regular sediment transport

processes, as well as episodic, highmagnitude storm events. By their

nature, Great Lakes shorelines are in a

constant state of change; habitat features

may disappear, or be created nearby.

The critical habitat boundaries reflect

these natural processes and the dynamic

character of Great Lakes shorelines.

Criteria Used To Identify Critical

Habitat

All of the designated critical habitat

areas are considered essential to the

conservation of the Great Lakes breeding

population of the piping plover as

described in the approved 1988

Recovery Plan for the Great Lakes and

Northern Great Plains Piping Plover

(Plan) and the 1994 Draft Revised

Recovery Plan for the Great Lakes

Piping Plover. The designation

encompasses those areas considered

necessary to achieve the recovery goals

of 150 breeding pairs (USFWS 1988b,

1994) for this population.

To identify critical habitat units, we

first examined those sites identified as

‘‘essential habitat’’ in the approved

Recovery Plan and draft revised

Recovery Plan. We began by evaluating

those essential habitat areas that are

currently (at least once during the past

5 years) or were recently (in the last 5

to 15 years) occupied by piping plovers

in the Great Lakes. Through site visits

and consultation with local habitat

experts, we determined which of these

sites still contain the primary

constituent elements. Piping plover

occupied habitat in the Great Lakes has

declined from historical occupation of

more than 70 sites in eight States to

approximately 32 sites in two States

(Wemmer 2000). The currently occupied

sites and recently occupied (since 1985)

sites in Michigan may have the capacity

to support an estimated 56 to 136

breeding pairs (Wemmer 2000). Because

of this severe reduction in range and

numbers of piping plovers, we have

determined it is essential to the

conservation of this species to include

all currently occupied habitat and all

recently occupied habitat that still

contains the primary constituent

elements in this critical habitat

designation.

As we proceed with recovery efforts,

expansion of the present small

population will require more habitat

than is currently occupied by piping

plovers along the Great Lakes (Wemmer

2000, USFWS 1988b, 1994). In an effort

to protect sufficient habitat to allow for

the expansion of the species, our second

step was to evaluate the essential habitat

areas outlined in the Recovery Plan that

are documented as historical piping

plover habitat. In addition to evaluating

those areas identified by the Recovery

Plan as essential habitat, we solicited

information from habitat experts on

areas that contain the primary

constituent elements and that would

provide suitable piping plover nesting

habitat. Based upon consultation with

Great Lakes piping plover habitat

experts, we determined which

historically occupied sites contain the

primary constituent elements and are

suitable for supporting nesting piping

plovers. We designated historically

occupied habitat in the Great Lakes

watershed (in the United States) that

still contain the primary constituent

elements.

Much known historical habitat in the

Great Lakes region has been destroyed

or altered in such ways that it can no

longer support piping plovers (Wemmer

2000, USFWS 1988b). As a result,

suitable habitat areas that are currently/

recently occupied, or that were

documented to be historically occupied,

are not sufficient to meet the

conservation goals outlined in the

approved Recovery Plan and draft

revised Recovery Plan. Thus, as a final

step, we evaluated those essential

habitat areas identified in the Recovery

Plan where occupation has not been

documented, but habitat features similar

to currently occupied sites occur. To

reach the minimum amount of habitat

sufficient to meet the recovery plan

goals, we designated those areas that are

known to contain the primary

constituent elements as critical habitat.

Critical habitat designation is effective

year-round, even if the primary

constituent elements are temporarily

obscured by snow, ice, or other

temporary features.

In defining critical habitat boundaries,

it was not possible to exclude all

existing human-made features and

structures, such as buildings, roads,

marinas, piers, parking lots, bridges,

boat ramps, lighthouses, and other such

human-made features, within the area

designated. These features do not

contain most or all of the primary

constituent elements and thus are not

considered to be critical habitat despite

their being within the geographic

boundaries. Federal actions limited to

those features, therefore, would not

trigger a section 7 consultation, unless

they affect the species and/or primary

constituent elements within a critical

habitat unit.

In summary, in determining areas that

are essential to the conservation of the

Great Lakes breeding population of the

piping plover, we used the best

scientific and commercial information

available to us. The critical habitat areas

described below constitute our best

assessment of areas needed for the

species’ conservation and recovery.

Critical Habitat Designation

At this time, the critical habitat units

discussed below are our best appraisal

of areas needed for the conservation of

the Great Lakes breeding population of

the piping plover. Very little suitable

piping plover habitat remains in the

Great Lakes region, and all the areas

identified here are essential for the

recovery of the species because these

areas represent the habitat necessary to

achieve the recovery goal of 100

breeding pairs in Michigan and 50

breeding pairs in the other Great Lakes

States combined. Critical habitat

designations may be subsequently

revised if new information becomes

available after this final rule is

published. Any additional areas of

critical habitat will be designated, or

other changes made to this designation,

only after a formal proposal and

opportunity for public comment.

The approximate length of proposed

critical habitat shoreline identified by

land ownership is shown in Table 1.

Critical habitat includes Great Lakes

piping plover habitat throughout the

species’ breeding range in the United

States. Lands proposed as critical

habitat are under private, State,

municipal, Tribal, and Federal

ownership, with Federal lands

including lands managed by the

National Park Service, U.S. Forest

Service, U.S. Coast Guard, U.S. Army

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22943

Corp of Engineers, and by us. Estimates reflect the total area within critical

habitat unit boundaries.

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

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

Ownership

km shoreline (% within each State)

Federal State Municipal Private Other Total

Michigan ........................ 40.9 (18.3) 107.9 (48.1) 6.9 (3.1) 66.1 (29.1) 1.6 TNC (0.7) 223.4

Minnesota ...................... 0 0.2 (100) 0 0 0 0.2

Wisconsin ...................... 18.1 (40.0) 8.7 (19.2) 4.4 (9.7) 9.0 (19.9) 5.1 Tribal (11.2) 45.3

Illinois ............................ 0 4.7 (46.1) 1.3 (12.7) 4.2 (41.2) 0 10.2

Indiana .......................... 2.9 (36.7) 5.0 (63.3) 0 0 0 7.9

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

Pennsylvania ................. 0 6.0 (100) 0 0 0 6.0

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

Total (% of) ............ 61.9 (19.1) 146.9 (45.2) 12.6 (3.9) 95.9 (29.5) 7.1 (2.2) 324.4

Critical habitat has been designated in

35 units in the Great Lakes region. All

critical habitat unit boundaries extend

500 meters (1640 feet) inland from the

normal high water line, although the

inland edge of the area that contains the

primary constituent elements may vary

depending on the extent of the open

dune system. This area is needed to

provide foraging habitat as well as

incorporate cobble pans between the

dunes where piping plovers

occasionally nest. A brief description of

each unit and reasons for designating it

as critical habitat are presented below

and in Table 2. More detailed

descriptions are included with the

maps.

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

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

Habit unit Location name County

USGS 7.5′ quad

map(s)

1:24,000 scale

Land ownership 1 Plover use 2

Est.

length

(km)

Whitefish Point to Grand Marais—

MI–1 ............... Whitefish Point ........... Chippewa ....... Whitefish Point (1951) Federal (USFWS), private.Recent past, transient 2.5

Vermilion/

Weatherhogs Beach.

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

Crisp Point ................. Luce ............... Betsy Lake North

(1968).

Municipal private ........ Recent past ................ 1.0

Little Lake Harbor ...... Luce ............... Betsy Lake North

(1968).

Private ........................ Recent past ................ 1.6

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

East (1968);

Muskallonge Lake

West (1968).

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

Grand Marais Inner

Harbor and Lonesome Point.

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

Grand Marais Superior Beach.Alger .............. Grand Marais (1968) Multiple private, Federal (NPS).Current ....................... 1.2

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

(1964, photorevised

1975).

Federal (USFS), private.Current ....................... 2.0

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

Mackinac.

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

Waugoshance Point to beach west of McCort Hill—

MI–4 ............... Waugoshance Point

Temperance and

Crane Islands.

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

photoinspected

1975),

Waugoshance Island (provisional

1982).

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

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

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

Sturgeon Bay Point .... Emmet ........... Bliss (1982) Cross Village (1982).Multiple private ........... Current ....................... 2.4

22944 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

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

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

Habit unit Location name County

USGS 7.5′ quad

map(s)

1:24,000 scale

Land ownership 1 Plover use 2

Est.

length

(km)

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

Beach West McCort

Hill.

Emmet ........... Cross Village (1982) .. Multiple private ........... Current ....................... 1.4

Sevenmile Point to Thorneswift Nature Preserve—

MI–5 ............... Sevenmile Point ......... Emmet ........... Forest Beach (1983

provisional).

Multiple private ........... Suitable ...................... 0.5

Thorneswift Nature

Preserve.

Emmet ........... Forest Beach (1983

provisional).

Multiple private ........... Current ....................... 0.4

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

provisional).

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

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

Charlevoix (1983).

Municipal .................... Suitable ...................... 1.1

MI–8 ............... Fisherman’s Island

State Park.

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

Indian Point to McCauley’s Point, Beaver Island—

MI–9 ............... Donegal Bay-Beaver

Island.

Charlevoix ...... Garden Island West

(1980), Beaver Island North (1986).

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

McCauley’s PointBeaver Island.Charlevoix ...... Beaver Island North

(1986).

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

MI–10 ............. Greenes Bay-Beaver

Island.

Charlevoix ...... Beaver Island North

(1986).

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

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

Cathead Bay to Christmas Cove—

MI–12 ............. Cathead Bay .............. Leelanau ........ Northport (provisional

1983).

State/private ............... Current ....................... 2.6

Cathead Point to

Christmas Cove.

Leelanau ........ Northport/Northport

NW (provisional

1983).

Private ........................ Suitable ...................... 2.5

MI–13 ............. South Fox Island ........ Leelanau ........ South Fox Island (provisional 1986).State ........................... Historical .................... 6.0

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

(provisional 1983).

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

MI–15 ............. Crystal Run to Empire

Beach.

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

Glen Haven (1983),

Empire (1983).

Municipal, Federal ..... Suitable ...................... 18.6

Esch Road to Sutter Road and Point Betsie—

MI–16 ............. Platte Bay and Platte

River Point and

beach.

Benzie ............ Empire (1983), Beulah

(provisional 1983).

Federal (NPS) ............ Suitable/current .......... 13.8

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

managed, private.

Historical .................... 4.8

MI–17 ............. Nordhouse Dunes to

Ludington.

Mason ............ Manistee NW (provisional 1982), Hamlin Lake (1982).Federal (USFS), State Transient, historical .... 13.4

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

(1972,

photoinspected

1980).

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

MI–19 ............. Lake Superior State

Forest, St. Vital

Point.

Chippewa ....... Albany Island (1964,

photoinspected

1976), DeTour Village (1964).

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

Lighthouse Point to Cordwood Point—

MI–20 ............. Lighthouse Point ........ Cheboygan .... Cheboygan (1982) ..... State ........................... Recent past ................ 1.4

Grass Bay .................. Cheboygan .... Cordwood Point

(1982).

TNC preserve ............ Historical transient ..... 1.6

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22945

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

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

Habit unit Location name County

USGS 7.5′ quad

map(s)

1:24,000 scale

Land ownership 1 Plover use 2

Est.

length

(km)

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

Moltke (1971).

State ........................... Suitable ...................... 3.7

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

(1971).

State, private .............. Suitable ...................... 2.8

MI–23 ............. Tawas Point State

Park.

Iosco .............. East Tawas (1989) .... State ........................... Suitable, transient ...... 2.0

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

photorevised 1969).

State, private .............. Recent past ................ 0.6

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

photorevised 1975),

Superior (1954,

photorevised 1983).

Municipal, Federal

(USACE).

Historical .................... 4.0

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

photorevised 1975),

Chequamegon Point

(1964, photorevised

1975), Long Island

(1964).

Federal (NPS) tribal

(Bad River), private.

Current ....................... 25.3

WI–3 ............... Western Michigan Island.Ashland .......... Michigan Island

(1963).

Federal (NPS) ............ Suitable ...................... 6.5

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

photorevised 1969).

State, municipal ......... Suitable ...................... 1.5

WI–5 ............... Point Beach State

Forest.

Manitowoc ...... Two Rivers (1978) ..... State ........................... Suitable ...................... 8.0

IL–1 ................ Illinois Beach State

Park to Waukegan

Beach.

Lake ............... Zion, Ill. (1993), Waukegan (1993).Municipal, State, private.Historical .................... 10.2

IN–1 ................ Indiana Dunes National Lakeshore/Indiana Dunes State

Park.

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

Dunes Acres (1991).

Federal (NPS), State Historical, transient .... 7.9

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

photorevised 1975).

State, private .............. Transient .................... 3.2

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

1992).

State ........................... Historical/suitable ....... 0.8

PA–1 .............. Presque Isle State

Park.

Erie ................ Erie North (1957, revised 1969 and

1975,

photoinspected

1977).

State ........................... Historical, transient .... 6.0

NY–1 .............. Salmon River to Stony

Point.

Oswego, Jefferson.Pulaski (1956),

Ellisburg (1958),

Henderson (1959).

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

1 USACE = U.S. Army Corp of Engineers;NPS = National Park Service;TNC = The Nature Conservancy;USFS = U.S. Forest Service;USFWS

= U.S. Fish and Wildlife Service;USCG = U.S. Coast Guard. 2 Current = used for nesting since 1995; recent past = used for nesting since 1985; historical = used for nesting prior to 1985; transient = recent (since 1990) sightings of piping plovers; suitable = no known record of use but habitat appears suitable for nesting and is within the historic

range of piping plover.

Michigan

Unit MI–1: Whitefish Point to Grand

Marais

This unit encompasses approximately

83.5 km (50 mi) of Lake Superior

shoreline in Chippewa, Luce, and Alger

Counties on the Upper Peninsula of

Michigan. It includes long stretches of

habitat that have been recently used by

piping plovers in addition to areas

currently used by plovers.

