[Federal Register Volume 72, Number 214 (Tuesday, November 6, 2007)]
[Rules and Regulations]
[Pages 62736-62766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5460]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Critical Habitat Revised 
Designation for the Cape Sable Seaside Sparrow; Final Rule

Federal Register / Vol. 72, No. 214 / Tuesday, November 6, 2007 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV79


Endangered and Threatened Wildlife and Plants; Critical Habitat 
Revised Designation for the Cape Sable Seaside Sparrow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
the designation of critical habitat for the endangered Cape Sable 
seaside sparrow (Ammodramus maritimus mirabilis) under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 84,865 
acres (ac) (34,344 hectares (ha)) fall within the boundaries of the 
designation. The critical habitat is located in Miami-Dade County, 
Florida.

DATES: This rule becomes effective on December 6, 2007.

FOR FURTHER INFORMATION CONTACT: Tylan Dean, South Florida Ecological 
Services Office (see ADDRESSES); telephone 772-562-3909; facsimile 772-
562-4288. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339, 7 days a week and 24 hours a day.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only topics directly relevant to the 
revised designation of critical habitat in this rule. For more 
information on the Cape Sable seaside sparrow, please refer to the 
South Florida Multi-species Recovery Plan, available at the South 
Florida Ecological Services Web site http://www.fws.gov/verobeach, and 
the proposed rule to designate critical habitat published in the 
Federal Register on October 31, 2006 (71 FR 63980).

Previous Federal Actions

    On December 20, 2000, Biodiversity Legal Foundation filed a lawsuit 
in the U.S. District Court for the District of Columbia alleging that 
the Service had not complied with the Act by failing to issue a 12-
month finding as to how it planned to proceed with the petitioned 
revision to critical habitat and that the revision was withheld or 
unreasonably delayed under the Administrative Procedure Act (5 U.S.C. 
551 et seq.). The Court ruled that the Service complied with the Act by 
issuing the finding and was exercising reasonable discretion in 
postponing developing a proposed rule to revise critical habitat 
(Biodiversity Legal Foundation v. Norton, 285 F. Supp. 2d (D.D.C. 
2003)), but ordered the Service to specify a date on which we would 
begin work on a rule to revise critical habitat for the Cape Sable 
seaside sparrow and estimate how long the process would take. The 
Service provided a proposed schedule for revision of critical habitat 
to the Court, and on December 31, 2003, the Court embodied the 
Service's proposed timeframe in a Court Order, directing the Service to 
complete the critical habitat rule no later than October 24, 2007. For 
more information on previous Federal actions concerning the Cape Sable 
seaside sparrow, refer to the proposed critical habitat designation 
published in the Federal Register on October 31, 2006 (71 FR 63980), 
and in our notice of availability of the draft economic analysis of the 
proposed revised critical habitat published on August 17, 2007 (72 FR 
46189).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the sparrow in the proposed rule 
published (71 FR 63980), and again in the notice of availability (72 FR 
46189). On both occasions, we contacted appropriate Federal, State, and 
local agencies; Tribal interests; species' experts; and other 
interested parties and invited them to comment on the proposed rule. 
One public hearing was held on August 29, 2007, in Homestead, Florida 
during the second comment period.
    During the first comment period that opened on October 31, 2006, 
and closed on January 2, 2007, we received comments from 16 entities 
that directly addressed the proposed critical habitat designation: 5 
from peer reviewers, 1 from a Tribe, 2 from State and local 
governmental agencies, and 8 from organizations or individuals. We 
received 3 requests for a public hearing, all from entities in the 
Miami-Dade County, Florida, area. During the second comment period that 
opened on August 17, 2007, and closed on September 17, 2007, including 
the public hearing, we received comments from 28 entities that directly 
addressed the proposed critical habitat designation and/or the draft 
economic analysis: 1 from a peer reviewer, 2 from Federal agencies, 2 
from a Tribe, 4 from State and local governmental agencies, and 19 from 
organizations or individuals. Nine commenters supported the designation 
of critical habitat for the sparrow and 20 opposed the designation. 
Fifteen commenters provided suggestions or information, but did not 
indicate support or opposition to the critical habitat designation. 
Comments received were grouped into 70 issues specifically relating to 
the proposed critical habitat designation for the sparrow, and are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we made formal requests for peer reviewers from the Florida 
Fish and Wildlife Conservation Commission (FWC), the South Florida 
Water Management District (SFWMD), and the Miccosukee Tribe of Indians 
of Florida. As a result, we solicited expert opinions from nine 
knowledgeable individuals with scientific expertise that included 
sparrow biology, conservation biology, endangered species issues, 
hydrology, and/or Everglades restoration. We received responses from 
five of these experts. Four of the peer reviewers generally concurred 
with our methods and conclusions, and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. One of the peer reviewers was not in agreement with our methods 
or conclusions. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the sparrow, and addressed them in the following summary.

Peer Reviewer Comments

    (1) Comment: Critical habitat should include all locations occupied 
during point count surveys, because specific locations may be 
contiguous with the larger meta population and subsequently essential 
to the conservation of the sparrow. Connectivity between occupied 
locations is extremely important.
    Our Response: Critical habitat designation does not include all 
areas that may be used by sparrows or all areas that are important to 
sparrows. The units proposed for designation focused on areas that 
contain physical and biological features in the spatial arrangement and 
quantity that are essential to the conservation of the sparrow that 
require special management consideration or protection. Additionally, 
areas not

[[Page 62737]]

known to be occupied by sparrows that may serve to maintain 
connectivity among disjunct units are not readily identifiable, and we 
do not currently possess information about the habitat characteristics 
necessary to support movement by sparrows. Consequently, we cannot make 
the determination required by the Act to designate unoccupied habitat, 
that the area is essential to the conversation of the species. 
Therefore, such areas are not designated as critical habitat. See 
``Critical Habitat'' section below for additional information on the 
methods and criteria for designating critical habitat and the 
regulatory protections for areas designated as critical habitat, as 
well as areas outside of the designation that may be important to the 
species.
    (2) Comment: Specific information on what constitutes a typical 
sparrow territory within the marl prairie habitat type and a broad 
mention (based on Werner (1975) and Pimm et al. 2002) of the special 
foraging microhabitat patch-type used by Cape Sable seaside sparrows 
should be included along with comments on nest sites.
    Our Response: We agree that specific information on what 
constitutes a ``typical'' territory, or information on detailed 
microhabitat characteristics of foraging or nesting sites, is not 
discussed in detail. While these characteristics may be important to 
sparrows, we do not think the information presented in the publications 
referenced has been sufficiently confirmed across the full breadth of 
area, habitats, and conditions occupied by sparrows to allow us to 
characterize these features adequately. We instead chose to describe 
the habitat on a broader, more general level while discussing the 
functions the habitat must provide (e.g., structural support for nests, 
cover and refugia from predators, foraging substrate under a variety of 
hydrologic conditions).
    (3) Comment: Designating Unit 1 as critical habitat is crucial and 
well-justified to protect what historically was a major subpopulation 
(A) of the Cape Sable seaside sparrow, the restoration of which recent 
analyses suggest is essential to recovery.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding 
proposed Unit 1 outweigh the benefits of inclusion and that such 
exclusion will not result in the extinction of the species. Therefore, 
we have excluded Unit 1 from critical habitat. See ``Application of 
section (4)(b)(2) of the Act'' below for further explanation.
    (4) Comment: Unit 2 should be included in the designation as it 
provides the only area of what historic evidence suggests was an 
important habitat type for the Cape Sable seaside sparrow.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Unit 
2 outweigh the benefits of inclusion and that such exclusion will not 
result in the extinction of the species. Therefore, we have excluded 
Unit 2 from critical habitat. See ``Application of section (4)(b)(2) of 
the Act'' below for further explanation.
    (5) Comment: Cordgrass marshes should be designated as critical 
habitat to protect them for possible future reestablishment of sparrow 
populations.
    Our Response: There are two areas within the range of the Cape 
Sable seaside sparrow (Cape Sable and Ochopee) that contain cordgrass 
that are no longer occupied by sparrows. The first area is the sparrow 
habitat in Cape Sable which has been changing significantly from 
cordgrass marshes to mangroves and mud flats since a 1935 hurricane, 
and sparrows are considered to have been extirpated from this area 
since 1981 (Kushlan and Bass 1983, p. 142). The second area is Ochopee, 
for which Werner (1975, p. 42) reported that habitat occupied by 
sparrows was changing from cordgrass marshes to other species, and 
mangroves were encroaching. Sparrows were extirpated from this area by 
1981 (Kushlan and Bass 1983, p. 143), and there is little or no 
remaining suitable habitat in the area.
    The Act provides for designating areas that are occupied at the 
time of listing that contain those physical and biological features 
essential to the conservation of the species. The Act also provides for 
designating areas that are unoccupied at the time of listing when such 
areas are essential for the conservation of a listed species. For the 
sparrow, an area was considered for designation as critical habitat 
when it supports some portion of a subpopulation and meets either of 
the following criteria: (1) Possesses one or more of the primary 
constituent elements (PCEs) and was occupied at the time of listing by 
sparrows, or (2) is determined to be currently occupied by the Cape 
Sable seaside sparrow through annual surveys conducted during the 
period 1981 to present. Those areas where sparrows were recorded from 
1981 to present represent the areas that we have determined were 
occupied at the time of listing of the species. We considered 
designating units for the sparrow where it is entirely extirpated from 
those units and determined that doing so is not essential for its 
conservation.
    (6) Comment: Where are the 100,000 acres that are proposed to be 
eliminated from critical habitat and what is the justification for 
their removal?
    Our Response: The revised critical habitat is not based on the 
previous designation, and all areas of potential sparrow habitat were 
considered equally when developing this final designation. The critical 
habitat boundaries in the 1977 designation were based on section-
township-range boundaries, and only delineated relatively large, 
general areas within which sparrows were known to occur at that time. 
Consequently, many areas originally designated were never Cape Sable 
seaside sparrow habitat, such as forested areas of Long Pine Key in 
Everglades National Park, dwarf cypress forests (also Everglades 
National Park), deep water slough communities, and agricultural areas. 
These areas, therefore, are not being proposed for inclusion in the 
revised critical habitat designation, and we have instead sought to 
accurately delineate only the specific areas that were important to 
sparrows in the proposed revision. Differences may be reviewed by 
comparing the boundaries identified in this rule and in the 1977 (42 FR 
47840) rule, and a general discussion of the differences is provided in 
the section titled ``Critical Habitat Designation,'' below.
    (7) Comment: Several commentors were either for or against the 
decision to include National Park Service (NPS) and State lands as 
critical habitat.
    Our Response: We are designating critical habitat on NPS and State 
lands because these areas are within the geographical area occupied at 
the time of listing that contains the features essential to the 
conservation of the sparrow and, which may require special management 
considerations or protections. We excluded in this final decision two 
proposed units within NPS lands (Everglades National Park (ENP) and Big 
Cypress National Preserve (BCNP)), but other units within ENP remain in 
the final designation.
    (8) Comment: The conclusion that the designation will have no 
impact on Tribal lands, since none are included as critical habitat, 
can be questioned, given the inter-connectedness of land units with the 
Greater Everglades Ecosystem.
    Our Response: In the final rule, we considered potential direct and 
indirect impacts to Tribal lands and resources that might result from 
designation of critical habitat when weighing the benefits of exclusion 
and inclusion in the ``Application of Section 4(b)(2) of

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the Act'' section below. In addition, potential impacts to Tribal 
resources were described and considered in the economic analysis 
associated with the critical habitat designation.
    (9) Comment: Designation of Units 1 and 2 as critical habitat would 
sanction artificial drying of areas in ENP and flooding of other areas 
of the Everglades in perpetuity resulting in destruction of the largest 
expanse of sawgrass Everglades in existence in direct contravention to 
the Comprehensive Everglades Restoration Plan (CERP).
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Units 
1 and 2 from this final designation outweigh the benefits of inclusion, 
see ``Application of section (4)(b)(2) of the Act'' below for further 
explanation.
    (10) Comment: The hydrological management PCE (4) is based on a 
hypothesis that has not been shown to be true.
    Our Response: The specific PCEs identified for the Cape Sable 
seaside sparrow, including PCE4, are derived from the biological needs 
of the sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule (71 FR 63980). The PCEs are 
based on the best scientific data available and their scientific 
foundation is detailed in this rule and the referenced proposed rule. 
It should be noted that PCE 4 describes the hydrologic conditions that 
are required to support and maintain the vegetation composition that 
sparrows require, as well as those conditions that allow for successful 
nesting. PCE 4 is used as a basis for the evaluation during 
consultation under section 7 of the Act to determine whether a proposed 
action may result in destruction or adverse modification of designated 
critical habitat. It is not intended to be a specific objective.
    (11) Comment: PCE 4 could force the Army Corps of Engineers (USACE) 
to manage water levels in subpopulation A at unnaturally low levels 
forever, to the detriment of other areas in the Everglades ecosystem. 
The conclusion in the proposed rule that ``Water management plans 
continue to have the potential to result in damage to sparrow habitat 
in these areas, and special management of hydrologic conditions is 
necessary'' has no apparent factual or scientific basis, and is reached 
based on faulty and superficial logic, misrepresentation of the facts, 
and ignoring the blindingly obvious.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below). Regarding water 
management plans and their potential to damage to sparrow habitat, the 
Service believes this statement is accurate. The hydrologic regime 
affects sparrows indirectly through its effects on the vegetation 
community as detailed in this rule. While these effects may be a result 
of natural rainfall, such effects have also been the result of water 
management plans.
    (12) Comment: The proposed rule states that ``From 1993 to 1995, 
the sparrow population in subpopulation A declined precipitously, from 
an estimated 2,608 individuals in 1992 to 240 individuals in 1995 
(Pimm, et al. 2002, p. 70).'' This is contrary to the available 
evidence in that the precipitous decline occurred between 1992 and 1993 
when subpopulation A went from 2,608 to 432 individuals. This 
information should be revised to reflect the relative certainty and 
uncertainties that have contributed to the decline, not speculation.
    Our Response: Sparrow surveys do indicate that a large decline 
occurred between the 1992 survey and the 1993 survey. The 1994 survey 
was incomplete in the area of subpopulation A, and only approximately 
25 percent of the area was surveyed. Consequently, the number of 
sparrows counted in 1994 should not be used to characterize population 
changes. In addition, the estimates of sparrow numbers resulting from 
the point counts are recognized as incorporating a significant degree 
of uncertainty (see Pimm et al. 2002, pp. 151-160). As a result of the 
uncertainty in individual estimates, we chose to refer to sparrow 
population changes across several years, which we believe are more 
representative of sparrow population trends.
    (13) Comment: There is no scientific justification presented that 
the decline in subpopulation A resulted from the hydrologic flow 
regime, and, even if there was an abnormal increase in flows, which 
there was not, it is impossible to imagine an 84 percent drop in the 
population in one year because of increased flows alone. The decline is 
much more likely attributable to a sudden event such as a fire or 
hurricane.
    Our Response: We recognize that we will not be able to ever 
conclusively determine the cause for the observed decline of sparrow 
subpopulation A. However, the specific attribution for the observed 
decline has been the subject of several peer-reviewed journal articles 
as well as independent scientific review. In their 2000 review of 
sparrow science, Walters et al. (2000, p. 1104) indicated that ``the 
panel views as reasonable Nott et al.'s (1998) conclusion that the 
concentrated releases of water from the S-12 structures from 1992 to 
1995, above and beyond existing water depth and seasonal rainfall, 
directly led to the deep-water conditions west of Shark River Slough. 
These in turn probably caused habitat in the range of Population A to 
be unsuitable for breeding, and we conclude that this likely played a 
major role in the apparent decline of Population A.'' The panel further 
writes that ``The panel explicitly considered the possibility that 
Hurricane Andrew * * * caused the decline, especially in Population A. 
However, we find Curnutt et al.'s (1998) arguments that Andrew was not 
a primary factor in the decline of Population A to be reasonable. Most 
importantly, Population A continued to decline for years after Andrew, 
whereas Population B received only slightly less extreme wind 
conditions than did Population A, but exhibited no decline.'' The 
Service echoes the uncertainty inherent in their assessment, but 
supports their conclusions. We are not aware of additional information 
presented since 2000 that refutes their conclusions.
    (14) Comment: Comprehensive Everglades Restoration Plan is not 
considered in the proposed rule nor is it disclosed that the PCEs 
require unnatural conditions.
    Our Response: The proposed and final rules include discussions of 
activities involving a Federal action that may destroy or adversely 
modify such habitat, or that may be affected by designation of critical 
habitat. As such we do not discuss specific projects such as CERP. 
However, CERP is addressed in this final rule in our discussion of 
exclusions pursuant to section (4)(b)(2) of the Act, which was not in 
the proposed rule. Designation of critical habitat is a rulemaking 
procedure, and as such, does not consider or accommodate future plans 
as we are required to make our determination on the best information 
available to us at the time of our decision. The Service believes that 
the PCEs will be maintained by natural conditions. The PCEs of Cape 
Sable seaside sparrow critical habitat are derived from the biological 
needs of the sparrows, as described in the Background and Primary 
Constituent Elements sections of our proposed rule (71 FR 63980). The 
PCEs are based on the best scientific data available and their 
scientific