Approximately 47 km (29.2 mi) are part

of Muskallonge State Park and Lake

Superior State Forest, approximately 36

km (22.4 mi) are privately owned, and

approximately 0.5 km (0.3 mi) are part

of Whitefish Point National Wildlife

Refuge. This unit also includes a small

area of municipal property at Crisp

Point. This unit extends from just

southwest of Whitefish Point, around

and including the Point, and westward

to the Pictured Rocks National

Lakeshore property boundary, excluding

the area from the junction of Highway

58 and Morris Road to the breakwall

north of the harbor near the former

Coast Guard station in Grand Marais.

Unit MI–2: Pointe Aux Chenes

This unit encompasses approximately

1.7 km (1.1 mi) of Lake Michigan

shoreline in Mackinac County on the

Upper Peninsula of Michigan. It

includes areas that are currently

occupied by piping plovers. The

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

within the Hiawatha National Forest

and is being considered for a Research

and Natural Area. The rest of the unit

(approximately 0.6 km (0.4 mi)) is

privately owned land. This unit extends

from the mouth of the Pointe Aux

22946 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Chenes river to the Hiawatha National

Forest property boundary.

Unit MI–3: Port Inland to Hughes Point

This unit encompasses approximately

3 km (1.8 mi) of Lake Michigan

shoreline in western Mackinac and

eastern Schoolcraft Counties on the

Upper Peninsula of Michigan. It

includes areas that are currently

occupied by piping plovers.

Approximately 0.8 km (0.5 mi) of the

designated shoreline is owned by Port

Inland Stone and Dolomite Quarry and

the remaining 2.2 km (1.4 mi) are part

of the Lake Superior State Forest. This

unit extends from the westernmost

breakwall at the Port Inland Gaging

Station to the mouth of Swan Creek.

Unit MI–4: Waugoshance Point to

McCort Hill Beach

This unit encompasses approximately

32 km (19.2 mi) of Lake Michigan

shoreline in Emmet County, Michigan,

and includes Temperance and

Waugoshance islands. It includes areas

that are currently occupied by piping

plovers and supports about half of the

current Great Lakes piping plover

population. Approximately 8.5 km (5.3

mi) are privately owned and 1 km (0.6

mi) is municipal land (Bliss Township

beach and Cross Village beach). The

remaining 22.5 km (14 mi) are part of

Wilderness State Park. This unit extends

from the junction of the northeast corner

of T39N R5W section 28 and the Lake

Michigan shoreline in Wilderness State

Park, including Waugoshance and

Temperance Islands, to the southwest

boundary of T37N R6W section 5 south

of Cross Village.

Unit MI–5: Sevenmile Point to

Thornswift Nature Preserve

This unit encompasses approximately

7 km (4.3 mi) of Lake Michigan

shoreline in Emmet County, Michigan.

It includes areas of suitable piping

plover nesting habitat and areas that are

currently occupied by piping plovers.

The entire designated area is under

private ownership. It extends from the

junction of the Lake Michigan shoreline

and the northwest boundary of T36N

R6W section 30 to the junction of the

shoreline and the southeast corner of

T35N R6W section 9.

Unit MI–6: Petoskey State Park

This unit encompasses approximately

2 km (1.2 mi) of Lake Michigan

shoreline in Emmet County, Michigan.

It includes areas of historical piping

plover habitat. Approximately 0.7 km

(0.4 mi) is privately owned land and 1.3

km (0.8 mi) are part of Petoskey State

Park. This unit extends from the mouth

of Tannery Creek to Mononaqua Beach.

Unit MI–7: North Point

This unit encompasses approximately

1.1 km (0.7 mi) of Lake Michigan

shoreline in Charlevoix County,

Michigan. It includes areas of suitable

piping plover nesting habitat. The entire

designated area is a city park owned by

the city of Charlevoix. It includes all

Lake Michigan shoreline within T34N

R8W section 14.

Unit MI–8: Fisherman’s Island State

Park

This unit encompasses approximately

1.3 km (0.8 miles) of Lake Michigan

shoreline in Charlevoix County,

Michigan. It includes areas that are

currently occupied by piping plovers.

The entire designated area is within

Fisherman’s Island State Park. This unit

extends from the junction of the line

separating T34N R8W section 31 and

T33N R8W section 6 from the Lake

Michigan shore to the Fisherman’s

Island State Park property boundary at

the end of Lakeshore Drive, including

Fisherman Island.

Unit MI–9: Indian Point to McCauley’s

Point, Beaver Island

This unit encompasses approximately

5 km (3.1 mi) of Lake Michigan

shoreline on Beaver Island in

Charlevoix County, Michigan. It

includes areas that are currently

occupied, as well as areas that have

been recently used by piping plovers.

Approximately 4.4 km (2.7 mi) are

privately owned and 0.6 km (0.4 mi) is

part of Beaver Islands State Wildlife

Research Area. This unit extends from

Indian Point southward to the junction

of the dividing line of T39 N R10W and

T38N R10W and the Lake Michigan

shoreline.

Unit MI–10: Greenes Bay, Beaver Island

This unit encompasses approximately

0.8 km (0.5 mi) of Lake Michigan

shoreline on Beaver Island in

Charlevoix County, Michigan. It

includes areas that have been recently

used by piping plovers. Approximately

0.3 km (0.2 mi) is part of the Beaver

Islands State Wildlife Research Area

and the remaining 0.5 km (0.3 mi) is

privately owned land. This unit

encompasses Greenes Bay on the

western side of Beaver Island.

Unit MI–11: High Island

This unit encompasses approximately

1.8 km (1.1 mi) of Lake Michigan

shoreline on High Island in Charlevoix

County, Michigan. It includes areas that

are currently occupied by piping

plovers. The entire designated area is

part of the Beaver Islands State Wildlife

Research Area. This unit includes all

Lake Michigan shoreline within T39N

R11W section 32 and T38N R11W

section 5 on the western side of the

island and within T39N R11W section

27 on the northeastern corner of the

island.

Unit MI–12: Cathead Bay to Christmas

Cove

This unit encompasses approximately

5.1 km (3.2 mi) of Lake Michigan

shoreline in Leelanau County,

Michigan. It includes areas that are

currently occupied by piping plovers

and areas of suitable piping plover

nesting habitat. Approximately 1.9 km

(1.2 mi) are part of Leelanau State Park,

and the remaining 3.2 km (2.0 mi) are

privately owned land. This unit extends

from the northwest end of Cathead Bay

southward to just north of Christmas

Cove, excluding lands of the Magic

Carpet Woods Association HCP.

Unit MI–13: South Fox Island

This unit encompasses approximately

6 km (3.8 mi) of Lake Michigan

shoreline on South Fox Island in

Leelanau County, Michigan. It includes

areas that were historically occupied by

piping plovers. The entire designated

area is part of the Beaver Island State

Wildlife Research Area. This unit

includes all Lake Michigan shoreline

within T34N R13W sections 15, 16, and

21 on the south end of the island and

within T35N R13W section 30 on the

north end of the island.

Unit MI–14: North and South Manitou

Islands

This unit encompasses approximately

3.3 km (2.1 mi) of Lake Michigan

shoreline on North Manitou Island in

Leelanau County, Michigan. It includes

areas that are currently occupied by

piping plovers. The entire designated

area is part of Sleeping Bear Dunes

National Lakeshore. This unit includes

Dimmick’s Point and Donner’s Point on

the southern end of North Manitou

Island.

Unit MI–15: Crystal Run to Empire

Beach

This unit encompasses approximately

18.6 km (11.6 mi) of Lake Michigan

shoreline in Leelanau County,

Michigan. It includes areas of suitable

piping plover nesting habitat.

Approximately 4.8 km (3.0 mi) are

municipal beach in Glen Arbor

Township, and the remaining 13.8 km

(8.6 mi) are part of Sleeping Bear Dunes

National Lakeshore. This unit extends

from Crystal Run to the southern

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22947

Sleeping Bear Dunes National Lakeshore

property boundary.

Unit MI–16: Esch Road to Sutter Road

and Point Betsie

This unit encompasses approximately

18.6 km (11.6 mi) of Lake Michigan

shoreline in Benzie County, Michigan. It

includes areas that are currently

occupied by piping plovers, areas that

were historically occupied, and areas of

suitable piping plover nesting habitat.

The majority of the unit (13.8 km (8.6

mi)) is part of Sleeping Bear Dunes

National Lakeshore, 3.8 km (2.4 mi) are

private land, and the remaining 1.0 km

(0.6 mi) is U.S. Coast Guard land that is

managed by The Nature Conservancy, a

private conservation organization. This

unit extends from Esch Road to the

Sleeping Bear Dunes National Lakeshore

property boundary at Sutter Road. The

unit then continues from the Point

Betsie Natural Area northern property

boundary south to include all shoreline

within T26N R16W section 4.

Unit MI–17: Nordhouse Dunes and

Ludington State Park

This unit encompasses approximately

13.4 km (8.3 mi) of Lake Michigan

shoreline in Mason County, Michigan. It

includes areas that were historically

occupied by piping plovers. At least one

pair of piping plovers were sighted in

the area in 1999, but no nests were

found. Approximately 7.4 km (4.6 mi)

are part of the Manistee National Forest/

Nordhouse Dunes Wilderness Area, and

the remaining 6.0 km (3.7 mi) are part

of Ludington State Park. This unit

extends from the mouth of Cooper Creek

to the mouth of the Big Sable River.

Unit MI–18: Muskegon State Park

This unit encompasses approximately

2.5 km (1.6 mi) of Lake Michigan

shoreline in Muskegon County,

Michigan. It includes areas that were

historically occupied by piping plovers.

In the early 1950s, several pairs of

piping plovers were reported nesting in

this unit, but the last known nesting was

in 1953. The entire designated area is

part of Muskegon State Park. This unit

extends from the north breakwall of the

canal joining Muskegon Lake and Lake

Michigan to the northern Muskegon

State Park property boundary at the

shoreline.

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

This unit encompasses approximately

3.0 km (1.9 mi) of Lake Huron shoreline

in Chippewa County, Michigan. It

includes areas that were historically

occupied by piping plovers. The entire

designated area is within Lake Superior

State Forest. This unit extends from the

Lake Superior State Forest boundary to

the mouth of Joe Straw Creek.

Unit MI–20: Lighthouse Point to

Cordwood Point

This unit encompasses approximately

5.2 km (3.3 mi) of Lake Huron shoreline

in Cheboygan County, Michigan. It

includes areas that were historically

occupied by piping plovers and

currently serve as foraging areas.

Approximately 3 km (1.9 mi) are part of

Cheboygan State Park, and

approximately 1.6 km (1 mi) are Nature

Conservancy property. The remaining

0.6 km (0.4 mi) is privately owned land.

This unit extends from the junction of

the Lake Huron shoreline and the

western boundary of T38N R1W section

22 near Lighthouse Point to just west of

Cordwood Point.

Unit MI–21: P.H. Hoeft State Park

This unit encompasses approximately

3.7 km (2.3 mi) of Lake Huron shoreline

in Presque Isle County, Michigan. It

includes areas of suitable piping plover

nesting habitat. The entire designated

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

This unit includes Lake Huron shoreline

within T35N R5E section 6

northwestward to the junction of Nagel

Road and Forty Mile Road.

Unit MI–22: Thompson’s Harbor State

Park

This unit encompasses approximately

2.8 km (1.7 mi) of Lake Huron shoreline

in Presque Isle County, Michigan. It

includes areas of suitable piping plover

nesting habitat. Most of this designated

area is within Thompson’s Harbor State

Park with a small portion of privately

owned land. This unit extends along the

Lake Huron shoreline from Black Point

to Grand Lake Outlet.

Unit MI–23: Tawas Point State Park

This unit encompasses approximately

2.0 km (1.2 mi) of Lake Huron shoreline

in Iosco County, Michigan. It includes

areas used for foraging by transient

piping plovers and suitable nesting

habitat. The entire designated area is

part of Tawas Point State Park. This unit

extends from the Tawas Sate Park

boundary on the east side of Tawas

Point including all shoreline within

T22N R8E section 34 and offshore sand

spits.

Minnesota/Wisconsin

Unit MN/WI–1: Interstate Island

This unit encompasses approximately

0.6 km (0.4 mi) of Lake Superior

shoreline on Interstate Island in St.

Louis County, Minnesota and Douglas

County, Wisconsin. Although piping

plover nesting has not been documented

on this island, it contains viable piping

plover habitat. A portion of the 0.6 km

(0.4 mi) of island shoreline on Interstate

Island is in Minnesota, and a portion is

in Wisconsin. Approximately 0.2 km

(0.1 mi) of Interstate Island shoreline is

owned by the State of Minnesota and is

a State Wildlife Management Area and

bird sanctuary. The remaining 0.4 km

(0.2 mi) of Interstate Island shoreline is

in Wisconsin and is private land owned

by C. Rice Coal and Burlington Northern

Railroad. This unit is comprised of

Interstate Island.

Wisconsin

Unit WI–1: Wisconsin Point

This unit encompasses approximately

4.0 km (2.5 mi) of Lake Superior

shoreline in Douglas County,

Wisconsin. It includes areas that were

historically occupied by piping plovers.

Approximately 0.4 km (0.2 mi) of the

unit is Army Corps of Engineers land.

The rest of the designated area is

municipal land belonging to the city of

Superior. This unit extends from the

mouth of Dutchman Creek to the

Douglas and St. Louis County line.

Unit WI–2: Long Island/Chequamegon

Point

This unit encompasses approximately

25.3 km (15.7 mi) of Lake Superior

shoreline in Ashland County,

Wisconsin. It includes areas currently

occupied by piping plovers. Nesting

occurred in this unit in 1998 and 1999.

Approximately 11.2 km (6.9 mi) are part

of the Apostle Islands National

Lakeshore, approximately 9.0 km (5.6

mi) are private land, and the remaining

5.1 km (3.2 mi) are Tribal lands

belonging to the Bad River Band of Lake

Superior Tribe of Chippewa Indians.

This unit extends from the base of

Chequamegon Point (where it meets the

mainland) to Chequamegon Point Light.

Unit WI–3: Western Michigan Island

Beach and Dunes

This unit encompasses approximately

6.5 km (4 mi) of Lake Superior shoreline

on Michigan Island in Ashland County,

Wisconsin. It includes areas of suitable

piping plover nesting habitat. The entire

designated area is part of the Apostle

Island National Lakeshore. This unit

includes all Lake Superior shoreline on

Michigan Island within T51N R1W

sections 28, 20, and 21.

Unit WI–4: Seagull Bar

This unit encompasses approximately

1.5 km (0.9 mi) of Lake Michigan

shoreline in Marinette County,

Wisconsin. It includes areas of suitable

piping plover nesting habitat. About one

22948 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

half of the unit is State owned and the

other half is municipal property owned

by the city of Marinette. This unit

extends from the end of Leonard Street

at Red Arrow Park to the south end of

Seagull Bar including nearshore sand

bars.

Unit WI–5: Point Beach State Forest

This unit encompasses approximately

8 km (5 mi) of Lake Michigan shoreline

in Manitowoc County, Wisconsin. It

includes areas of suitable piping plover

nesting habitat. The entire designated

area is part of the Point Beach State

Forest. This unit extends from the

southwest property boundary of Point

Beach State Forest to Rawley Point.

Illinois

Unit IL–1: Illinois Beach State Park and

Nature Preserve to Waukegan Beach

This unit encompasses approximately

10.2 km (6.3 mi) of Lake Michigan

shoreline in Lake County, Illinois. It

includes areas that were historically

occupied by piping plovers.

Approximately 4.7 km (2.9 mi) are part

of the Illinois Beach State Park and

Nature Preserve, approximately 1.3 km

(0.8 mi) are municipal property (Zion

municipal park and Waukegan

municipal beach), and the remaining 4.2

km (2.6 mi) are privately owned. This

unit extends from 17th Street and the

Lake Michigan shoreline in Illinois

Beach State Park southward to the

northernWaukegan Beach breakwall at

North Beach Park, excluding the public

beach and campground to just south of

the Illinois Beach State Park Lodge and

Conference Center.

Indiana

Unit IN–1: Indiana Dunes National

Lakeshore and Indiana Dunes State

Park Beaches

This unit encompasses approximately

7.9 km (4.9 mi) of Lake Michigan

shoreline in Porter County, Indiana. It

includes areas that were historically

occupied by piping plovers. 5 km (3.1

mi) are part of Indiana Dunes State Park

and the remaining 2.9 km (1.8 mi) are

part of Indiana Dunes National

Lakeshore. This unit extends from the

western boundary of the Cowels Bog/

Dune Acres Unit, east of the Port of

Indiana and the NIPSCO Baily

Generating Station and along the

Indiana Dunes State Park to Kemil Road

at Beverly Shores.

Ohio

Unit OH–1: Sheldon Marsh

This unit encompasses approximately

3.2 km (2.0 mi) of Lake Erie shoreline

in Erie County, Ohio. It includes

foraging areas for transient piping

plovers and suitable nesting habitat.

Approximately 1.2 km (0.7 mi) are part

of Sheldon Marsh State Nature Preserve,

and the remaining 2.0 km (1.2 mi) are

privately owned land. This unit extends

from the mouth of Sawmill Creek to the

western property boundary of Sheldon

Marsh State Natural Area.

Unit OH–2: Headland Dunes

This unit encompasses approximately

0.8 km (0.5 mi) of Lake Erie shoreline

in Lake County, Ohio. It includes

historical nesting habitat and areas of

suitable piping plover nesting habitat.

The entire designated area is part of

Headland Dunes State Nature Preserve.

This unit extends from the eastern

boundary line of Headland Dunes

Nature Preserve to the western

boundary of the Nature Preserve and

Headland Dunes State Park.

Pennsylvania

Unit PA–1: Gull Point Natural Area,

Presque Isle State Park

This unit encompasses approximately

6.0 km (3.7 mi) of Lake Erie shoreline

in Erie County, Pennsylvania. It

includes foraging areas for transient

piping plovers and areas that were

historically used for nesting. The entire

unit is part of the Presque Isle State

Park. This unit extends from the

lighthouse north of Peninsula Drive on

the north side of Presque Isle to the

southern terminus of the hiking trail on

the southeast side of Gull Point. It

includes any new beach habitat that

may accrete along the present shoreline

portion of the unit.

New York

Unit NY–1: Salmon River to Stony Point

This unit encompasses approximately

27.4 km (17 mi) of Lake Ontario

shoreline in Jefferson and Oswego

Counties, New York. It includes areas

that were historically occupied by

piping plovers. Approximately 12.4 km

(7.7 mi) are State land (New York State

Department of Environmental

Conservation (DEC) Wildlife

Management Area/ New York DEC

Unique Area and New York State Park),

approximately 14.6 km (9.1 mi) are

privately owned, and the remaining 0.4

km (0.2 mi) belong to The Nature

Conservancy. This unit extends from the

mouth of the Salmon River to the

Eldorado Road.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires all

Federal agencies, including the Service,

to ensure that actions they fund,

authorize, or carry out do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

States, Tribes, local governments, and

other non-Federal entities are affected

by the designation of critical habitat

only if their actions occur on Federal

lands, require a Federal permit, license,

or other authorization, or involve

Federal funding.

Section 7(a) of the Act requires all

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

proposed or designated critical habitat.

Regulations implementing this

interagency cooperation provision of the

Act are codified at 50 CFR part 402.

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

Federal agencies to confer with us on

any action that is likely to jeopardize

the continued existence of a proposed

species or result in destruction or

adverse modification of proposed

critical habitat. Conference reports

provide conservation recommendations

to assist the agency in eliminating

conflicts that may be caused by the

proposed action. The conservation

recommendations in a conference report

are advisory. If a species is listed or

critical habitat is designated, section

7(a)(2) requires Federal agencies to

ensure that activities they authorize,

fund, or carry out are not likely to

jeopardize the continued existence of

the species or to destroy or adversely

modify its critical habitat. If a Federal

action may affect a listed species or its

critical habitat, the responsible Federal

agency (action agency) must consult

with us. Through this consultation we

would ensure that the permitted actions

do not destroy or adversely modify

critical habitat.

When we issue a biological opinion

concluding that a Federal action is

likely to result in the destruction or

adverse modification of critical habitat,

we also provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that we

believe would avoid destruction or

adverse modification of critical habitat.

Reasonable and prudent alternatives can

vary from slight project modifications to

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22949

extensive redesign or relocation of the

project. Costs associated with

implementing a reasonable and prudent

alternative are similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation with us on actions for

which formal consultation has been

completed, if those actions may affect

designated critical habitat. Further,

some Federal agencies may have

conferenced with us on proposed

critical habitat. We may adopt the

formal conference report as the

biological opinion when critical habitat

is designated, if no significant new

information or changes in the action

alter the content of the opinion (see 50

CFR 402.10(d)).

Activities on Federal lands that may

affect the piping plover or its critical

habitat will require section 7

consultation. Activities on private, State

or Tribal lands requiring a permit from

the U.S. Army Corps of Engineers (Army

Corps) under section 404 of the Clean

Water Act, or some other Federal action,

including funding (e.g from the Federal

Highway Administration,

Environmental Protection Agency, or

Federal Emergency Management

Agency) will also continue to be subject

to the section 7 consultation process.

Federal actions not affecting listed

species or critical habitat and actions on

non-Federal lands that are not federally

funded or permitted do not require

section 7 consultation.

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

to evaluate briefly in any proposed or

final regulation that designates critical

habitat those activities involving a

Federal action that may adversely

modify such habitat or may be affected

by such designation. Activities that may

destroy or adversely modify critical

habitat include those that alter the

primary constituent elements to the

extent that the value of critical habitat

for both the survival and recovery of the

Great Lakes breeding population of the

piping plover is appreciably

diminished. We note that such activities

may also jeopardize the continued

existence of the species.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned when the area of the

proposed action is occupied by the

species. In those cases, it is highly

unlikely that additional modifications to

the action would be required as a result

of designating critical habitat. However,

critical habitat may provide benefits

toward recovery when designated in

areas unoccupied by the species.

Designation of critical habitat could

affect Federal agency activities. Federal

agencies already consult with us on

activities that may affect the species to

ensure that their actions do not

jeopardize the continued existence of

the species. These actions include, but

are not limited to: (1) Marina and boat

launch construction and maintenance;

(2) harbor dredging and dredge spoil

placement and disposal; (3) fill of

interdunal wetlands for residence,

driveway, or other construction; (4)

waste-water discharge from

communities; (5) all-terrain vehicular

activity on beaches or the construction

of facilities that increase such activity;

(6) beach stabilization activities that

impede natural overwash processes

including beach nourishment, planting

of vegetation, and construction and

maintenance of seawalls, breakwaters,

and other off-shore stabilizing devices;

(7) sale, exchange, or lease of Federal

land that contains suitable habitat that

is likely to result in the habitat being

destroyed or appreciably degraded; (8)

oil and other hazardous material spills

and cleanup; and (9) stormwater and

wastewater discharge from

communities. Additionally, public

access may be temporarily or seasonally

restricted on beaches under Federal

ownership or jurisdiction to reduce

disturbance so that piping plovers in

search of suitable nesting sites could

utilize them. Some of these closures

may be voluntary by governmental and

private land managers. Most closures

would end prior to the time the public

would frequent these beaches.

This section serves in part as a general

guide to clarify activities that may affect

or destroy or adversely modify critical

habitat. However, specific Federal

actions should be reviewed by the

action agency. If the agency determines

the activity may affect critical habitat,

they will consult with us under section

7 of the Act. We will work with the

agencies and affected public early in the

consultation process to avoid or

minimize potential conflicts and,

whenever possible, find a solution that

protects listed species and their habitat

while allowing the action to go forward

in a manner consistent with its intended

purpose.

Exclusions Under Section 4(b)(2)

Subsection 4(b)(2) of the Act allows

us to exclude areas from critical habitat

designation where the benefits of

exclusion outweigh the benefits of

designation, provided the exclusion will

not result in the extinction of the

species. For the following reasons, we

believe that in most instances the

benefits of excluding areas covered by

approved Habitat Conservation Plans

(HCPs) from critical habitat designations

will outweigh the benefits of including

them.

(1) Benefits of Inclusion

The benefits of including HCP lands

in critical habitat are normally small.

The principal benefit of any designated

critical habitat is that Federal activities

in such habitat that may affect it require

consultation under section 7 of the Act.

Such consultation would ensure that

adequate protection is provided to avoid

adverse modification of critical habitat.

Where HCPs are in place, our

experience indicates that this benefit is

small or non-existent. Currently

approved and permitted HCPs are

already designed to ensure the longterm survival of covered species within

the plan area. Where we have an

approved HCP, lands that we ordinarily

would define as critical habitat for the

covered species will normally be

protected in reserves and other

conservation lands by the terms of the

HCP and its implementation

agreements. The HCP and

implementation agreements include

management measures and protections

for conservation lands that are crafted to

protect, restore, and enhance their value

as habitat for covered species.

In addition, a 10(a)(1)(B) permit

issued by us as a result of an HCP

application must itself undergo

22950 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

consultation. While this consultation

may not look specifically at the issue of

adverse modification of critical habitat,

it will look at the very similar concept

of jeopardy to the listed species in the

plan area. Since HCPs, particularly large

regional HCPs, address land use within

the plan boundaries, habitat issues

within the plan boundaries will have

been thoroughly addressed in the HCP

and the consultation on the HCP. Our

experience is also that, under most

circumstances, consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Implementing regulations (50 CFR Part

402) define ‘‘jeopardize the continued

existence of’’ and ‘‘destruction or

adverse modification of’’ in virtually

identical terms. Jeopardize the

continued existence of means to engage

in an action ‘‘that reasonably would be

expected to reduce appreciably the

likelihood of both the survival and

recovery of a listed species.’’

Destruction or adverse modification

means an ‘‘alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species.’’ Common to both

definitions is an appreciable detrimental

effect on both survival and recovery of

a listed species, in the case of critical

habitat by reducing the value of the

habitat so designated. Thus, actions

satisfying the standard for adverse

modification are nearly always found to

also jeopardize the species concerned,

and the existence of a critical habitat

designation does not materially affect

the outcome of consultation. Additional

measures to protect the habitat from

adverse modification are not likely to be

required.

Further, HCPs typically provide for

greater conservation benefits to a

covered species than section 7

consultations because HCPs assure the

long term protection and management of

a covered species and its habitat, and

funding for such management through

the standards found in the 5-Point

Policy for HCPs (64 FR 35242) and the

HCP No Surprises regulation (63 FR

8859). Such assurances are typically not

provided by section 7 consultations

which, in contrast to HCPs, often do not

commit the project proponent to long

term special management or protections.

Thus, a consultation typically does not

accord the lands it covers the extensive

benefits an HCP provides.

The development and implementation

of HCPs provide other important

conservation benefits, including the

development of biological information

to guide conservation efforts and assist

in species recovery and the creation of

innovative solutions to conserve species

while allowing for development. The

educational benefits of critical habitat,

including informing the public of areas

that are important for the long-term

survival and conservation of the species,

are essentially the same as those that

would occur from the public notice and

comment procedures required to

establish an HCP, as well as the public

participation that occurs in the

development of many regional HCPs.

For these reasons, then, we believe that

designation of critical habitat has little

benefit in areas covered by HCPs.

(2) Benefits of Exclusion

The benefits of excluding HCPs from

being designated as critical habitat may

be more significant. During two public

comment periods on our critical habitat

policy, we received several comments

about the additional regulatory and

economic burden of designating critical

habitat. These include the need for

additional consultation with the Service

and the need for additional surveys and

information gathering to complete these

consultations. HCP applicants have also

stated that they are concerned that third

parties may challenge HCPs on the basis

that they result in adverse modification

or destruction of critical habitat, should

critical habitat be designated within the

HCP boundaries.