[[Page 62739]]

foundation is detailed in this rule and the referenced proposed rule.
    (15) Comment: If the proposed rule is finalized as proposed, it 
will make manmade structures and associated unnatural management of 
water essential in perpetuity. It is impossible for any person or 
agency to achieve PCE 4 short of totally isolating the area with a wall 
and constructing an engineered plumbing system; man-made controls will, 
in all probability, have to be increased given PCE 4 as proposed.
    Our Response: The critical habitat designation does not require 
implementation of specific management measures, and favorable 
conditions may be achieved through a variety of means. We have modified 
PCE 4 to incorporate a broader array of environmental conditions that 
may occur under natural conditions. We do not intend or expect that PCE 
4 will require intensive management of hydrology. This PCE is based on 
the best available science, and was derived from water levels that have 
been recorded within sparrow habitats throughout their range over the 
past 50 years. We do not think these conditions have resulted 
exclusively from isolating these areas.
    (16) Comment: Over 68 percent of the tree island area in the 
Everglades was destroyed by 1995 primarily due to high water; this 
destruction will continue by designating critical habitat within 
subpopulation A based on the prescription of PCE 4.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (17) Comment: Designating critical habitat within subpopulation A 
is not scientifically justified, and with precise, artificial water 
management mandates, is inconsistent with the principle of multi-
species recovery and ecosystem restoration.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (18) Comment: The proposed rule, with prescribed unnatural 
hydrological management mandates, will adversely impact the Everglades, 
the sparrow, and other endangered species by preventing the restoration 
of natural flows and levels and the full implementation of CERP.
    Our Response: We recognize some habitats currently occupied by 
sparrows, particularly in the vicinity of sparrow subpopulation A, may 
have been wetter historically than they are presently, and conditions 
may become wetter in some portions of this area under restoration. This 
was a consideration in our decision to exclude these areas from the 
designation. The critical habitat designation does not prescribe 
unnatural hydrological management mandates. It identifies a single 
hydrologic characteristic that is consistent with the occurrence of 
sparrows in the Everglades wetlands and is based on the best available 
information. This condition will be used to evaluate potential effects 
of Federal actions on designated critical habitat.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the sparrow are addressed below.
    (19) Comment: Units 1 and 2 should not be designated as critical 
habitat.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding units 
1 and 2 (subpopulation A) from this final designation outweigh the 
benefits of inclusion, see ``Application of section (4)(b)(2) of the 
Act'' below for further explanation.
    (20) Comment: The proposed designation will detrimentally affect 
the abilities of the South Florida Water Management District to 
effectively operate the Central & Southern Florida system; will prevent 
the State from achieving the Minimum Flow and Level for Shark River 
Slough; and fails to consider SFWMD's responsibilities for flood 
protection, agriculture, and the urban environment.
    Our Response: The Service's exclusion of critical habitat in the 
area of subpopulation A is expected to reduce potential impacts to 
water management options, including Everglades restoration. One of the 
purposes of designating critical habitat is to evaluate the potential 
impact of proposed Federal actions on habitats that support sparrows. 
Individual proposals will be evaluated to determine whether they will 
result in destruction or adverse modification of critical habitat, and 
such proposals will require modification to avoid impacting areas that 
contain the features that are essential for the conservation of the 
sparrow.
    (21) Comment: The designation will directly impact the SFWMD's 
ability to operate the features constructed by the State's Acceler8 
program and fails to evaluate the impacts on the Foundation Projects, 
CERP, and Acceler8. The Service's narrow focus on the sparrow 
contradicts CERP and restricts water flow to Everglades National Park.
    Our Response: The exclusion of critical habitat from the area of 
subpopulation A is expected to reduce or eliminate potential conflicts 
between hydrologic restoration efforts, including CERP, and the 
designated critical habitat. We do not believe that any CERP 
components, as currently planned, will be incompatible with the 
designation. However, there are components of CERP that have not been 
planned sufficiently to date to allow evaluation and determination of 
whether they will be completely compatible with the designated critical 
habitat, and we expect CERP project designs to continue to change in 
the future. In the Adverse Modification Standard section of this final 
rule we discuss activities that, when carried out, funded, or 
authorized by a Federal agency, may affect critical habitat and, 
therefore, result in consultation for the sparrow. However, this does 
not mean that those activities cannot go forward as planned or proceed 
with some project modifications.
    (22) Comment: An Avian Ecology Workshop was held in August 2007, 
the initial advice and recommendations from the avian ecology experts 
who participated in the workshop will be available in December 2007. 
Given the imminent release of this information, the Service is failing 
to consider the best scientific data available.
    Our Response: On June 14, 2007, the Service filed a motion with the 
U.S. District Court for the District of Columbia to extend the deadline 
to complete critical habitat until December 15, 2008. The motion was 
based in part on waiting for the results of the Avian Ecology Workshop. 
On July 18, 2007, our request for an extension was denied by the Court. 
As a result, the Service must complete the final critical habitat rule 
by October 24, 2007, using the best scientific information available.
    The Service participated in the avian ecology workshop, and 
incorporated and considered scientific and technical information into 
the final rule that was presented at the workshop and provided in 
subsequent technical reports from scientists who gave presentations at 
the

[[Page 62740]]

workshop. This information included recent results on sparrow 
population status and habitat, such as that cited in the final rule as 
Sah et al. 2007, and Pimm et al. 2007.
    (23) Comment: Are roadway rights-of-ways part of designated 
critical habitat? Clarify if an excepted area should be excluded based 
solely on containing one of the PCEs. The units should acknowledge and 
accommodate the existing roads and canals.
    Our Response: In developing our final designation, we attempted to 
avoid including developed areas such as buildings, paved areas, and 
other structures that lack PCEs for the sparrow on the boundaries of 
the designation. However, the scale of the maps prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed areas. As is our normal 
practice, any such structures and the land under them inadvertently 
left inside critical habitat boundaries shown on the maps of this rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Federal actions within such areas would not trigger 
consultation under section 7 of the Act, unless they affect the species 
or PCEs in adjacent critical habitat. The areas outside of this 
designation do not include buffers around such features, and impacts to 
habitat immediately adjacent to roads, buildings, canals, and similar 
features must be considered during consultation if federally funded 
maintenance and development actions affect designated areas.
    (24) Comment: Critical habitat designation must include other 
Federal and State listed species. The current direction of the Service 
to protect a single species to the detriment of other listed and non-
listed species is of concern.
    Our Response: Under the Act and its implementing regulations, there 
are no mechanisms associated with the proposed designation of critical 
habitat that consider addressing or accommodating other species besides 
the species for which critical habitat is designated. In accordance 
with section 3(5)(A) of the Act and regulations at 50 CFR 424.12, in 
determining which areas to designate as critical habitat, we consider 
the specific occupied areas that contain PCEs, and specific unoccupied 
areas that are essential for the conservation of the species for which 
we are designating critical habitat. However, we are able to consider 
most other species as well as other environmental concerns in our 
analysis of exclusions from critical habitat pursuant to section 
4(b)(2). In fact, our decision to exclude proposed Units 1 and 2 in the 
final rule includes consideration of such concerns. Other listed or 
sensitive species may also be afforded some conservation and 
protection, if they occur within the areas designated as critical 
habitat or share habitat components of the Cape Sable seaside sparrow.
    (25) Comment: The Service should examine the hydrologic data 
collected in Units 1, 2, and 5 over the last 10 years to determine the 
feasibility of attaining PCE 4 in these particular areas.
    Our Response: We have examined hydrologic records for the period of 
record for data sets across all areas occupied by sparrows. We have 
excluded proposed critical habitat Units 1 and 2, which correspond with 
sparrow subpopulation A, from the final designation (see ``Application 
of Section (4)(b)(2) of the Act'' below). Further, we have clarified 
PCE 4 to provide for a degree of environmental variability observed in 
these data sets. We have determined that attaining this modified PCE 4 
is feasible in the other units.
    (26) Comment: We should clarify how PCE 4 would be applied and 
interpreted in areas that are expansive and have ground elevations that 
vary by several feet.
    Our Response: There are numerous hydrological monitoring stations 
across the Everglades, including some that are in or adjacent to areas 
designated as critical habitat. These monitoring stations provide 
detailed information about the hydrological conditions in the areas 
near the gauges over the past decades. Obtaining information about the 
water levels and/or ground elevations at specific locations within 
critical habitat will allow estimation of the hydrologic conditions 
that have occurred over time by relating the conditions at the specific 
site to nearby hydrologic gauges. In addition, existing hydrologic 
models provide projections of water depths across the landscape. While 
these depths are understood to be generalized across relatively large 
spatial scales, they provide estimates of changes in water depths and 
the duration of specific water levels. These models can be used to 
evaluate whether proposed projects that are expected to alter 
hydrologic conditions may affect the occurrence of hydrological 
conditions described in PCE 4. In evaluating proposed projects that may 
affect hydrological conditions within critical habitat, the best 
available information, such as hydrological models or measured water 
depths and ground elevations, in combination with data from water 
monitoring stations, will be used to make a determination of whether 
the proposed project may result in hydrologic conditions consistent 
with the PCE. The specific information evaluated to make this 
assessment may vary depending on the location of the anticipated 
effects relative to nearby hydrologic monitoring sites, the 
availability of hydrologic modeling, and other factors.
    (27) Comment: The addition of a PCE describing an appropriate fire 
regime, perhaps based on soil depth characteristic, would strengthen 
the designation.
    Our Response: We agree, and considered including a PCE related to 
fire. However, there is currently insufficient scientific information 
available to identify the appropriate fire frequency and seasonality 
necessary to maintain the characteristics of sparrow habitat that are 
essential to the conservation of the sparrow. We are supporting ongoing 
research to assist in addressing this question, but information is 
currently lacking.

Public Comments

    (28) Comment: Units 1 and 2 should not be designated as critical 
habitat.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (29) Comment: Units 3 through 7 should be designated as critical 
habitat.
    Our Response: We agree and have included these areas in the final 
designation. However, since proposed Units 1 and 2 have been excluded 
from the final designation, we have renumbered the units so that 
proposed Units 3 through 7 are now identified as Units 1 through 5 in 
this final designation.
    (30) Comment: It must be made clear if there are any portions of 
CERP that cannot go forward. The Service's narrow focus on the sparrow 
contradicts CERP and restricts water flow to ENP.
    Our Response: The exclusion of critical habitat from the area of 
subpopulation A is expected to reduce or eliminate potential conflicts 
between hydrologic restoration efforts, including CERP, and the 
designated critical habitat. We do not believe that any CERP 
components, as currently planned, will be incompatible with the 
designation. However, there are components of CERP that have not been 
planned sufficiently to date to allow evaluation and determination of 
whether they will be completely

[[Page 62741]]

compatible with the designated critical habitat, and we expect CERP 
project designs to continue to change in the future. In this final rule 
under the Adverse Modification Standard section we discuss activities 
that, when carried out, funded, or authorized by a Federal agency, may 
affect critical habitat and therefore result in consultation for the 
sparrow. However, this does not mean that those activities cannot go 
forward as planned or proceed with some project modifications.
    (31) Comment: Consideration of the cumulative and long-term effects 
of PCE 4 for Unit 1 on other avian species of concern has not been 
presented.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Unit 
1 from this final designation outweigh the benefits of inclusion, see 
``Application of section (4)(b)(2) of the Act'' below for further 
explanation.
    (32) Comment: The PCEs need further clarification by unit and the 
methods by which the effects from rainfall and surface flows from 
surrounding natural areas were distinguished from C&SF projects 
operations needs further clarification.
    Our Response: The PCEs are derived from the biological needs of the 
sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule (71 FR 63980) and this final 
rule. The PCEs are based on the best scientific data available and 
their scientific foundation is detailed in this rule and the referenced 
proposed rule. Further, critical habitat units are delineated based on 
the presence of one or more of the PCEs. They were not developed in 
reference to past, current, or future operations of the C&SF project. 
The effects of future projects will be evaluated using the best 
available information to predict whether they will occur. The specific 
information available to make this determination may vary among 
projects.
    (33) Comment: There is no reference as to how and where water 
levels exceeding 7.9 inches (20 cm) (i.e., PCE 4) would be measured for 
each proposed critical habitat unit.
    Our Response: Measurements of water levels that relate to this PCE 
can be made in any location to determine whether that PCE is present at 
a site. In the absence of site-specific information, the best available 
information should be used to determine whether the PCE is present. In 
evaluating future projects, PCE 4, as well as the other PCEs, will be 
evaluated using the best available information to determine which ones 
are present and how they will be affected by the proposed project. The 
specific information available to make this determination may vary 
among projects, and the locations and extent of measurement will need 
to be determined based on the specific considerations of individual 
projects. The PCEs identified are those that are important to sparrows 
in general, and are not relevant to individual or specific units. The 
PCEs are derived from the biological needs of the sparrows, as 
described in the Background and Primary Constituent Elements sections 
of our proposed rule (71 FR 63980). The PCEs are based on the best 
scientific data available and their scientific foundation is detailed 
in this rule and the referenced proposed rule.
    (34) Comment: One commentor suggested that we lengthen the duration 
for PCE 4 in the breeding season and include hydrologic triggers for 
the non-breeding season.
    Our Response: We considered a broad variety of hydrologic 
characteristics in developing PCE 4, and we revised this PCE in the 
final rule (see the Primary Constituent Elements section below). The 
PCE that we identified is based on the best available science and 
detailed inspection of hydrological and meteorological data. 
Lengthening the period of evaluation may emphasize hydrologic 
characteristics that would provide better nesting habitat for sparrows, 
but they would not be consistent with natural hydrological and 
meteorological patterns and conditions. Hydrologic triggers during the 
non-breeding season may also be desirable, but we do not currently have 
detailed data on hydrological conditions and their specific effects on 
sparrow habitat during the non-breeding season. Consequently, we do not 
have sufficient information to define such a PCE and establish that it 
represents a feature that is essential to the conservation of the 
sparrow.
    (35) Comment: Options such as mechanical vegetation control, 
construction of levees and pumps to protect habitat, and restoration of 
formerly occupied habitat have not been included or considered in the 
analyses.
    Our Response: Such actions, while they may be important to managing 
and restoring sparrow habitat, are not addressed in the rule because 
critical habitat designation does not prescribe specific actions, and 
only establishes a baseline condition to allow evaluation of potential 
impacts resulting from future Federal actions. Other mechanisms, such 
as recovery plans and section 7 of the Act, provide for consideration 
of such actions.
    (36) Comment: The proposed rule is not based on the best scientific 
data available.
    Our Response: The Service's Policy on Information Standards Under 
the Endangered Species Act, published in the Federal Register on July 
1, 1994 (59 FR 34271), and Section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658) and the associated Information Quality Guidelines issued by 
the Service, provide criteria, establish procedures, and provide 
guidance to ensure that decisions made by the Service represent the 
best scientific data available. Section 4 of the Act requires that we 
designate critical habitat on the basis of the best scientific data 
available. For this rule, we reviewed all available published and 
unpublished literature about the ecology of the sparrow, including the 
1999 petition, the revised recovery plan (Service 1999a), and the 
previous recovery plan (Service 1983) (See ``Criteria Used to Identify 
Critical Habitat'' section). We evaluated management plans that address 
specific management needs of sparrows and their habitats and past 
section 7 consultations that addressed the needs of the sparrow. We 
reviewed reports received from section 7 consultations and from 
researchers who hold section 10(a)(1)(A) research permits. We reviewed 
past records of sparrow occurrence, distribution, and habitat use over 
time that were compiled by FWC personnel, NPS personnel, and 
independent researchers. We obtained and analyzed spatial information 
on the location of sparrow occurrences recorded on surveys from 1981 to 
present and spatial data that reflect vegetation type, fire history, 
and hydrologic conditions within these areas. We reviewed information 
resulting from hydrologic modeling of several water management regimes 
implemented in the region. We evaluated the conclusions and 
recommendations that resulted from an independent peer review of the 
science related to sparrows and their management conducted by the 
American Ornithologists' Union in 1999 (Walters et al. 2000), and the 
recommendations and conclusions of the 2003 South Florida Ecosystem 
Restoration Multi-species Avian Workshop (SEI 2003). We have also 
reviewed available information on the habitat requirements of this 
species. In determining PCEs, we reviewed all available published and 
unpublished literature on the ecology, habitat needs, and factors 
limiting the sparrow's

[[Page 62742]]