The benefits of excluding HCPs

include relieving landowners,

communities and counties of any

additional minor regulatory review that

might be imposed by critical habitat.

Many HCPs, particularly large regional

HCPs, take many years to develop and,

upon completion, become regional

conservation plans that are consistent

with the recovery of covered species.

Many of these regional plans benefit

many species, both listed and unlisted.

Imposing an additional regulatory

review after HCP completion may

jeopardize conservation efforts and

partnerships in many areas and could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance and

confirms regulatory assurances for HCP

participants.

A related benefit of excluding HCPs is

that it would encourage the continued

development of partnerships with HCP

participants, including States, local

governments, conservation

organizations, and private landowners,

that together can implement

conservation actions we would be

unable to accomplish alone. By

excluding areas covered by HCPs from

critical habitat designation, we preserve

these partnerships, and, we believe, set

the stage for more effective conservation

actions in the future.

In general, we believe the benefits of

critical habitat designation to be small

in areas covered by approved HCPs. We

also believe that the benefits of

excluding HCPs from designation are

significant. Weighing the small benefits

of inclusion against the benefits of

exclusion, including the benefits of

relieving property owners of an

additional layer of approvals and

regulation, together with the

encouragement of conservation

partnerships, would generally result in

HCPs being excluded from critical

habitat designation under Section

4(b)(2) of the Act.

Not all HCPs are alike with regard to

species coverage and design. Within this

general analytical framework, we need

to individually evaluate completed and

legally operative HCPs in the range of

the Great Lakes breeding population of

the piping plover to determine whether

the benefits of excluding these

particular areas outweigh the benefits of

including them.

Presently, one approved HCP exists

for the piping plover in the Great Lakes

region. The Magic Carpet Woods

Association HCP covers approximately

792 meters (2,600 feet) of shoreline

within the proposed Cathead Bay

critical habitat unit in Leelanau County,

Michigan. This plan addresses the

piping plover as a covered species and

provides conservation management and

protection for the species. We evaluated

this plan and determined that the

conservation management measures and

protection afforded the piping plover

are sufficient to assure its conservation

on the involved lands. Consequently,

we have determined that the benefits of

excluding this area outweigh the

benefits of inclusion, and have excluded

the area covered by the HCP from the

fixed critical habitat designation.

In the event that future HCPs covering

the Great Lakes breeding population of

the piping plover are developed within

the boundaries of designated critical

habitat, we will work with applicants to

ensure that the HCPs provide for

protection and management of habitat

areas essential for the conservation of

the piping plover by either directing

development and habitat modification

to nonessential areas or appropriately

modifying activities within essential

habitat areas so that such activities will

not adversely modify the primary

constituent elements. The HCP

development process provides an

opportunity for more intensive data

collection and analysis regarding the

use of particular habitat areas by the

piping plover. The process also enables

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22951

us to conduct detailed evaluations of the

importance of such lands to the long

term survival of the species.

We will provide technical assistance

and work closely with applicants

throughout the development of future

HCPs to identify lands essential for the

long-term conservation of the piping

plover and appropriate management for

those lands. The take minimization and

mitigation measures provided under

these HCPs are expected to protect the

essential habitat lands designated as

critical habitat in this rule. If an HCP

that addresses the piping plover as a

covered species is ultimately approved,

the Service will reassess the critical

habitat boundaries in light of the HCP.

The Service will seek to undertake this

review when the HCP is approved, but

funding constraints may influence the

timing of such a review.

Should additional information

become available that changes our

analysis of the benefits of excluding any

of these (or other) areas compared to the

benefits of including them in the critical

habitat designation, we may revise this

final designation accordingly.

Similarly, if new information

indicates any of these areas should not

be included in the critical habitat

designation because they no longer meet

the definition of critical habitat, we may

revise this final critical habitat

designation. If, consistent with available

funding and program priorities, we elect

to revise this designation, we will do so

through a subsequent rulemaking.

If you have questions regarding

whether specific activities will

constitute adverse modification of

critical habitat, or requests for copies of

the regulations on listed wildlife and

inquiries about prohibitions and permits

contact the U.S. Fish and Wildlife

Service (see addresses section).

Summary of Comments and

Recommendations

In the July 6, 2000, proposed rule (65

FR 41812), we requested all interested

parties to submit comments on the

specifics of the proposal including

information, policy, treatments of HCPs,

and proposed critical habitat boundaries

as provided in the proposed rule. The

first comment period closed on

September 5, 2000. The comment period

was reopened for 30 days, from

September 19 to October 20, 2000 (65

FR 56530), to allow for additional

comments on the proposed rule and

comments on the draft economic

analysis of the proposed critical habitat.

Since our intention was to reopen the

comment period for 60 days, we

published a correction on September 28,

2000 (65 FR 58258), correcting the

closing date of the reopened comment

period to November 20, 2000.

Comments received from July 6 to

November 20, 2000, were entered into

the administrative record.

We contacted all appropriate State

and Federal agencies, Tribes, County

governments, elected officials, and other

interested parties and invited them to

comment. In addition, we invited public

comments through the publication of

notices in newspapers in Minnesota,

Wisconsin, Michigan, Illinois, Indiana,

Ohio, Pennsylvania, and New York. In

these notices and the proposed rule, we

announced the dates and times of seven

public hearings to be held on the

proposed rule. Their dates and locations

are specified above in the section

‘‘Previous Federal Actions’’. Transcripts

of these hearings are available for

inspection (see addresses section). We

posted copies of the proposed rule and

draft economic analysis on our internet

site (http://midwest.fws.gov/).

We requested three ornithologists and

conservation biologists, who have

familiarity with the piping plover and

its habitat requirements, to peer review

the proposed critical habitat

designation. All three responded by the

close of the comment period. They

provided valuable information about the

biology, status, and historical range of

the species, and suggested removing

some areas from the critical habitat

designation that no longer meet the

criteria of piping plover critical habitat

and provided data on other areas that

may deserve critical habitat designation

at a later date. These comments are

addressed in this section, and relevant

data provided by the reviewers have

been incorporated throughout the rule.

We received a total of 140 written and

36 oral comments during the 2 public

comment periods. Several people

submitted comments more than once. In

total, oral and written comments were

received from 7 Federal agencies, 14

State agencies, 5 Tribal representatives,

3 elected officials, 10 local governments,

31 private organizations, and 97 private

individuals. Comments were received

from residents in 13 States, with

Michigan sources submitting the most of

any one State. All comments received

were reviewed for substantive issues

and new data regarding critical habitat

and the biology and status of the Great

Lakes breeding population of the piping

plover, and economic information. We

address all relevant comments received

during the comment periods and public

hearing testimonies in the following

summary of issues. Comments of a

similar nature are grouped into a single

issue. Comments that we incorporated

into this final rule are discussed in the

‘‘Summary of Changes from Proposed

Rule’’ section of this document.

Issue 1: Biological Justification and

Methodology

The following comments and

responses involve issues related to the

biological basis for the designation.

(1A) Comment: The broad scale of the

proposed critical habitat includes areas

that do not contain the primary

constituent elements for the Great Lakes

piping plover.

Response: We recognize that not all

parcels of land within designated

critical habitat units will contain the

habitat components essential to piping

plover conservation. We are required to

designate critical habitat based on the

best available information and to

describe critical habitat (50 CFR

424.12(c)) with specific limits using

reference points and specific definable

boundaries. In preparation of the final

determination, we used information

gathered during the public comment

period to more accurately define the

written critical habitat boundaries.

Despite our efforts to exclude areas that

do not contain the primary constituent

elements for the piping plover from

critical habitat unit boundaries, it is not

practicable to develop unit boundaries

and provide maps and legal descriptions

that exclude all developed areas such as

towns, housing developments, or other

developed lands unlikely to provide for

the piping plover. Because of the time

constraints imposed by the Court, and

the absence of detailed Geographic

Information System (GIS) coverage we

defined the critical habitat unit

boundaries as specifically as practicable

but, due to the mapping scale, some

areas not essential to the conservation of

the piping plover were included within

the boundaries of proposed critical

habitat. However, developed areas such

as buildings, marinas, paved areas, boat

ramps, piers, bridges, lighthouses, and

similar human-made structures are not

being designated as critical habitat.

(1B) Comment: Designating critical

habitat for the piping plover will result

in such high public animosity that the

designation will cause more harm to the

species than benefit.

Response: Public support is a vital

asset in the protection of endangered

species and their habitat, but, by law we

must designate essential areas as critical

habitat even if it will cause public

backlash due to misconceptions about

its impacts. In an effort to clear up

misunderstandings about critical habitat

and to increase public support for

piping plovers, we are increasing our

education and outreach programs.

22952 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

(1C) Comment: One person

commented that there is a lack of data

to support the proposed measures and

no data to support that designating

critical habitat will result in an

increased piping plover population.

Response: In accordance with section

3(5)(A)(i) of the Act and regulations at

50 CFR 424.12, in determining which

areas to designate as critical habitat, we

are basing this critical habitat

determination on the best scientific and

commercial data available at the time of

designation. The designation indicates

the areas that we believe are essential to

the conservation of the species.

Designation of critical habitat is only

one tool to use towards the recovery of

the piping plover, and we will continue

to work with other Federal agencies,

State and local agencies, Tribes, the

scientific community, local landowners,

and the public to eliminate and reduce

the range of threats that endanger this

species.

(1D) Comment: Inland lakes are

mentioned in the 1988 Recovery Plan as

potential breeding habitat around the

Great Lakes. Were smaller, inland lakes

considered for designation?

Response: Inland lake records of

piping plovers in the Great Lakes are

very few and from long ago. Cottrille

(1957) cites four records of piping

plovers at three inland locations in

Michigan between 1938 and 1954, but

no such sightings have been made in

recent years. Additionally, there are no

inland lakes in the Great Lakes area that

are presently known to contain the

primary constituent elements for this

population of piping plovers.

(1E) Comment: There is no mention of

migratory sites or habitat needs during

migration.

Response: Areas used by piping

plovers on migratory routes are likely

very important for survival to the next

breeding season. Extraordinarily little is

known, however, about important stopover sites and habitat needs of the

piping plover during migration. Because

so little is known about where essential

migratory stop-over sites are located, we

did not designate migratory habitat in

this rule. Important migratory sites may

be added to the critical habitat

designation (by following the complete

proposal process and soliciting public

comments) when we have a better

understanding of migratory habitat

requirements.

(1F) Comment: Why is unoccupied

habitat being designated as critical

habitat?

Response: The inclusion of

unoccupied areas in this critical habitat

designation is in accordance with

section 3(5)(A) of the Act, which

provides that areas outside the

geographic area currently occupied by

the species may meet the definition of

critical habitat upon a determination

that they are essential for the

conservation of the species. Our

regulations also provide for the

designation of areas outside the

geographical area currently occupied if

we find that a designation limited to its

present range would be inadequate to

ensure the conservation of the species

(50 CFR 424.12(e)).

In 2000, there were about 30 breeding

pairs of piping plovers in the Great

Lakes area, all of which occur in

Michigan (Stucker et al. 2000). The

Great Lakes and Northern Great Plains

Piping Plover Recovery Plan (USFWS

1988b) establishes a recovery goal of 150

breeding pairs in the Great Lakes

watershed. This number is considered a

minimum for the recovery of the species

and eventual removal from the

protections of Act. Of these 150

breeding pairs, at least 100 are to be in

Michigan and at least 50 in other Great

Lakes States. In order to achieve this

recovery goal, additional habitat areas

are needed beyond those currently

occupied by the species. We have

designated currently unoccupied areas

as critical habitat on the basis of

historical piping plover occurrences and

the existence of most or all of the

primary constituent elements at other

sites lacking historical occurrences.

Additionally, all of the currently

unoccupied areas designated as critical

habitat are included as essential habitat

in the draft revised Recovery Plan

(USFWS 1994).

Issue 2: Policy and Regulations

The following comments and

responses involve issues related to

public involvement in the designation

process and compliance with the Act

and other laws, regulations, and

policies.

(2A) Comment: Several commenters

were supportive of the policy that lands

covered by approved HCPs that provide

incidental take authorization for the

piping plover should be excluded from

critical habitat. Other commenters

believe that critical habitat designation

should occur within the boundaries of

such HCPs.

Response: We recognize that critical

habitat is only one of many conservation

tools for federally listed species. HCPs

are one of the most important tools for

reconciling land use with the

conservation of listed species on nonFederal lands. Section 4(b)(2) of the Act

allows us to exclude areas from critical

habitat designation where the benefits of

exclusion outweigh the benefits of

designation, provided the exclusion will

not result in the extinction of the

species. We believe that in most

instances the benefits of excluding HCPs

from critical habitat designations will

outweigh the benefits of including them.

For this designation, we find that the

benefits of exclusion outweigh the

benefits of designation for the one

legally operative HCP issued for the

piping plover in the Great Lakes.

We anticipate that future HCPs in the

range of the Great Lakes breeding

population of piping plovers will

include it as a covered species and

provide for its long term conservation.

We expect that HCPs undertaken by

local jurisdictions (e.g. counties, cities)

and other parties will identify, protect,

and provide appropriate management

for those specific lands within the

boundaries of the plans that are

essential for the long term conservation

of the species. Section 10(a)(1)(B) of the

Act sates that HCPs must meet issuance

criteria, including minimizing and

mitigating any take of the listed species

covered by the permit to the extent

practicable, and that the taking must not

appreciably reduce the likelihood of the

survival and recovery of the species in

the wild. We fully expect that our future

analyses of HCPs and section 10(a)(1)(B)

permits under section 7 will show that

covered activities carried out in

accordance with the provisions of the

HCP and section 10(a)(1)(B) permits will

not result in the destruction or adverse

modification of critical habitat

designated for the piping plover.

In the event that future HCPs covering

the Great Lakes breeding population of

the piping plover are developed within

the boundaries of designated critical

habitat, we will work with applicants to

ensure that the HCPs provide for

protection and management of habitat

areas essential for the conservation of

the piping plover by either directing

development and habitat modification

to nonessential areas or appropriately

modifying activities within essential

habitat areas so that such activities will

not adversely modify the primary

constituent elements. The HCP

development process provides an

opportunity for more intensive data

collection and analysis regarding the

use of particular habitat areas by the

piping plover. We will provide

technical assistance and work closely

with applicants throughout the

development of future HCPs to identify

lands essential for the long term

conservation of the species and

appropriate management of those lands.