occurrence and distribution, including information in published, peer-
reviewed journal articles; unpublished reports and theses; and 
preliminary results from ongoing research. The original critical 
habitat designation (August 11, 1977, 42 FR 40685; corrected September 
22, 1977, 42 FR 47840) was evaluated thoroughly during our analysis. As 
such, we believe that this final designation is based on the best 
available scientific information available.
    (37) Comment: The Service did not conduct the National 
Environmental Policy Act analysis necessary to determine the 
environmental impacts of this major Federal action.
    Our Response: It is our position that, outside the jurisdiction of 
the U.S. Court of Appeals for the Tenth Circuit, we do not need to 
prepare environmental analyses pursuant to NEPA in connection with 
designating critical habitat pursuant to the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position has been upheld by the 
U.S. Court of Appeals for the Ninth Circuit (see, Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 516 U.S. 1042 
(1996)).
    (38) Comment: The Service failed to abide by Secretarial Order 
3206, Executive Order 13175 and Departmental Manual 512, Chapter 2 in 
completing its Trust duty to conduct meaningful, pre-decisional 
consultation with the Miccosukee Tribe of Indians on this action.
    Our Response: In accordance with the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and 
the Department of Interior's manual at 512 DM 2, we readily acknowledge 
our responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to tribes. Accordingly, we provided verbal 
notification to the Tribe's representative in advance of publication of 
the proposed rule on October 26, 2006. Shortly after publication, the 
Service followed up with a letter dated November 7, 2006, requesting 
comments from the Tribe and offering our availability to answer 
questions and meet with the Tribe. The Service requested and received 
recommendations for peer reviewers from the Tribe and a Tribal 
representative was asked to peer review the proposed rule. Subsequent 
to the publication of the proposed rule we responded to numerous email 
and telephone requests from the Tribe's representative. In advance of 
the publication of the notice of availability in August 2007, we 
provided verbal, email, and written notification to the Tribe, and 
provided advanced verbal notification as to the date, time, and 
location of the public hearing. In our advanced written notification to 
the Tribal Chairman, we requested comments from the Tribe and offered 
our availability to answer questions and meet. Since October 2006, we 
have corresponded with the Tribe or its representative regarding this 
issue on more than 30 occasions.
    (39) Comment: The Service's contention that it anticipates no 
impacts to Tribal lands is disingenuous and inaccurate.
    Our Response: In the final rule, we considered potential direct and 
indirect impacts to Tribal lands and resources that might result from 
designation of critical habitat when weighing the benefits of exclusion 
and inclusion in the ``Application of Section 4(b)(2) of the Act'' 
section below. In addition, potential impacts to Tribal resources were 
described and considered in the economic analysis associated with the 
critical habitat designation
    (40) Comment: The Service is not legally obligated to designate the 
western area of ENP as critical habitat because the sparrow is 
protected under the Act and ENP is a protected area. Moreover, the 
Service has no obligation to adopt a rule that contains a hydrologic 
management objective.
    Our Response: While the existing management plans for NPS and State 
lands include provisions and actions intended to maintain the habitat 
type upon which sparrows depend, the existing plans do not provide 
sufficient assurances that hydrologic management in these areas will 
maintain sparrow habitat for the foreseeable future. Neither the NPS 
nor the Florida Fish and Wildlife Conservation Commission directly 
manage the hydrologic conditions on their properties. Inflows into the 
properties, as well as adjacent hydrologic conditions that affect the 
lands through groundwater seepage, are regulated by other Federal and 
State agencies. As such, we are designating critical habitat on NPS and 
State lands. However, upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below). The specific 
PCEs, including PCE 4 (hydrologic condition), identified for the Cape 
Sable seaside sparrow are derived from the biological needs of the 
sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule published on October 31, 2006 
(71 FR 63980). The PCEs are based on the best scientific data available 
and their scientific foundation is detailed in this rule and the 
referenced proposed rule.
    (41) Comment: The peer review process was flawed in that the 
scientists were only given a short time to review the proposed rule and 
were not provided with all the ``science'' documents on which the 
Service claims it was based.
    Our Response: Eight of the peer reviewers were sent a letter on 
November 2, 2006, requesting that they complete their review and 
provide their comments by January 2, 2007. One peer reviewer was sent a 
letter on November 14, 2006, requesting their review and comments by 
January 2, 2007. In other words, most reviewers were provided 
approximately 60 days to review the proposal and the information it was 
based on and provide their comments. This is approximately the same 
period of time in which the public had to review the proposal and the 
time period required by our ESA regulations for public comment. 
Moreover, the letter sent to all nine reviewers indicated that the 
literature used to prepare the proposed rule was available upon 
request.
    (42) Comment: Management of water levels is not within the 
Service's jurisdiction and, thus, the hydrologic management objective 
is in excess of statutory authority.
    Our Response: The final rule does not prescribe specific water 
management regimes or water levels, and only describes a hydrologic 
characteristic that allows for the conservation of the species. 
Potential impacts of future Federal actions on the hydrologic 
conditions within designated critical habitat will be evaluated at the 
time of the action in accordance with section 7 of the Act.

[[Page 62743]]

    (43) Comment: The proposed rule violates the 5th Amendment of the 
U.S. Constitution (i.e., the taking of private property).
    Our Response: The mere promulgation of a regulation, like the 
enactment of a statute, does not take private property unless the 
regulation on its face denies the property owners all economically 
beneficial or productive use to their land (Agins v. City of Tiburon, 
447 U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Minin and 
Reclamation Ass'n, 452 U.S. 264, 195 (1981); Lucas v. South Carolina 
Coastal Council, 505 U.S. 1003, 1014 (1992)). The Act does not restrict 
all uses of critical habitat, but only imposes limits under section 
7(a)(2) on Federal agency actions that may result in destruction or 
adverse modification of designated critical habitat. This limitation 
does not apply to private actions that do not need Federal approvals, 
permits, or funding. Furthermore, if a biological opinion concludes 
that a proposed action is likely to result in destruction or adverse 
modification of critical habitat, we are required to suggest reasonable 
and prudent alternatives, if we are able to develop such alternatives. 
In accordance with Executive Order 12630, we have concluded that this 
designation does not have significant takings implications (see 
``Required Determinations'' section below).
    (44) Comment: The Service needs to state whether the rule will or 
will not impact access or human use in Units 1 and 2 other than during 
the natural sparrow nesting season.
    Our Response: Units 1 and 2 have been excluded from this 
designation and, therefore, critical habitat is no longer a 
consideration. However, the areas that were considered in the proposed 
rule for designation as Units 1 and 2 (subpopulation A) contain 
sparrows and will continue to be subject to conservation actions 
implemented under section 7(a)(1) of the Act and to the regulatory 
protections afforded by the section 7(a)(2) jeopardy standard, as 
determined on the basis of the best available information at the time 
of the proposed action.
    (45) Comment: Under the proposed critical habitat designation how 
will the sparrow have the necessary habitat to substantially increase 
the population to 6,600 birds? There should be a discussion of total 
available habitat contrasted with critical habitat as well as how 
restoration of habitat can fit in with critical habitat strategies to 
attain the recovery goals.
    Our Response: Recovery of sparrows is expected to occur both within 
and outside of designated critical habitat, and the designation is 
consequently not intended to encompass all areas where sparrows may 
occur. There are areas outside of designated sparrow critical habitat 
that may currently be able to support sparrows, and additional areas 
where habitat may be restored through management or Everglades 
restoration efforts. Habitat is often dynamic, and species may move 
from one area to another over time. Consequently, it is difficult to 
accurately estimate the amount of suitable habitat that is available at 
a particular point in 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. We expect that some additional areas may become suitable for 
sparrows as Everglades restoration progresses. However, we have made 
the designations in this final rule consistent with the best available 
scientific information and are currently unable to predict the specific 
location or extent of such other areas. For these reasons, critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery.
    (46) Comment: In the discussion of the individual units, specific 
threats should be identified such as global warming or climate change, 
off-road vehicle use in Big Cypress National Preserve, exotic predators 
such as the Burmese python.
    Our Response: Global warming and climate change may threaten all 
units, although the precise impacts over time are not fully understood. 
Proposed Units 1 and 2, which were the only units in BCNP, have been 
excluded for the reasons described later in this rule. Exotic 
predators, similar to climate change, is a general threat that may 
affect all units, and the degree to which this potential threat may 
affect sparrows remains unknown. In our descriptions of specific units, 
we only addressed the main factors affecting sparrow habitat within the 
unit that may require special management consideration or protection.
    (47) Comment: How will critical habitat be effectively monitored 
and enforced?
    Our Response: Under the Act, critical habitat receives protection 
under section 7 of the Act through the prohibition against destruction 
or adverse modification of critical habitat with regard to actions 
carried out, funded, or authorized by a Federal agency. Section 7 
requires consultation on Federal actions that may affect critical 
habitat (see ``Section 7 Consultation'' section below). There are no 
special provisions to actively monitor critical habitat, and any 
monitoring will be conducted as a result of the implementation of Terms 
and Conditions associated with section 7 consultations that specify 
monitoring, and in conjunction with other research and monitoring 
activities.
    (48) Comment: The habitat on Rattlesnake Ridge (subpopulations A) 
is no longer suitable for sparrows.
    Our Response: Upon further evaluation of Units 1 and 2 
(subpopulation A), we have found that the benefits of excluding this 
from the final designation outweigh the benefits of their inclusion 
(see ``Application of Section 4(b)(2) of the Act'' below).
    (49) Comment: The sparrow is not native to the areas where it is 
currently nesting.
    Our Response: The best available information suggests that sparrows 
have occurred for a long time in areas where they currently occur. 
While the sparrow was originally only known to occur on Cape Sable in a 
different vegetation type than where it is found today, we believe that 
sparrows historically occurred in the marl prairie habitat where they 
occur today, and their documentation only on Cape Sable resulted from 
limited knowledge of their distribution, and not movement from Cape 
Sable into the marl prairies. The first prong of the definition of 
critical habitat under the ESA focuses on the areas occupied by the 
species at the time of listing.
    (50) Comment: The Miccosukee Tribe asserted that the Service 
violated the Administrative Procedure Act (APA) by not holding a public 
hearing on the proposed critical habitat during the first comment 
period.
    Our Response: Pursuant to section 4(b)(5)(E) of the Act, we are to 
hold one public hearing on a proposed regulation if a request for a 
hearing is filed within 45 days of the publication of our proposal. 
Further, we are required to hold a public hearing within an open 
comment period, provide notice to the public of a public hearing at 
least 15 days prior to hearing itself, and hold the comment period open 
for at least 10 days following the hearing. For this rulemaking, the 
proposed rule was published on October 31, 2006, and the public comment 
period closed on January 2, 2007. We received the request for a public 
hearing from the Tribe by facsimile on November 30, 2006, within the 45 
day time period required by the Act. It is commonly our practice, upon 
receiving a request for a public hearing on a proposed critical 
habitat, to hold at least one hearing in the general area

[[Page 62744]]

effected by the proposal either directly following the publication of a 
proposal or following the release of our draft economic analysis of the 
proposal. In the case of the Cape Sable seaside sparrow proposed 
critical habitat, there was insufficient time to coordinate, provide 
notice to the public and hold a public hearing on the proposal during 
the initial comment period. Consequently, we held one public hearing in 
Homestead, Florida, on August 29, 2007, which was during the open 
public comment period following the release of the draft economic 
analysis of the proposal. As such, we have abided by the provisions of 
the Act and our implementing regulations.

Economic Analysis--Policy Issues

    (51) Comment: Several commenters requested that the economic 
analysis consider those impacts attributable co-extensively to other 
causes and not just those that are due solely to the designation of 
critical habitat.
    Our Response: The main body of the Final Economic Analysis (FEA) 
estimates fully co-extensive impacts associated with the proposed 
critical habitat designation. Appendix B of the FEA estimates the 
potential incremental impacts of critical habitat designation for the 
sparrow. It does so by attempting to isolate those direct and indirect 
impacts that are expected to be triggered specifically by the critical 
habitat designation. The incremental conservation efforts and 
associated impacts included in Appendix B would not be expected to 
occur absent the designation of critical habitat for the sparrow. Total 
present value potential incremental impacts are estimated to be $64,000 
(discounted at three percent). All other impacts quantified in the FEA 
are considered baseline impacts and are not expected to be affected by 
the critical habitat designation.
    (52) Comment: One commenter states the Draft Economic Analysis 
should be peer reviewed.
    Our Response: For purposes of completing this economic analysis, 
the Service did consider whether external peer review, beyond that 
conducted by internal Service economists, was necessary. In this case, 
the reasonably foreseeable impacts were primarily related to direct 
costs of conservation efforts. Thus, the circumstances of the analysis 
did not give rise to a need for external peer review.
    (53) Comment: Several commenters state that potential benefits of 
critical habitat designation can and should be quantified and that by 
quantifying the costs and not the benefit of the proposed rule, public 
attention is focused on the costs of critical habitat designation while 
making benefits invisible.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, impact on national 
security, and any other relevant impact, of specifying any particular 
area as critical habitat. The Service's approach for estimating 
economic impacts includes both economic efficiency and distributional 
effects. The measurement of economic efficiency is based on the concept 
of opportunity costs, which reflect the value of goods and services 
foregone in order to comply with the effects of the designation (e.g., 
lost economic opportunity associated with restrictions on land use). 
Economic benefits can result when increased regulation on land has a 
beneficial effect due to the elimination of negative externalities 
caused by the regulation. For example, if designation of critical 
habitat results protects a viewshed thus increasing the value of the 
neighboring properties that benefit from the viewshed, the designation 
would eliminate a negative externality and have a measurable economic 
benefit. Our analysis consider such economic benefits, and if both 
economic costs and benefits can be quantified, we can measure the net 
economic impact. However, for the CSSS proposed critical habitat, we 
were unable to find any data that would allow quantification of 
economic benefits, nor was such information submitted during the public 
comment period.
    Most of the benefit categories submitted by the public during 
through comments reflect broader social values, which are not the same 
as economic impacts. While the Secretary must consider economic and 
other relevant impacts as part of the final decision-making process 
under section 4(b)(2) of the Act, the Act also explicitly states that 
it is the government's policy to conserve all threatened and endangered 
species and the ecosystems upon which they depend. Thus, we believe 
that explicit consideration of broader social values for the sparrow 
and its habitat, beyond the more traditionally defined economic 
impacts, is not necessary as Congress has already clarified the social 
importance.
    We note, as a practical matter, it is difficult to develop credible 
estimates of such values, as they are not readily observed through 
typical market transactions and can only be inferred through advanced, 
tailor-made studies that are time consuming and expensive to conduct. 
We currently lack both the budget and time needed to conduct such 
research before meeting our court-ordered final rule deadline. In 
summary, we believe that society places significant value on conserving 
any and all threatened and endangered species and the habitats upon 
which they depend and thus needs only to consider whether the economic 
impacts (both positive and negative) are significant enough to merit 
exclusion of any particular area without causing the species to go 
extinct.
    (54) Comment: One commenter states that the designation of critical 
habitat will prevent implementation of the Combined Structural and 
Operational Plan (CSOP) and other Everglades restoration projects and 
the economic analysis should quantify these impacts.
    Our Response: The Service has indicated that it will evaluate 
individual CERP proposals to determine whether they will result in 
destruction or adverse modification of critical habitat, and any 
proposals that would require modification to avoid that result. The 
Service does not expect most proposed water management actions to reach 
the level of impact that may result in destruction or adverse 
modification of designated critical habitat. Therefore, the Service 
does not believe that any CERP components, as currently planned, will 
be incompatible with the designation. There are components of CERP that 
have not reached a point in the planning process sufficient to date to 
allow evaluation and determination of whether or not they will be 
completely compatible with the designated critical habitat, and CERP 
project designs are also expected to continue to change in the future. 
This does not mean that those activities cannot go forward as planned 
or proceed with some project modifications. Section 3 of the FEA 
discusses how beginning with the full implementation of CSOP and CERP 
(assumed for purposes of the FEA to begin around 2011), it is uncertain 
whether incremental conservation measures implemented for sparrow 
conservation will represent a significant constraint on overall water 
management activities. For example, under certain circumstances, 
overall Everglades restoration and sparrow conservation efforts may 
become more harmonized, thus diminishing related economic impacts. 
Given the current uncertainty concerning overall CERP implementation, 
however, no long-term impacts from sparrow conservation, and 
specifically critical habitat designation, are quantified, but are 
rather discussed qualitatively.

[[Page 62745]]

    (55) Comment: One commenter states that the Service should be 
cautious about formally quantifying the economic costs and benefits of 
the proposed rule rather than using qualitative approaches in assessing 
economic costs.
    Our Response: As discussed in Section 1 of the FEA, one purpose of 
the economic analysis is to estimate the economic impact of reasonably 
foreseeable actions taken to protect the sparrow. The economic analysis 
attempts to quantify the economic effects associated with the proposed 
designation of critical habitat. It does so by taking into account the 
cost of conservation-related measures that are likely to be associated 
with future economic activities that may adversely affect the habitat 
within the proposed critical habitat boundaries. This information is 
intended to assist the Secretary in determining whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. In addition, this 
information allows the Service to address the requirements of Executive 
Orders 12866 and 13211, and the Regulatory Flexibility Act (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA). The FEA also complies with the interpretation of the U.S. 
Court of Appeals for the 10th Circuit that ``co-extensive'' effects 
should be included in the economic analysis to inform decision-makers 
regarding which areas to designate as critical habitat.
    (56) Comment: One commenter states that the DEA should provide an 
analysis of reasonable alternatives for the proposed critical habitat 
designation such as portions of each area being excluded and 
modifications to the criteria for the primary constituent elements.
    Our Response: As discussed in Section 1, the FEA estimates the 
potential economic impact of designating each proposed critical habitat 
unit. Consideration of impacts at a unit level may result in alternate 
combinations of units of proposed habitat that may or may not 
ultimately be designated. As a result, the impacts of multiple 
combinations of units are available for consideration by the Service. 
When information is available the economic analysis attempts to 
estimate economic impacts at a finer geographic scale. However, 
information is not available to disaggregate potential economic impacts 
to a geographic scale finer than the critical habitat unit for the 
sparrow. The Service's responsibility in developing the critical 
habitat unit boundaries and the definitions of PCEs is to use the best 
available scientific information. There is consequently not a mechanism 
in this process to develop and consider alternative designs. The DEA 
analyzed the proposed critical habitat units that were developed based 
on the application of the best available information. Considering 
alternatives different from those proposed is not appropriate here 
because we have no information and analysis to support such 
alternatives. Additionally, under section 4(b)(2) of the Act, the 
Secretary has the discretion to exclude areas based on economic or 
other considerations, but the Act does not provide similar discretion 
to change the PCEs identified in conjunction with a designation.
    (57) Comment: The Miccosukee Tribe asserted that we violated the 
Administrative Procedure Act (APA) by not making the draft economic 
analysis of the proposed designation available concurrently with the 
proposed rule.
    Our Response: The draft of the economic analysis was made available 
to the public for review and comment on August 17, 2007 (72 FR 46189). 
A final economic analysis was then developed based on the public 
comments and is available from South Florida Ecological Services Office 
(see ADDRESSES). There is no law or regulation which requires 
publication of the draft economic analysis only concurrently with the 
proposed rule.
    (58) Comment: The Miccosukee Tribe asserted that we violated the 
APA by not supplying the Tribe with the documents and data it requested 
under the Freedom of Information Act (FOIA).
    Our Response: We received the FOIA request on November 8, 2005 and 
responded well before the proposed critical habitat rule for the Cape 
Sable seaside sparrow was published on October 31, 2006. FOIA only 
applies to documents in existence at the time of the response, however 
the Tribe and the public in general were given adequate time to review 
and comment on the DEA.