If the piping plover is a covered species

under future HCPs, the plans should

provide for the long term conservation

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22953

of the species. The take minimization

and mitigation measures provided

under these HCPs are expected to

adequately protect the essential habitat

lands designated as critical habitat in

this rule, such that the value of these

lands for the survival and recovery of

the Great Lakes breeding population of

the piping plover is not appreciably

diminished through direct or indirect

alterations. If an HCP that addresses the

piping plover as a covered species is

ultimately approved, the Service will

reassess the relevant critical habitat

boundaries in light of the protection and

management provided by the HCP. The

Service will seek to undertake this

review when the HCP is approved, but

funding constraints may influence the

timing of such a review. However, an

HCP can proceed without a concurrent

amendment to the critical habitat

designation should all involved parties

agree.

(2B) Comment: Specific lands should

be excluded using the exemption

afforded pursuant to 4(b)(2) of the Act.

The biological benefits of critical habitat

are outweighed by the benefits of

exclusion.

Response: Section 4(b)(2) of the Act

and 50 CFR 424.19 require us to

consider the economic impact, and any

other relevant impact, of specifying any

particular area as critical habitat. We

may exclude any area from critical

habitat if we determine that the benefits

of exclusion outweigh the benefits of

designating the area as critical habitat,

unless that exclusion will lead to

extinction of the species. As discussed

in this final rule, we have determined

that no significant adverse economic

effects will result from this critical

habitat designation. Consequently, none

of the proposed lands have been

excluded from the designation based on

economic impacts. As discussed in the

response to the comment above, we

have excluded the one legally operative

HCP from the designation pursuant to

section 4(b)(2) of the Act based on other

relevant impacts.

(2C) Comment: We received three

written requests to extend the comment

period for the proposed designation and

draft economic analysis.

Our Response: Following the

publication of the proposed critical

habitat designation on July 6, 2000, we

opened a 60 day public comment period

which closed on September 5, 2000,

held seven public hearings during July,

and conducted outreach notifying

elected officials, local jurisdictions,

interest groups, and property owners.

We conducted much of this outreach

through legal notices in regional

newspapers, telephone calls, letters and

news releases mailed to affected elected

officials, local jurisdictions, and interest

groups, and publication of the proposed

determination and associated materials

on our internet site. We published a

document in the Federal Register on

September 19, 2000, announcing the

availability of the draft economic

analysis and reopening the comment

period until October 19, 2000. On

September 28, 2000, in order to fulfill

our intention that the comment period

be reopened for 60 days, we published

a document correcting the closing date

of the comment period, to November 20,

2000. Because of the court-ordered ten

month time frame for completing the

designation, we were not able to extend

or open an additional public comment

period beyond the four and one-half

months we provided.

(2D) Comment: We received two

requests to hold additional public

hearings on the proposed designation.

Our Response: We are required to

hold one public hearing on a proposed

action, if it is requested. Due to the short

time between proposal and the courtordered deadline for publication of the

final rule, we chose to announce public

hearings at the time the proposal was

published. We published notification of

the hearings in the Federal Register as

part of the proposal, published legal

notices in regional newspapers, posted

information on our internet site, and

issued news releases about the hearings.

During the month of July, 2000, we held

seven public hearings throughout the

Great Lakes States affected by the

proposed critical habitat designation.

Additional public hearings were

requested in locations near one of the

seven hearings. Because of the courtordered deadline and the broad

coverage of the original public hearings,

we chose not to hold additional public

hearings.

(2E) Comment: One commenter

suggested that we post the hearing

transcripts and all of the comments

received during the public comment

period on the internet.

Response: We have not posted copies

of hearing transcripts and the comments

received on a proposed action on the

internet in the past. The volume of

public comments received on some

proposals is very large, thus it is not

practicable to post them on the internet

at this time. The hearing transcripts and

comments on the proposal to designate

critical habitat for the Great Lakes

breeding population of the piping

plover are available during normal

business hours at the U.S. Fish and

Wildlife Service offices at: Bishop

Henry Whipple Building, 1 Federal

Drive, Fort Snelling, Minnesota 55111;

and 2651 Coolidge Road, Suite 101, East

Lansing, Michigan 48823. Call our

Ecological Services office in Fort

Snelling at 612–713–5350 for more

information on how to view the

transcripts and comments.

(2F) Comment: Alternatives to

designating critical habitat were not

considered.

Response: By law, according to

section 4(a)(3) of the Act, we are

required to designate critical habitat ‘‘to

the maximum extent prudent’’ for all

listed species. Furthermore, in the case

of the piping plover, we were ordered

by the United States District Court for

the District of Columbia to designate

critical habitat for the Great Lakes

breeding population of this species.

Other conservation actions are

important to the recovery of the piping

plover and will be carried out as part of

the recovery process, but they are not

legal alternatives to designating critical

habitat.

(2G) Comment: A few commenters

recommended that we postpone issuing

a final determination until a more

specific and defensible critical habitat

proposal can be written and an accurate

and quantitative economic analysis be

conducted.

Response: We are required to use the

best available information in

designating critical habitat. We are

under a court order to complete the

designation of critical habitat for the

Great Lakes breeding population of the

piping plover by April 30, 2001. We did

solicit new biological data and public

participation during the comment

periods on the proposed rule and draft

economic analysis. These comments

have been taken into consideration in

the development of the final economic

analysis and this final determination.

Furthermore, we will continue to

monitor and collect new information

and may revise the critical habitat

designation in the future if new

information indicates a change is

needed, given our available funding and

priorities.

(2H) Comment: The maps presented

in the proposed rule are difficult to

interpret and therefore will be difficult

to use in planning efforts.

Response: The maps published in the

Federal Register are provided for

reference purposes to guide Federal

agencies and other interested parties in

identifying the general boundaries

within which the critical habitat is

located. While the verbal descriptions of

each critical habitat unit are meant to

provide a more precise reference for

actual boundaries, we recognize the

value to the public and resource

managers of more detailed maps. Due to

22954 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

the time constraints of the court ordered

deadline and our limited Geographic

Information System (GIS) capabilities,

we have not been able to produce more

detailed maps to match our verbal

descriptions. We have made it a priority

to complete more detailed GIS maps of

the designated areas and make these

maps available for public use.

Issue 3: Economic and Other Relevant

Impacts

(3A) Comment: Designation of critical

habitat will cause private property

values to decline and will negatively

affect businesses.

Response: The economic analysis

indicates that designation of critical

habitat for the Great Lakes breeding

population on the piping plover will not

have a significant economic impact. The

economic analysis does acknowledge

that the designation of critical habitat

may have some effect on private

property values. We believe that this

short-term effect would occur from

market uncertainty and public

misperception of the impacts of the

critical habitat designation on private

land use. We also believe that this shortterm effect on property values would

diminish over time as the uncertainty

and misperceptions are dispelled. We

did not find supporting evidence during

the preparation of the economic analysis

to estimate or document this potential

short-term effect on property values.

The economic analysis determined that

there will be an insignificant impact to

businesses.

(3B) Comment: Several commenters

expressed concern about a quick

response to emergency maintenance

activities, specifically emergency

erosion control and environmental

clean-up, and questioned whether

emergency activities are exempt from

consultation under section 7 of the Act.

Response: Emergency activities are

not exempt from consultation under

section 7 of the Act. However, the

regulations at 50 CFR 402.05 allow for

informal consultation where emergency

circumstances mandate the need to

consult in an expedited manner. Formal

consultation must be initiated as soon as

possible after the emergency is under

control. In addition, programmatic

consultations can be conducted prior to

an emergency to address response

activities which can be reasonably

anticipated.

(3C) Comment: Some commenters

voiced concern that they were not

directly contacted for their opinions on

the economic impacts of critical habitat

designations or why their specific land

parcels were not addressed.

Response: We did not feel it was

necessary to contact every potential

stakeholder in order for us to develop a

draft economic analysis. Especially in

light of the limited resources and time

available to us, we believe that we were

adequately able to understand the issues

of concern to local communities based

on public comments submitted on the

proposed rule, on transcripts from

public hearings, and from detailed

discussions among our staff and with

representatives from other Federal,

State, Tribal, and local government

agencies, as well as some landowners.

When the draft economic analysis was

completed, we reopened the comment

period to request public comment, in

particular on the adequacy of the

economic analysis.

(3D) Comment: Several commenters

expressed concern about the impact

critical habitat will have on future

development projects and the

maintenance of existing structures.

Response: The designation of critical

habitat does not necessarily restrict

further development. Within critical

habitat boundaries, Federal agencies

must make special efforts to protect the

important characteristics of these areas,

therefore, if a proposed development

project with a Federal nexus were to

affect critical habitat of the piping

plover, consultation under section 7 of

the Act would be required. Because the

Great Lakes population of the piping

plover is listed as an endangered species

under the Act, section 7 consultations

would be required for development

projects in areas with piping plovers,

even if these areas are not designated

critical habitat.

Existing human-made structures, such

as buildings, parking lots, and boat

ramps are not critical habitat, therefore,

many maintenance projects on such

structures will not affect critical habitat.

Only those projects with a Federal

nexus that modify the primary

constituent elements to such a degree as

to cause the habitat to be unsuitable for

breeding piping plovers will be affected.

We understand the importance of

beach nourishment and dredging for

maintaining beach areas and harbors in

the Great Lakes. Additionally, these

activities, if conducted in an

appropriate manner, may be beneficial

to nesting piping plovers. These

activities, however, do alter the habitat,

and thus will likely require

consultation. For these types of ongoing

activities, programmatic consultations

can be conducted to reduce the time

necessary for annual consultations.

In those cases where consultation is

required, we will work cooperatively

with Federal agencies to see that

necessary work can proceed in concert

with the requirements of the Act to

conserve the piping plover and its

habitat. In cases where critical habitat

has been designated for areas occupied

by the piping plover, consultations

would likely have been required,

regardless of the designation of critical

habitat.

(3E) Comment: A number of

commenters expressed concern about

the impact on recreational activities,

tourism, and the possibility of restricted

beach access within designated critical

habitat.

Response: Most recreational activities

on the majority of beaches within

critical habitat will not be impacted by

critical habitat designation. Since nonFederal activities are not affected by

critical habitat designation, beach use

would only be affected if a Federal

agency funds, authorizes, or carries out

an action that will result in a level of

human use that precludes successful

piping plover breeding. In those cases,

we will work with the Federal agency

involved to protect potential breeding

habitat while having as minimal an

effect as possible on people’s enjoyment

of the areas. On non-Federal lands,

recreational beach activities such as

walking, jogging, sunning, swimming,

and picnicking will not be affected by

the critical habitat designation.

The recovery of piping plovers in the

Great Lakes area can be consistent with

recreational and other economic

activities. According to the 1996

National Survey of Fishing, Hunting,

and Wildlife Associated Recreation,

wildlife observation is one of the fastest

growing outdoor activities. The

presence of piping plovers on

Michigan’s beaches should continue to

attract bird watchers who are excited to

view this rare species in its natural

habitat.

Issue 4: Site Specific Issues

The following comments and

responses involve issues related to the

inclusion or exclusion of specific areas,

or our methods for selecting appropriate

areas for designation as critical habitat.

(4A) Comment: Several comments

pointed out errors in mileages,

locations, or descriptions of critical

habitat units in the proposed rule.

Response: Corrections have been

made in the final rule to reflect these

comments, where appropriate.

(4B) Comment: A number of

commenters identified specific areas

that they thought should not be

designated as critical habitat.

Response: Where site specific

documentation was submitted to us

providing a rationale as to why an area

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22955

should not be designated as critical

habitat, we evaluated that information

in accordance with the definition of

critical habitat pursuant to section 3 of

the Act and made a determination as to

whether modifications to the proposal

were appropriate. Based on the

comments we received, we excluded

lands from the final designation that we

determined to be nonessential to the

conservation of the piping plover (i.e.,

areas that did not contain the primary

constituent elements) or that were

located within an approved HCP for the

piping plover (refer to the ‘‘Summary of

Changes from Proposed Rule’’ section

for specific areas that were excluded).

None of the proposed lands have been

excluded from the final designation

based on economic impacts. We

included in the final designation those

lands that we still consider essential to

the recovery of the Great Lakes breeding

population of piping plovers.

(4C) Comment: Multiple commenters

recommended adding specific lands to

critical habitat or further investigating

additional areas for suitable habitat.

Response: During the Federal rulemaking process for designating critical

habitat, we may, based upon

information received during the public

comment period, remove proposed

critical habitat lands from a final

designation and refine proposed

boundaries. However, according to

section 4(b)(4) of the Act, we may not

add new critical habitat units without

first proposing these lands in the

Federal Register and providing a public

comment period. Therefore, potential

critical habitat units that were not

included in the proposal for the Great

Lakes population of the piping plover

are not designated as critical habitat in

this final determination.

Some of the lands recommended for

addition to critical habitat were not

included in the proposal because we

earlier concluded that these lands were

not essential for the conservation of the

species or did not meet the definition of

piping plover critical habitat. After

reassessing the requested additional

lands on South Fox Island in Michigan,

we continue to believe that these lands,

at this time, do not meet the definition

of critical habitat because they do not

contain the primary constituent

elements required by piping plovers.

Several of the other requested sites

were excluded from the proposed

designation because information on

current habitat suitability was not

available. These sites will require

further investigation to determine

whether they are essential to the

conservation of the species. Data

gathered following the publication of

the proposed rule indicates that some of

the requested lands contain suitable

nesting habitat and may be essential to

the conservation of the species. For

example, we received a comment from

the National Park Service requesting

that a portion of Sleeping Bear Dunes

National Lakeshore on South Manitou

Island, Michigan be included in the

designation because it is an important

piping plover foraging area. We will

continue to investigate potential piping

plover critical habitat and may revise

the critical habitat designation in the

future if new information supports a

change, and as available funding and

other priorities allow. The data on

additional sites that were provided to us

during the comment period will be

important in any future revisions to

designated critical habitat.

Issue 5: Other Relevant Issues

(5A) Comment: Two people

commented that we should also

designate critical habitat for piping

plovers that breed along the north

Atlantic coast.

Response: We are currently required

to complete a significant number of

listing-related actions, pursuant to court

orders and judicially approved

settlement agreements. Complying with

these court orders and settlement

agreements will require the Service to

spend nearly all of its listing and critical

habitat funding for fiscal year 2001, and

a substantial amount in fiscal year 2002.

We are currently working to prioritize

our critical habitat workload within the

ESA listing budget allocated by

Congress. The priority for designating

critical habitat for the Atlantic Coast

breeding population of piping plovers

relative to other species and pending

litigation has not yet been determined.

(5B) Comment: Piping plovers that

nest at Lake of the Woods, Minnesota

represent an important genetic link

between the Great Lakes and Great

Plains populations. Piping plovers at

Lake of the Woods should be considered

part of the endangered Great Lakes

breeding population instead of part of

the threatened Great Plains breeding

population.

Response: We agree that the piping

plovers that nest at Lake of the Woods,

Minnesota represent an important link

between the Great Lakes and Great

Plains populations. Piping plovers that

nest at Lake of the Woods are

considered part of the Great Plains

population because current data

suggested that they are more closely

associated with plovers in nearby

Manitoba, Canada (Haig and Oring,

1988). Proposed critical habitat for

piping plovers at Lake of the Woods will

be considered in the proposal to

designate critical habitat for the Great

Plains piping plover, to be published on

or before May 31, 2001.

(5C) Comment: Many commenters

suggested additional protection for

piping plovers, beyond the designation

of critical habitat.

Response: Other conservation actions,

besides the designation of critical

habitat, are crucial to the recovery and

survival of the piping plover. These

other actions, including public

education, predator control, law

enforcement, and monitoring are

addressed in the 1988 and 1994

Recovery Plans for Piping Plovers

Breeding in the Great Lakes and

Northern Great Plains. We are currently

revising these recovery plans and the

public will be provided the opportunity

to comment on the draft revised plan.

(5D) Comment: One commenter stated

that the effect of critical habitat should

include situations that are not funded,

authorized, or carried out by a Federal

agency.

Response: Once designated, critical

habitat has only one regulatory impact:

under section 7(a)(2) of the Act, Federal

agencies must, in consultation with the

Service, ensure that any action they

authorize, fund, or carry out is not likely

to result in the destruction or adverse

modification of critical habitat. By law,

the effect of critical habitat does not

extend to situations that do not involve

a Federal nexus.

Summary of Changes From Proposed

Rule

Based on a review of public

comments received on the proposed

determination of critical habitat for the

Great Lakes breeding population of the

piping plover, we re-evaluated our

proposed designation of critical habitat

for the piping plover. This re-evaluation

resulted in the following changes that

are reflected in this final determination.

Removal of Proposed Units

Based on comments received on the

proposal and site visits following the

publication of the proposal, we removed

three sites—Pensaukee Harbor and

Peshtigo Point, Wisconsin and Erie Pier/

Hearding Island, Minnesota— from this

final critical habitat designation. We

determined that these sites do not have,

and are unlikely to develop, the features

and habitat characteristics that are

necessary to sustain the species and

thus we no longer consider these areas

to be essential for the conservation of

the species.

22956 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Change in Extent of Inland Boundary

The proposed 1 km (0.6 mi.) inland

boundary was intended to incorporate

dune blow-out areas and extensive

dune-wetland systems. These inland

areas provide important foraging

habitat, as well as cobble pans between

the dunes where plovers occasionally

nest. Data gathered during the public

comment period indicate that the

majority of the dune systems within

designated critical habitat do not extend

further than 500 m (1,640 ft) inland

from the normal high water line.

Therefore, in this final determination,

the inland boundary for all critical

habitat units was changed from the

proposed 1 km (0.6 mi) to 500 m (1,640

ft) inland from normal high water line.

Errors in Unit Descriptions

Several comments pointed out

corrections or clarifications to unit

descriptions. We applied this corrected

information to the final rule and

adjusted the verbal descriptions of 10

units; White Fish Point to Grand Marais

(MI–1), Seven Mile Point to Thornswift

Nature Preserve (MI–5), Petoskey Sate

Park (MI–6), Greenes Bay-Beaver Island

(MI–10), High Island (MI–11), South Fox

Island (MI–13), Esch Road to Sutter

Road and Point Betsie (MI–16),

Lighthouse Point to Cordwood Point

(MI–20), Thompson’s Harbor (MI–22),

and Illinois Beach State Park/Waukegan

Beach (IL–1). None of the changes

resulted in any significant alteration of

the units.

Refined Unit Boundaries

The boundaries of several of the units

were refined to better reflect the areas

that are essential to the conservation of

the Great Lakes breeding population of

the piping plover. The southeastern

boundary of the unit at Long IslandChequamegon Point, Wisconsin (WI–2)

was moved northwestward

approximately 5 km (3.1 mi) to the base

of Chequamegon Point at the southern

boundary of T48N R3W, section 1. This

change was the result of discussions

with the Bad River Band of Lake

Superior Chippewa Indians and the

Wisconsin Department of Natural

Resources. The revised boundary

excludes areas that do not have the

required habitat features for nesting

piping plovers and, therefore, are not

essential to the conservation of the

species. Additionally, the description of

this unit given in the proposal, although

inclusive of the entire peninsula, only

calculated the length of the peninsula,

not the perimeter shoreline of the

peninsula. The calculation of the length

of this unit as presented in this final

determination includes the entire

perimeter of the peninsula, and

therefore appears to be larger, when in

actuality it has been reduced by

approximately 5 km (3.1 mi). The

proposal states that the unit was 18 km

(11.2 mi) long when, consistent with the

verbal description and calculating both

sides of the peninsula, it was actually

30.3 km (18.8 mi) long. Therefore, this

unit is being reduced from 30.3 km (18.8

mi) to 25.3 km (15.7 mi) in this final

determination.

The western boundary of the Indiana

Dunes (IN–1) unit was moved

approximately 549 meters (1,800 feet)

eastward to the western boundary of

Indiana Dunes National Lakeshore. This

revised boundary excludes lands owned

by the Northern Indiana Public Service

Company (NIPSCO) that do not have the

required habitat features for nesting

piping plovers and, therefore, are not

essential to the conservation of the

species.

The southeastern boundary of the

Pennsylvania unit (PA–1) at Gull Point

Natural Area/Presque Isle State Park

was moved approximately 2.3 km (1.4

mi) north. The refined boundary

excludes the public beach area that does

not have the required habitat features

for nesting piping plovers and,

therefore, is not essential to the

conservation of the species.

Additionally, the length of this unit was

miscalculated in the proposed rule. The

proposal states that the unit was 1.5 km

(0.9 mi) long when, consistent with the

verbal description, it was actually 8.3

km (5.1 mi) long. Therefore, this unit is

being reduced from 8.3 km (5.1 mi) to

6.0 km (3.7 mi) in this final

determination.

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

Act

In our proposed determination of

critical habitat for the Great Lakes

population of the piping plover, we

asked for public comment on the

appropriate relationship between

approved HCPs and designated critical

habitat. After considering the comments

we received, we have chosen to evaluate

areas covered by an approved HCP for

the piping plover for exclusion under

the benefits-balancing test found in

section 4(b)(2) of the Act. This section

allows us to exclude areas upon

determination that the benefits of

excluding the area outweigh the benefits

of including the are in the critical

habitat designation, provided the

exclusion would not result in the

extinction of the species. Our

application of this balancing test to

lands covered by HCPs for the piping

plover is described in detail in the

preamble.

Presently, one approved HCP exists

for the piping plover in the Great Lakes

region. The Magic Carpet Woods

Association HCP covers approximately

792 m (2,600 ft) of shoreline within the

proposed Cathead Bay critical habitat

unit in Leelanau County, Michigan. This

plan addresses the piping plover as a

covered species and provides

conservation management and

protection for the species. We evaluated

this plan and determined that the

conservation management measures and

protection afforded to the piping plover

are sufficient to assure its conservation

on the involved lands. Among other

features, the plan requires residences be

set back from the beach, biological

monitoring, the presence of a piping

plover steward, containing garbage, and

restraining pets. Therefore, we have

excluded the lands covered by the

Magic Carpet Woods Association HCP

from the final determination of critical

habitat for the Great Lakes breeding

population of the piping plover.

Economic Analysis

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

to designate critical habitat on the basis

of the best scientific and commercial

data available and to consider the

economic and other relevant impacts of

designating a particular area as critical

habitat. We may exclude areas from

critical habitat upon a determination

that the benefits of such exclusions

outweigh the benefits of specifying such

areas as critical habitat. We cannot

exclude such areas from critical habitat

when such exclusion will result in the

extinction of the species.

The economic analysis must examine

the incremental economic effects of the

critical habitat designation above those

effects of the listing. Economic effects

are measured as changes in national

income, regional jobs, and household

income. A draft analysis of the

economic effects of the critical habitat

designation for the Great Lakes breeding

population of the piping plover was

prepared (Industrial Economics,

Incorporated, 2000) and made available

for public review (September 19 to

November 20, 2000; 65 FR 56530 and 65

FR 58258). We also completed a final

economic analysis that incorporated

public comments, information gathered

since the draft analysis, and changes to

the critical habitat designation. The

analysis found that there would be an

economic impact from the designation

that would vary on a situational level,

and that most of the impact would come

in the form of new section 7

consultations in unoccupied habitat

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22957

units. In the economic analysis, we

estimate that, over the next ten years,

the total costs by landowners associated

with consultation and technical

assistance attributable to this

rulemaking will range between $314,200

and $592,000. Our economic analysis

also recognizes that there may be costs

from delays associated with reinitiating

previously completed consultations

after the critical habitat designation is

made final. There may also be economic

effects due to the reaction of the real

estate market to critical habitat

designation, as real estate values may be

lowered due to a perceived increase in

the regulatory burden. However, we

believe this impact will be minor and

short-term. We have determined that

these economic impacts do not warrant

excluding any areas from the

designation.

A copy of the final economic analysis

is included in our administrative record

and may be obtained by contacting our

office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

This document has been designated as

significant and reviewed by the Office of

Management and Budget (OMB), in

accordance with Executive Order 12866.

OMB makes the final determination of

significance under Executive Order

12866.

(a) This rule will not have an annual

economic effect of $100 million or more

or adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. The Great

Lakes breeding population of piping

plover was listed as an endangered

species in 1985. In fiscal years 1992

through 2000, we conducted only one

formal section 7 consultation with other

Federal agencies to ensure that their

actions would not jeopardize the

continued existence of the piping plover

in the Great Lakes watershed. We have

also issued one section 10(a)(1)(B)

incidental take permit for an entity that

has prepared an HCP involving piping

plover habitat.

Approximately 236 km (146 mi) of the

areas encompassing proposed critical

habitat for the Great Lakes breeding

population of piping plovers are

currently unoccupied by piping plovers.

The remaining 89 km (55 mi) of the total

designated critical habitat are currently

occupied by piping plovers. Under the

Act, critical habitat may not be

adversely modified or destroyed by a

Federal agency action; it does not

impose any restrictions on non-Federal

entities unless they are conducting

activities funded or otherwise

sponsored or permitted by a Federal

agency (see Table 3 below). Section 7

requires Federal agencies to ensure that

they do not jeopardize the continued

existence of the species.

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

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially

affected by critical habitat

designation 2

Federal Activities Potentially

Affected.3 .........................................

Direct take and activities such as removing or destroying piping plover breeding habitat, whether by mechanical, chemical, or other

means (e.g., construction, road building, boat launch and marina

construction or maintenance, beach nourishment); recreational activities that significantly deter the use of suitable habitat areas by

piping plovers or alter habitat through associated maintenance activities (e.g., off-road vehicle parks, paved walking paths); sale, exchange, or lease of Federal land that contains suitable habitat that

may result in the habitat being destroyed or appreciably degraded

(e.g., shoreline development, building of recreational facilities such

as off-road vehicle parks, road building); activities that may result

in increased human activity and disturbance.

Activities by Federal agencies in

any unoccupied critical habitat

areas.

Private and other non-Federal

Activities Potentially Affected.4 ........

Direct take and activities such as removing or destroying piping plover habitat, whether by mechanical, chemical, or other means (e.g.,

construction, road building, boat launch and marina construction or

maintenance, beach nourishment) and appreciably decreasing

habitat value or quality (e.g., increased predation, invasion of exotic species, increased human presence or disturbance) that require a Federal action (permit, authorization, or funding).

Funding, authorization, or permitting actions by Federal Agencies in any unoccupied critical

habitat areas.

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

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

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

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

Based upon our experience with the

species and its needs, we conclude that

any Federal action or authorized action

that could potentially cause adverse

modification of designated occupied

critical habitat would currently be

considered ‘‘jeopardy’’ under the Act.

Accordingly, the designation of areas

within the geographic range occupied

by the piping plover will not likely have

any incremental impacts on what

actions may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. The designation of areas

outside the geographic range already

occupied by the species may have

incremental impacts on what activities

may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. However, our analysis did not

identify any significant incremental

effects. Non-Federal persons that do not

have a Federal ‘‘sponsorship’’ of their

actions are not restricted by the

designation of critical habitat, although

they continue to be bound by the

provisions of the Act concerning ‘‘take’’

of the species.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of piping plovers

22958 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

since the listing in 1985. The

prohibition against adverse modification

of critical habitat is not expected to

impose any substantial additional

restrictions to those that currently exist.

Because of the potential for impacts on

other Federal agency activities, we will

continue to review this action for any

inconsistencies with other Federal

agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and,

as discussed above, we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

significant incremental effects in areas

of occupied habitat. The critical habitat

designation may have some additional

effects on the unoccupied areas of

proposed critical habitat, but we expect

these to be minor.