Economic Analysis--Economic Issues

    (59) Comment: One commenter states that the DEA incorrectly assumes 
CSOP will be implemented in 2011.
    Our Response: Based on communications with the U.S. Army Corps of 
Engineers (USACE), 2010 to 2011 is the best available estimate of when 
CSOP will be implemented.
    (60) Comment: One stakeholder commented that the DEA underestimates 
the economic cost of past actions undertaken for the sparrow.
    Our Response: As discussed in Section 2 of both the DEA and the 
FEA, conservation efforts for the sparrow are described since the 
listing of the sparrow as endangered in 1967. No costs are estimated 
for the period of 1967 to 1994 as no major conservation efforts for the 
sparrow occurred apart from general species management efforts. 
Potential impacts are quantified from 1995 until present based on 
available information. The total present value of pre-designation costs 
are estimated to be $51.1 million (discounted at three percent). While 
this represents the best estimate based on available information, it is 
an underestimate of the total costs incurred for sparrow conservation 
efforts since it was listed as endangered.
    (61) Comment: A few commenters state that the DEA unnecessarily 
truncates the period of analysis for future water management actions to 
2011 and costs beyond 2011 should be calculated.
    Our Response: As discussed in Section 3 of both the DEA and the 
FEA, beginning with the full implementation of CSOP and CERP (as 
described above assumed to begin around 2011), it is uncertain whether 
incremental conservation measures implemented for sparrow conservation 
will represent a significant constraint on overall water management 
activities. For example, under certain circumstances, overall 
Everglades restoration and sparrow conservation efforts may become more 
harmonized, thus diminishing related economic impacts. Given the 
current uncertainty concerning overall CERP implementation, however, no 
long-term impacts from sparrow conservation are quantified.
    However, the USACE has determined, if it needs to modify its 
currently planned infrastructure modifications under CERP to maintain 
sparrow favorable hydrological conditions in Unit 1, the post-
designation costs estimated in the DEA related to water management 
changes for sparrow management may be greatly underestimated. The USACE 
has, however, not conducted an analysis of revisions to CERP that may 
be required to maintain the primary constituent elements in Unit 1. 
Therefore, the EA does not quantify the costs associated with potential 
changes to infrastructure modifications planned for CERP, and the 
potential need to re-evaluate CERP projects.
    (62) Comment: One commenter contends the DEA underestimates the 
costs of structures built by the USACE for the Interim Operational Plan 
for the

[[Page 62746]]

Protection of the Cape Sable Seaside Sparrow (IOP).
    Our Response: Section 3 of both the DEA and the FEA estimates $11.9 
million (discounted at three percent) was spent on the construction of 
structures by the USACE since 2000, and no additional monies will be 
spent by the USACE on structures from 2007 to 2011. This cost 
information was provided by the USACE and is considered to be the best 
available.
    (63) Comment: One commenter asserts that the DEA underestimates the 
costs of sparrow conservation efforts by not accounting for tree-island 
losses.
    Our Response: As discussed in Section 3 of both the DEA and the 
FEA, higher water levels in the Water Conservation Areas (WCAs) have 
resulted in degradation and loss of tree-islands. Tree-islands support 
the habitat for several wildlife and plant species in the area, and are 
regarded by the Miccosukee Tribe as important cultural resources 
connecting them to their heritage and tradition. The loss of tree-
islands due to water-management actions has been occurring since at 
least 1945. On average, over the 55 year period studied, 8.4 islands or 
246 acres are lost each year and delayed implementation of the Modified 
Water Deliveries project will prolong the time needed for the 
restoration and recovery process for the tree islands in WCA-3. The 
estimated cost of full restoration of tree-islands range between 
$50,000 to $500,000 per acre.
    While it is clear that tree island loss has occurred in WCA-3 since 
1945, and losses will continue to occur until implementation of the 
Modified Water Deliveries project, the relationship between the IOP 
water management actions and changes in the rate of tree islands loss 
is unknown. Therefore, this FEA does not estimate the acres of tree 
island loss potentially attributable to the IOP nor the potential range 
in costs to restore tree island losses.
    (64) Comment: One commenter asserts that the DEA underestimates the 
costs of sparrow conservation efforts by not accounting for ecological 
impacts to WCA-3A including the cost of restoring habitat in this area.
    Our Response: As discussed in Section 3 of both the DEA and the 
FEA, the potential ecological impacts due to higher water levels in 
WCA-3A impacts may include degradation and loss of tree islands, 
increased risk of establishment of invasive plants, negative impacts on 
snail kite habitat and foraging opportunities, changes in salinity 
levels in estuaries, and changes in Everglades restoration objectives 
due to delay in project implementation. However, the magnitude of 
marginal increases in water levels in WCA-3A attributable to sparrow 
conservation efforts remains controversial and uncertain. In the 
absence of such information, it is not possible to quantify the losses 
in ecological services and/or potential costs of restoration 
attributable specifically to sparrow conservation efforts.
    (65) Comment: One commenter stated the DEA discusses potential 
impacts to the Miccosukee Tribe, recreational users, recreational and 
commercial fishing in the St. Lucie and Caloosahatchee estuaries and 
Florida Bay, and flood protection, agricultural, and urban interests 
but should quantify costs to these entities.
    Our Response: As discussed in Section 3 of both the DEA and the 
FEA, there could be potential impacts on these activities due to 
sparrow conservation efforts. The Miccosukee Tribe claims that water 
management for the sparrow Subpopulation A has irreparably damaged tree 
islands and restricted access to other cultural resources in WCA-3A. 
Routing of excess water from near Subpopulation A (Units 1 and 2) 
through the South Dade Conveyance System (SDCS) has potentially 
resulted in changes in salinity levels in estuaries of South Florida, 
reducing fishing opportunities. Concerns have also been raised about 
the increased likelihood of floods in agricultural and urban areas of 
southern Miami-Dade County due to excess water in L-31N canal resulting 
from the re-routing of water through SDCS. The FEA acknowledges these 
concerns; however, due to lack of sufficient quantitative information 
regarding the marginal impact of sparrow conservation efforts on water 
levels, it is unable to quantify the potential cost of these ecological 
impacts.
    (66) Comment: One commenter wrote the DEA should assess the cost of 
damage to Lake Okeechobee that will result if water levels are 
maintained at excessive stages.
    Our Response: As discussed in Section 3 of both the DEA and the 
FEA, present day nutrient levels in Lake Okeechobee do not meet 
relevant water quality standards. Hence, flow from Lake Okeechobee, 
which would normally flow south under the topographic gradient, is 
artificially restricted from flowing into the Everglades. Instead, 
freshwater flows from Lake Okeechobee are routed into estuaries through 
the St. Lucie and Caloosahatchee rivers (which flow to the east and 
west coasts of Florida, respectively). It is, however, expected that in 
the future nutrient levels will be reduced and water would be allowed 
to flow naturally from Lake Okeechobee to the Everglades. The concern 
is that, in the future, this natural flow of water will be precluded 
due to water management activities for Subpopulation A (Units 1 and 2), 
and that the current practice of routing excess freshwater into 
estuaries will continue to upset the salinity balance within those 
estuaries on the eastern and western coast of South Florida. These 
concerns are predicated on the assumption that current water management 
actions which close S-12 structures and prevent free flow of water 
between WCA-3A and western Shark River Slough will continue in the 
future as well. These conditions may change if the USACE's future plans 
are implemented which would enable more free flowing conditions near 
eastern Shark River Slough. Also, note that the SFWMD is considering 
building reservoirs near Lake Okeechobee to preclude increased 
freshwater flows into estuaries on the east and west coast of South 
Florida. The marginal impact of sparrow conservation efforts on Lake 
Okeechobee are uncertain. This analysis, therefore, did not quantify 
any economic impacts related to water quality in Lake Okeechobee.
    (67) Comment: One commenter states that the DEA does not mention 
the costs of controlling invasive exotic species in tree islands in 
WCA-3A due to the increased stress and mortality of native trees and 
shrubs resulting from higher water levels.
    Our Response: As noted in Section 4 of both the DEA and the FEA, 
the relationship between water management for the sparrow, and the 
increase in water levels in WCA-3A is not clearly understood. Despite 
several commenters' claims, the Service, USACE, and the National Park 
Service have not been able to prove or disprove that sparrow management 
has contributed to the increased water levels in WCA-3A. Therefore, the 
relationship between the increased threat of invasion of exotic plant 
species and sparrow conservation efforts is unknown. Hence, the FEA 
does not attribute any marginal costs that may be incurred for 
protecting against invasive plant species in WCA-3A to sparrow 
conservation.
    (68) Comment: One commenter states that the DEA does not quantify 
the impact of the ISOP and IOP on recreation related activities in 
wildlife management areas (WMA).
    Our Response: To quantify recreational losses associated with the 
ISOP and IOP an estimate of the number of trips that would be lost 
specifically due to sparrow conservation efforts is