(d) OMB has determined that this rule

may raise novel legal or policy issues

and, as a result, this rule has undergone

OMB review.

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

et seq.)

In the economic analysis, we

determined that designation of critical

habitat will not have a significant effect

on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above, this

designation of critical habitat for the

Great Lakes breeding population of the

piping plover is not expected to have a

significant economic impact. As

indicated on Table 1 (see Critical

Habitat Designation section), we

designated property owned by Federal,

State, Tribal, and local governments and

private property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potential

concerns are:

(1) Regulation of activities affecting

waters of the United States by the U.S.

Army Corps of Engineers under section

404 of the Clean Water Act;

(2) Regulation of water flows, water

delivery, and diversion by Federal

agencies;

(3) Sale, exchange, or lease of lands

owned by a Federal agency;

(4) Road construction and

maintenance and right-of-way

designation;

(5) Funding of low-interest loans to

facilitate the construction of low-income

housing by the Department of Housing

and Urban Development;

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

Emergency Management Agency;

(7) Promulgation of air and water

quality standards under the Clean Air

Act and the Clean Water Act and the

cleanup of toxic waste and superfund

sites under the Resource Conservation

and Recovery Act (RCRA) and the

Comprehensive Environmental

Response, Compensation, and Liability

Act by the U.S. Environmental

Protection Agency;

(8) Issuance of Endangered Species

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

Fish and Wildlife Service; and

(9) Activities funded, carried out, or

authorized by any Federal agency.

Some of these activities sponsored by

Federal agencies within the critical

habitat areas are carried out by small

entities (as defined by the Regulatory

Flexibility Act) through contract, grant,

permit, or other Federal authorization.

As discussed above, these actions are

largely required to comply with the

listing protections of the Act, and the

designation of critical habitat is not

anticipated to have significant

additional effects on these activities in

areas of critical habitat occupied by the

species. Designation of critical habitat in

areas that are unoccupied by this

species will not likely result in

significant additional effects because

only actions involving a Federal nexus

will be affected.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

final determination will have no

additional restrictions.

Small Business Regulatory Enforcement

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

In the economic analysis, we

determined that designation of critical

habitat will not cause (a) any effect on

the economy of $100 million or more,

(b) any increases in costs or prices for

consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises. Refer to

the final economic analysis for a

discussion of the effects of this

determination.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

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

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will be

affected only to the extent that any of

their actions involving Federal funding

or authorization must not destroy or

adversely modify the critical habitat in

areas where they have not previously

undergone consultation to avoid

jeopardizing the species.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications, and a

takings implication assessment is not

required. This determination will not

‘‘take’’ private property and will not

alter the long-term value of private

property. As discussed above, the

designation of critical habitat affects

only Federal agency actions. The rule

will not increase or decrease the current

restrictions on private property

concerning take of the piping plover.

Due to current public knowledge of the

species protection, the prohibition

against take of the species both within

and outside of the designated areas, and

the fact that critical habitat provides no

incremental restrictions, we do not

anticipate that property values will be

affected by the critical habitat

designation. While real estate market

values may temporarily decline

following designation, due to the

perception that critical habitat

designation may impose additional

regulatory burdens on land use, we

expect any such impacts to be short

term. Additionally, critical habitat

designation does not preclude

development of HCPs and issuance of

incidental take permits. Landowners in

areas that are included in the designated

critical habitat will continue to have the

opportunity to utilize their property in

ways consistent with the conservation

of the piping plover.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. In keeping

with Department of the Interior and

Department of Commerce policy, the

Service requested information from and

coordinated development of this critical

habitat proposal with appropriate State

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22959

resource agencies in Minnesota,

Wisconsin, Michigan, Illinois, Indiana,

Ohio, Pennsylvania, and New York, as

well as during the listing process. We

will continue to coordinate any future

designation of critical habitat for the

Great Lakes piping plover with the

appropriate State agencies. The

designation of critical habitat for the

piping plover imposes few additional

restrictions to those currently in place

and, therefore, has little incremental

impact on State and local governments

and their activities. The designation

may have some benefit to these

governments in that the areas essential

to the conservation of the species are

more clearly defined, and the primary

constituent elements of the habitat

necessary for the conservation of the

species are specifically identified. This

definition and identification may assist

these local governments in long-range

planning (rather than waiting for caseby-case section 7 consultations to

occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that the rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

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

critical habitat in accordance with the

provisions of the Act. The

determination uses standard property

descriptions and identifies the primary

constituent elements within the

designated areas to assist the public in

understanding the habitat needs of the

Great Lakes breeding population of

piping plover.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements for

which Office of Management and

Budget approval under the Paperwork

Reduction Act is required.

National Environmental Policy Act

We have determined that an

Environmental Assessment and/or an

Environmental Impact Statement as

defined by the National Environmental

Policy Act of 1969 need not be prepared

in connection with regulations adopted

pursuant to section 4(a) of the

Endangered Species Act as amended. A

notice outlining our reason for this

determination was published in the

Federal Register on October 25, 1983

(48 FR 49244). This final determination

does not constitute a major Federal

action significantly affecting the quality

of the human environment.

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

Government’’ (59 FR 22951), Executive

Order 13175, and the Department of the

Interior’s requirement at 512 DM 2, we

readily acknowledge our responsibility

to communicate meaningfully with

recognized Federal Tribes on a

Government-to-Government basis. We

believe that certain Tribal lands are

essential for the conservation of the

piping plover because they support

essential populations and habitat. We

coordinated with the Bad River Band of

Lake Superior Chippewa Indians in

determining which Tribal lands

constitute critical habitat, and have

included that area in the critical habitat

designation.

References Cited

A complete list of all references cited

in this proposed rule is available upon

request from the Fort Snelling Regional

Office (see ADDRESSES section).

Author

The primary author of this notice is

Laura J. Ragan (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and record

keeping requirements, Transportation.

Regulations Promulgation

For the reasons given in the preamble,

we amend part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

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

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

625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11(h) revise the first entry

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

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic Range

Vertebrate population

where endangered or

threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

BIRDS

*******

Plover, piping ..... Charadrius

melodus.

U.S.A. Great Lakes

northern Great Plains,

Atlantic and Gulf

coasts, PR, VI), Canada, Mexico, Bahamas, West Indies.

Great Lakes watershed

in States of IL, IN, MI,

MN, NY, OH, PA, and

WI and Canada

(Ont.)..

E 211 17.95(b) NA

*******

3. Amend § 17.95(b) by adding critical

habitat for the Great Lakes piping plover

(Charadrius melodus) under paragraph

(b) in the same alphabetical order as this

species occurs in § 17.11 (h) to read as

follows:

§ 17.95 Critical habitat-fish and wildlife.

* * * * *

(b) Birds.

* * * * *

PIPING PLOVER (Charadrius

melodus)—Great Lakes Breeding

Population

1. Critical habitat units are depicted

for St. Louis County, Minnesota;

Douglas, Ashland, Marinette, and

Manitowoc Counties, Wisconsin; Lake

County, Illinois; Porter County, Indiana;

Erie and Lake Counties, Ohio; Erie

County, Pennsylvania; Oswego and

22960 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Jefferson Counties, New York; and

Alger, Schoolcraft, Luce, Mackinac,

Chippewa, Iosco, Presque Isle,

Cheboygan, Emmet, Charlevoix,

Leelanau, Benzie, Mason, and

Muskegon Counties, Michigan, on the

maps below.

2. i. The primary constituent elements

required to sustain the Great Lakes

breeding population of the piping

plover are found on Great Lakes islands

and mainland shorelines that support

open, sparsely vegetated sandy habitats,

such as sand spits or sand beaches, that

are associated with wide, unforested

systems of dunes and inter-dune

wetlands. In order for habitat to be

physically and biologically suitable for

piping plovers, it must have a total

shoreline length of at least 0.2 km (0.12

mi) of gently sloping, sparsely vegetated

(less than 50 percent herbaceous and

low woody cover) sand beach with a

total beach area of at least 2 hectares

(ha) (5 acres (ac)) and a low level of

disturbance from human activities and

from domestic animals. As the nesting

season progresses, the level of

disturbance tolerated by piping plovers

increases. A lower level of disturbance

is required at the beginning of the

nesting period during nest site selection,

egg laying, and incubation. Beach

activities that may be associated with a

high level of disturbance include, but

are not limited to, walking pets off

leash, loud noise, driving ATVs, or

significantly increased human presence.

The level of disturbance is relative to

the proximity to the nest, intensity, and

frequency of these and other similar

activities.

ii. Appropriately sized sites must also

have areas of at least 50 meters (m) (164

feet (ft)) in length where the beach

width is more than 7 m (23 ft), there is

protective cover for nests and chicks,

and the distance to the treeline (from

the normal high water line to where the

forest begins) is more than 50 m (164 ft).

Beach width is defined as the distance

from the normal high water line to the

foredune (a low barrier dune ridge

immediately inland from the beach)

edge, or to the sand/vegetation

boundary in areas where the foredune is

absent. The beach width may be

narrower than 7 m (23 ft) if appropriate

sand and cobble areas of at least 7 m (23

ft) exist between the dune and the

treeline. Protective cover for nests and

chicks consists of small patches of

herbaceous vegetation, cobble (stones

larger than 1 cm (0.4 inches (in))

diameter), gravel (stones smaller than 1

cm (0.4 in) diameter), or debris such as

driftwood, wrack, root masses, or dead

shrubs.

iii. The dynamic ecological processes

that create and maintain piping plover

habitat are also important primary

constituent elements. These geologically

dynamic lakeside regions are controlled

by processes of erosion, accretion, plant

succession, and lake-level fluctuations.

The integrity of the habitat components

depends upon regular sediment

transport processes, as well as episodic,

high-magnitude storm events. By their

nature, Great Lakes shorelines are in a

constant state of change; habitat features

may disappear, or be created nearby.

The critical habitat boundaries reflect

these natural processes and the dynamic

character of Great Lakes shorelines.

3. Critical habitat does not include

existing features and structures, such as

buildings, marinas, paved areas, boat

ramps, piers, bridges, lighthouses, and

similar structures not containing one or

more of the primary constituent

elements.

Note: Maps follows:

BILLING CODE 4310–55–P

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22961

22962 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Map of Units MN/WI–1, WI–1, WI–2,

and WI–3

MN/WI–1: St Louis County, Minnesota.

From USGS 1:24,000 quadrangle map West

Duluth, Minnesota (1953, photorevised

1969). Lands 500 m (1640 feet) inland from

normal high water line on Interstate Island in

T49N R14W S10

WI–1: Douglas County, Wisconsin. From

USGS 1:24,000 quadrangle maps Parkland,

Wisconsin (1954, photorevised 1975) and

Superior, Wisconsin (1954, photorevised

1983). Lands 500 meters (1640 feet) inland

from normal high water line from the mouth

of Dutchman Creek west-northwestward

along the Lake Superior shoreline to the

breakwall forming the Superior Front

Channel opening to Lake Superior at the

Douglas and St. Louis County line.

WI–2: Ashland County, Wisconsin. From

USGS 1:24,000 quadrangle maps Cedar,

Wisconsin (1964, photorevised 1975);

Chequamegon Point, Wisconsin (1964,

photorevised 1975); and Long Island,

Wisconsin (1964). Lands 500 meters (1640

feet) inland from normal high water line from

the southern boundary of T48N R3W, section

1 northwestward along the Lake Superior

shoreline to Chequamegon Point Light.

WI–3: Ashland County, Wisconsin. From

USGS 1:24,000 quadrangle map Michigan

Island, Wisconsin (1963). Lands 500 meters

(1640 feet) inland from normal high water

line on Michigan Island within T51N R1W

sections 28, 20, and 21.

Note: Map follows:

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22963

Map of Units WI–4 and WI–5

WI–4: Marinette County, Wisconsin. From

USGS 1:24,000 quadrangle map Marinette

East, Wisconsin (1963, photorevised 1969).

Lands 500 m (1640 ft) inland from normal

high water line from the end of Leonard

Street at Red Arrow Park in T30N R24E

section 9 south-southeastward to the south

end of Seagull Bar including nearshore sand

bars.

WI–5: Manitowoc County, Wisconsin.

From USGS 1:24,000 quadrangle map Two

Rivers, Wisconsin (1978). Lands 500 m (1640

ft) inland from normal high water line from

the southwest property boundary of Point

Beach State Forest near Neshotah Park in the

city of Twin Rivers (T20N R25E section 31)

northwestward along the Lake Michigan

shoreline to the south boundary of section 9,

T20N R25E, at Rawley Point.

Note: Map follows:

22964 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Map of Units IL–1 and IN–1

IL–1: Lake County, Illinois. From USGS

1:24,000 quadrangle maps Zion, Illinois

(1993) and Waukegan, Illinois (1993). Lands

500 m (1640 ft) inland from normal high

water line from 17th Street and the Lake

Michigan shoreline in Illinois Beach State

Park T46N R12E section 14 (Zion, Ill. quad)

southward along the Lake Michigan shoreline

(excluding the portion of Lake Michigan

shoreline from dividing line of T46N R12E

sections 23 and 26 to 500 m (1,640 ft) south

of the Illinois Beach State Park Lodge and

Conference Center) to the Waukegan Beach

breakwall at North Beach Park T45N R12E

section 22 (Waukegan quad).

IN–1: Porter County, Indiana. From USGS

1:24,000 quadrangle maps Ogden Dunes,

Indiana (1991) and Dune Acres, Indiana

(1991). Lands 500 m (1640 ft) inland from

normal high water line from the western

boundary of the Cowels Bog/Dune Acres

Unit, (located east of the Port of Indiana and

the NIPSCO Baily Generating Station) eastnortheastward along the Indiana Dunes State

Park to Kemil Road at Beverly Shores.

Note: Map follows:

Map of Units MI–1 through MI–23

MI–1: Chippewa, Luce, and Alger

Counties, Michigan. From USGS 1:24,000

quadrangle maps Whitefish Point, Michigan

(1951); Vermilion, Michigan (1951); Betsy

Lake North, Michigan (1968); Muskallonge

Lake East, Michigan (1968); Muskallonge

Lake West, Michigan (1968); and Grand

Marais, Michigan (1968). Lands 500 m (1640

ft) inland from normal high water line within

the junction of the southern boundary of

T50N R5W section 6 (Whitefish Point quad)

and including the shore of Lake Superior

following the shoreline northeast to

Whitefish Point, then following the Lake

Superior shoreline westward around the

point(Vermilion SE, Vermilion quads),

crossing the Luce County line and continuing

westward (Betsy Lake North, Betsy Lake

Northwest) across the Alger County line

(Grand Marais East) to Lonesome Point and

the East Bay of the Sucker River (Grand

Marais quad) and following the shoreline

along the inner bay of Grand Marais Harbor

past Carpenter Creek and ending at the

shoreline north of the east end of the private

road originating at the junction of Highway

58, Morris Road, and Veteran Road. The unit

then continues from the breakwall north of

the harbor, along the Lake Superior shoreline

of Grand Marais near the former Coast Guard

station (Grand Marais quad) westward along

the Lake Superior shoreline to the Pictured

Rocks National Lakeshore property boundary

in T49N R14W section 1.

MI–2: Mackinac County, Michigan. From

USGS 1:24,000 quadrangle map Pointe Aux

Chenes, Michigan (1964, photorevised 1975).

Lands 500 m (1640 ft) inland from normal

high water line from the mouth of the Pointe

Aux Chenes river following the Lake

Michigan shoreline northwestward to the

Hiawatha National Forest property boundary

at the junction of T41N R5W sections 23 and

26.

MI–3: Schoolcraft and Mackinac Counties,

Michigan. From USGS 1:24,000 quadrangle

map Hughes Point, Michigan (1972). Lands

500 m (1640 ft) inland from normal high

water line from the westernmost breakwall at

the Port Inland Gaging Station following the

Lake Michigan shoreline eastward along

Hughes Point to the mouth of Swan Creek.

MI–4: Emmet County, Michigan. From

USGS 1:24,000 quadrangle maps Big Stone

Bay, Michigan (1964, photoinspected 1975);

Waugoshance Island, Michigan (provisonal

1982); Bliss, Michigan (1982); Cross Village,

Michigan (1982). Lands 500 m (1640 ft)

inland from normal high water line from the

junction of the northeast corner of T39N R5W

section 28 (Big Stone Bay quad) and Lake

Michigan shoreline westward along the

shoreline around and including Temperance

and Waugoshance islands and any nearshore

sandbars (Waugoshance Island quad), along

the southern side of Waugoshance Point

following the shoreline southeastward to Big

Sucker Creek, continuing southward and

southwestward along Sturgeon Bay Point

(Bliss quad) and continuing southward along

the Lake Michigan shoreline to the southwest

boundary of T37N R6W section 5.

MI–5: Emmet County, Michigan. From

USGS 1:24,000 quadrangle map Forest Beach,

Michigan. Lands 500 m (1640 ft) inland from

normal high water line from the junction of

Lake Michigan shoreline and the northwest

boundary of T36N R6W section 30 southsoutheastward along Lake Michigan

shoreline to the junction of the shoreline and

the southeast corner of T35N R6W section 9.

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22965

MI–6: Emmet County, Michigan. From

USGS 1:24,000 quadrangle map Harbor

Springs, Michigan. Lands 500 m (1640 ft)

inland from normal high water line from the

mouth of Tannery Creek north along Lake

Michigan shoreline of Little Traverse Bay

crossing the northern property boundary of

Petoskey State Park to include the shoreline

of Mononaqua Beach within T35N R5W

sections 22 and 21.

MI–7: Charlevoix County, Michigan. From

USGS 1:24,000 quadrangle maps Ironton,

Michigan (1983) and Charlevoix, Michigan

(1983). Lands 500 m (1640 ft) inland from

normal high water line within T34N R8W

section 14.

MI–8: Charlevoix County, Michigan. From

USGS 1:24,000 quadrangle map Charlevoix,

Michigan (1983). Lands 500 m (1640 ft)

inland from normal high water line from the

junction of the line separating T34N R8W

section 31 and T33N R8W section 6 with the

Lake Michigan shore then extends

southwestward along the shoreline and

including Fisherman’s Island to the

Fisherman’s Island State Park property

boundary at the end of Lakeshore Drive

where it meets the line between T33N R9W

sections 12 and 1.

MI–9: Charlevoix County, Michigan. From

USGS 1:24,000 quadrangle maps Garden

Island West, Michigan (1980) and Beaver

Island North (1986). Lands 500 m (1640 ft)

inland from normal high water line from

Indian Point (Garden Island West quad)

T39N R10W section 20 southward along the

west Lake Michigan shoreline of Beaver

Island including Donegal Bay and McCauley

Point and ending at the junction of the

dividing line of T39 N R10W and T38N

R10W and the Lake Michigan shoreline

(Beaver Island North quad).

MI–10: Charlevoix County, Michigan. From

USGS 1:24,000 quadrangle map Beaver

Island North (1986). Lands 500 m (1640 ft)

inland from normal high water line from the

junction of Lake Michigan and the northwest

corner of T38N R11W section 25 southward

along the Lake Michigan shoreline to the

junction of the Lake Michigan shoreline and

the dividing line between T39N and T38N

R11W.

MI–11: Charlevoix County, Michigan. From

USGS 1:24,000 quadrangle map High

Island(1986). Lands 500 m (1640 ft) inland

from normal high water line within T39N

R11W sections 27 and 32 and T38N R11W

section 5.

MI–12: Leelanau County, Michigan. From

USGS 1:24,000 quadrangle maps Northport,

Michigan (provisional 1983)and Northport

NW, Michigan (provisional 1983). Lands 500

m (1640 ft) inland from normal high water

line from the intersection of the Lake

Michigan shoreline and the line between

T32N R11W section 12 and T32N R10W

section 7—excluding lands covered by the

Magic Carpet Woods Association HCP,

approximately 2,600 feet of frontage on

Cathead Bay within the east half of the

southwest quarter and the west half of the

southeast quarter of Section 14, T32N, R11W

in Leelanau Township—then following the

shoreline southwestward and past Cathead

Point in T32N R11W section 15 (Northport

quad) southwestward along the Lake

Michigan shoreline to the intersection of the

shoreline with the southern boundary of

T32N R11W section 16 north of Christmas

Cove (Northport NW quad).

MI–13: Leelanau County, Michigan. From

USGS 1:24,000 quadrangle map South Fox

Island (provisional 1986). Lands 500 m (1640

ft) inland from normal high water line within

T34N R13W sections 15, 16, and 21 and

T35R13W section 30.

MI–14: Leelanau County, Michigan. From

USGS 1:24,000 quadrangle map North

Manitou Island (provisional 1983). Lands 500

m (1640 ft) inland from normal high water

line within T31N R14W sections 22, 23, 27

and 28 on North Manitou Island.

MI–15: Leelanau County, Michigan. From

USGS 1:24,000 quadrangle maps Glen Arbor,

Michigan (1983); Glen Haven, Michigan

(1983); and Empire, Michigan (1983). Lands

500 m (1640 ft) inland from normal high

water line from Crystal Run in T29N R14W

section 14 (Glen Arbor quad) southsouthwestward and westward along the Lake

Michigan shoreline, then westnorthwestward to Sleeping Bear Point (Glen

Haven quad) and southwestward and south

to the southern Sleeping Bear Dunes National

Lakeshore property boundary in T28N R15W

section 13 (Empire quad).

MI–16: Benzie County, Michigan. From

USGS 1:24,000 quadrangle maps Empire,

Michigan (1983); Beulah, Michigan

(provisional 1983); and Frankfort, Michigan

(1983). Lands 500 m (1640 ft) inland from

normal high water line from Esch Road in

T27N R15W section 1 (Empire quad) southsouthwestward along the shoreline of Lake

Michigan at Platte Bay (Beulah quad), then

westward along the shoreline of Lake

Michigan to Platte River Point (Frankfort

quad) continuing west-southwestward to the

Sleeping Bear Dunes National Lakeshore

property boundary at Sutter Road in T27N

R16Wsection 26. Continuing from the

junction of Lake Michigan shoreline and

Point Betsie Natural Area property boundary

in T27N R16W section 33 southward along

the Lake Michigan shoreline to include all

shoreline within T26N16W section 4.

MI–17: Mason County, Michigan. From

USGS 1:24,000 quadrangle maps Manistee

NW, Michigan (provisional 1923) and

Hamlin Lake, Michigan (1982). Lands 500 m

(1640 ft) inland from normal high water line

from the mouth of Cooper Creek T20N R18W

section 13 (Manistee NW quad) southsouthwestward following the Lake Michigan

shoreline along Big Sable Point (Hamlin Lake

quad) to the mouth of the Big Sable River

T19N R18W section 19.

MI–18: Muskegon County, Michigan. From

USGS 1:24,000 quadrangle map Muskegon

West (1972, photoinspected 1980) and Dalton

(1983). Lands 500 m (1640 ft) inland from

normal high water line from the north

breakwall of the canal joining Muskegon

Lake and Lake Michigan (Muskegon West

quad) north along the Lake Michigan

shoreline to the northern Muskegon State

Park property boundary at the shoreline

(Dalton quad).

MI–19: Chippewa County, Michigan. From

USGS 1:24,000 quadrangle maps Albany

Island, Michigan (1964, photoinspected

1976) and DeTour Village, Michigan (1964).

Lands 500 m (1640 ft) inland from normal

high water line from the State Forest

boundary in T41N R3E section 11 (Albany

Island quad) and follows the Lake Huron

shoreline east south eastward around and

including St. Vital Point and then north to

the mouth of Joe Straw Creek in T41N R3E

section 12(De Tour Village quad).

MI–20: Cheboygan County, Michigan.

From USGS 1:24,000 quadrangle maps

Cheboygan, Michigan (1982) and Cordwood

Point, Michigan (1982). Lands 500 m (1640

ft) inland from normal high water line from

the junction of the Lake Huron shoreline and

the western boundary of T38N R1W section

22 (Cheboygan quad) eastward along the Lake

Huron shoreline of Grass Bay, continuing to

the western boundary of T38N R1E section

20 (Cordwood Point quad).

MI–21: Presque Isle County, Michigan.

From USGS 1:24,000 quadrangle maps

Roger’s City, Michigan (1971) and Moltke,

Michigan (1971). Lands 500 m (1640 ft)

inland from normal high water line within

T35N R5E section 6 and T36N R5E section

31 (Roger’s City quad) continuing

northwestward to the junction of Nagel Rd

and Forty Mile Road at the junction of T36N

R4E section 25 and T36N R5E section 30

(Moltke quad).

MI–22: Presque Isle County, Michigan.

From USGS 1:24,000 quadrangle map

Thompson’s Harbor, Michigan (1971). Lands

500 m (1640 ft) inland from normal high

water line from Black Point to Grand Lake

Outlet including shoreline within T34N R7E

sections 10, 11, 14, and 15.

MI–23: Iosco County, Michigan. From

USGS 1:24,000 quadrangle map East Tawas,

Michigan (1989). Lands 500 m (1640 ft)

inland from normal high water line from the

Tawas Sate Park boundary at the U.S. Coast

Guard Station on the east side of Tawas Point

southward along the Lake Huron shoreline

including offshore sand spits and along the

tip of the point and northeastward including

all shoreline in T22N R8E section 34.

Note: Map follows:

22966 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22967

Map of Units OH–1 and OH–2

OH–1: Erie County, Ohio. From USGS

1:24,000 quadrangle maps Huron, Ohio

(1969) and Sandusky, Ohio (1969,

photorevised 1975). Lands 500 m (1640 ft)

inland from normal high water line from the

mouth of Sawmill Creek (Huron quad)

northwestward along the Lake Erie shoreline

to the western property boundary of Sheldon

Marsh State Natural Area in T6N R23W

(Sandusky quad) at the point where the

Cedar Point causeway turns west and south

toward Sandusky.

OH–2: Lake County, Ohio. From USGS

1:24,000 quadrangle map Mentor, Ohio

(1963, revised 1992). Lands 500 m (1640 ft)

inland from normal high water line from the

eastern boundary line Headland Dunes

Nature Preserve westward along the Lake

Erie shoreline to the western boundary of the

Nature Preserve and Headland Dunes State

Park.

Note: Map follows:

22968 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

Map of Unit PA–1

PA–1: Erie County, Pennsylvania. From

USGS 1:24,000 quadrangle map Erie North,

Pennsylvania (1957, revised 1969 and 1975,

photoinspected 1977). Lands 500 m (1640 ft)

inland from normal high water line from the

lighthouse north of Peninsula Drive on the

north side of Presque Isle (located at

approximately 042 degrees 09′ 57.41′′ N and

080 degrees 06′57.57′′ W) eastward along the

Lake Erie shoreline around the tip of Presque

Isle peninsula to the southern terminus of the

hiking trail on the southeast side of Gull

Point (located at approximately 042 degrees

10′ 3.13′′ N and 080 degrees 04′′ 29.56′′ W).

It includes any new beach habitat that may

accrete along the present shoreline portion of

the unit.

Note: Map follows:

Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations 22969

Map of Unit NY–1

NY–1: Oswego County, New York. From

USGS 1:24,000 quadrangle maps Pulaski,

New York (1956), Ellisburg, New York

(1958), and Henderson, New York (1959).

Lands 500 m (1640 ft) inland from normal

high water line from the mouth of the

Salmon River (Pulaski quad) northward along

the Lake Ontario shoreline to the Oswego

County-Jefferson County line (Ellisburg quad)

and northward to the Eldorado Road

(Henderson quad).

Note: Map follows:

* * * * * Dated: April 30, 2001.

Joseph E. Doddridge,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–11205 Filed 5–2–01; 12:41 pm]

BILLING CODE 4310–55–C