[[Page 62747]]

required. As discussed in Section 4 of both the DEA and the FEA, the 
marginal reduction in number of trips due to sparrow conservation 
related efforts is unknown. Therefore, the FEA is unable to quantify 
the impacts of sparrow conservation efforts on recreation in those 
portions of the Everglades WMA that could be potentially affected by 
water management actions for sparrow conservation. Section 4 of the 
FEA, does however include information from a recent economic study 
released by the Florida Fish and Wildlife Conservation Commission (FWC) 
that provides an estimate of the range of visitation related 
expenditures that can be expected to occur in some parts of the 
Everglades WMA. The mean trip expenditure for visits to WMAs in Florida 
could range between $93.21 to $298.86. The consumer surplus associated 
with these trips was estimated to range between $60.98 and $158.61. 
These estimates reflect the magnitude of the value of recreation trips 
in WCA-3A and WCA-3B in the Everglades WMA.
    (69) Comment: One commenter states that the DEA does not adequately 
quantify the costs and the uncertainty associated with future 
collaborative actions between different stakeholders to resolve 
potential conflicts between sparrow conservation efforts and the 
Everglades restoration projects.
    Our Response: As mentioned in Section 3 of both the DEA and the 
FEA, it is expected that future consultations between agencies will be 
required to resolve conflicts between overall Everglades restoration 
objectives and sparrow conservation needs. However, there is little 
understanding of how frequently interagency meetings will be required, 
and how, and if at all, reallocation of agency resources may be 
required to mediate discussions with other agencies. It is therefore 
not possible to quantify the potential costs associated with these 
future changes in federal and state agency operations at this time.
    (70) Comment: Several commenters state that the DEA fails to 
specify the kinds of restriction on use of designated critical habitat 
areas during section 7 consultations.
    Our Response: The FEA describes potential changes in access to some 
parts of the proposed critical habitat areas. There are three areas 
where recreation may be affected due to the sparrow.
    A decrease in recreation may be observed in the Everglades Wildlife 
Management Area due to restrictions imposed to reduce stress during 
high water levels resulting potentially from water management 
activities instituted for sparrow conservation.
    Because Subpopulation F (Unit 7) is located in the Everglades 
Expansion Area, some recreation groups are concerned that sparrow 
conservation efforts will limit recreational opportunities in this 
area. The Everglades National Park states that because hydrological 
conditions currently limit air boating within Unit 7, and because 
airboaters and the Miccosukee Tribe have been granted limited access in 
lieu of the 1989 Expansion Act, any marginal impact on recreation due 
to sparrow conservation is expected to be negligible in the Expansion 
Area. Therefore the FEA concludes that while the number of trips is not 
expected to change much, visitors' experiences maybe affected due to 
additional restrictions arising out of sparrow conservation efforts.
    Sparrow management activities in Zone 4 of the Big Cypress National 
Preserve (BCNP) have led to closure of some areas within Unit 1, and 
limited access to some other areas. Wheeled vehicles are not allowed 
within areas that have been identified as sparrow habitat areas. Since 
off road vehicles may affect the vegetative structure required by 
sparrows for foraging, nesting, and roosting, administrative closures 
can prohibit airboats when and where water levels are at a stage in 
which their use may cause soil displacement. Thus, if the proposed rule 
is finalized, it is believed that the designation of critical habitat 
may require additional limits on access to Unit 1 and Unit 2. However, 
the BCNP has stated that hunting opportunities need not be reduced due 
to presence of the sparrow.

Summary of Changes From Proposed Rule

    We have reconsidered our proposed critical habitat revision for the 
Cape Sable seaside sparrow in view of comments received during the two 
public comment periods and the public hearing, the economic analysis, 
and new information that has become available since we published the 
proposed rule on October 31, 2006. We have adopted the following 
changes from the original proposal in this final rule:
    (1) We have excluded proposed Units 1, 2, and a portion of the 
eastern boundary of 7 from the final designation of critical habitat 
because we believe that the benefits of excluding these specific areas 
from the designation outweigh the benefits of inclusion. As required by 
the Act, we have determined that the exclusion of these areas from the 
final designation of critical habitat will not result in the extinction 
of the Cape Sable seaside sparrow. These exclusions are discussed in 
more detail in the Application of Section (4)(b)(2) of the Act section 
below.
    (2) We refined the boundary of proposed Unit 4, which corresponds 
with sparrow subpopulation C, to correct a mapping error and to more 
precisely align the boundary better with the PCEs actually present 
here. This change in boundary resulted in a reduction in area of 108 ac 
(43 ha) within this unit.
    (3) We modified PCE number 2 (herbaceous vegetation) to correct 
errors and clarify the description of the method of vegetation 
measurements.
    (4) We modified PCE number 4 (hydrologic regime) to incorporate a 
duration of 30 days for the hydrologic condition that was described 
(water levels >7.9 inches (20 centimeters)), instead of a simple 
exceedance of this water depth. This change resulted from several 
comments indicating that the hydrologic criterion would not accommodate 
natural environmental variation, and our additional analysis of 
rainfall and hydrologic data within the Everglades. This additional 
analysis indicated that natural rainfall events occasionally occur that 
may cause this criterion to be exceeded for short periods. The 
frequency of such rainfall events has not been sufficiently predictable 
to ensure that it would not result in an exceedance of this criterion. 
The adopted change would ensure that natural rainfall events would not 
lead us to erroneously conclude that hydrological conditions were 
incompatible with the maintenance of sparrow habitat. The revised PCE 
still addresses high water levels, but focuses on persistent deep water 
that is indicative of broader hydrologic conditions across the 
landscape which would render sparrow habitat unsuitable.
    (5) As a result of the exclusion of proposed Units 1 and 2, the 
names of the remaining 5 units are being changed to reflect sequential 
numbering, from 1 though 5, but also indicate the associated sparrow 
subpopulation. For example, proposed critical habitat Unit 3 will now 
be referred to as Unit 1--subpopulation B.
    (6) Based upon our further evaluation of the survey information 
regarding the designated areas, we have determined that they were 
occupied at the time of listing and, therefore, that they are occupied 
habitat under the Act. See the discussion of each critical habitat unit 
in the Critical Habitat Description section below.

[[Page 62748]]

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, 
means, ``to use and the use of all methods and procedures that are 
necessary to bring any endangered or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary.'' Such methods and procedures include, but are not limited 
to, all activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, and, in 
the extraordinary case where population pressures within a given 
ecosystem cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 of the Act requires 
consultation on Federal actions that are likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow government or public 
access to private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by the 
landowner. Where the landowner seeks or requests federal agency funding 
or authorization that may affect a listed species or critical habitat, 
the consultation requirements of Section 7(a)(2) would apply, but even 
in the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    To be included as occupied critical habitat, it must have features 
that are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (areas on which are found the PCEs, as defined at 50 CFR 
424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. As discussed below, 
such areas may also be excluded from critical habitat under section 
4(b)(2) of the Act. Areas outside of the geographical area occupied by 
the species at the time of listing may only be included in critical 
habitat if the areas are determined to be essential to the conservation 
of the species. Accordingly, when the best available scientific data do 
not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. However, if we could not determine that an area was occupied 
at the time of listing, but the area is currently occupied by the 
species, it will likely be essential to the conservation of the species 
and, therefore, typically included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Act, 
published in the Federal Register on July 1, 1994 (59 FR 34271), and 
Section 515 of the Treasury and General Government Appropriations Act 
for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated 
Information Quality Guidelines issued by the Service, provide criteria, 
establish procedures, and provide guidance to ensure that decisions 
made by the Service represent the best scientific data available. They 
require Service biologists to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources include the 
recovery plan for the species, articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support Cape Sable seaside sparrow subpopulations, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions implemented under section 7(a)(1) of 
the Act, which directs Federal agencies to utilize their authorities in 
furtherance of the purposes of the Act by carrying out programs for the 
conservation of listed species, and to the regulatory protections 
afforded by the section 7(a)(2) jeopardy standard, as determined on the 
basis of the best available information at the time of the action. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat may still result in jeopardy findings 
in some cases. Similarly, critical habitat designations made on the 
basis of the best available information at the time of designation will 
not control the direction and substance of future recovery plans, 
habitat conservation plans (HCP), or other species conservation 
planning efforts if new information available to these planning efforts 
calls for a different outcome. Until a critical habitat designation is 
modified in a future rulemaking proceeding, that designation remains in 
effect.

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 designate as critical 
habitat, we considered those physical and biological features (PCEs) 
that are essential to the conservation of the species, within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to, space for individual and population growth and

[[Page 62749]]

for normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific PCEs identified for the Cape Sable seaside sparrow are 
derived from the biological needs of this species as described in the 
proposed critical habitat designation published in the Federal Register 
on October 31, 2006 (71 FR 63980).
    Pursuant to the Act and its implementing regulations, we are 
required to identify the known physical and biological features (PCEs) 
within the geographical area known to be occupied at the time of 
listing that are essential to the conservation of the sparrow, which 
may require special management considerations or protections. All areas 
designated as critical habitat for the Cape Sable seaside sparrow were 
occupied at the time of listing and are occupied now, within the 
species' historic geographic range, and contain sufficient PCEs to 
support at least one life history function.
    Based on our current knowledge of the life history, biology, and 
ecology of the sparrow, and the habitat requirements for sustaining its 
essential life history functions, we have determined that the PCEs for 
the Cape Sable seaside sparrows are:
    (1) Calcitic marl soils characteristic of the short-hydroperiod 
freshwater marl prairies of the southern Everglades.
    These soils support the unique vegetation community and probably 
many of the food items upon which sparrows depend. They also result 
from specific hydrologic conditions that are characteristic of the marl 
prairies. These soils are an integral component of sparrow habitat.
    (2) Herbaceous vegetation that includes greater than 15 percent 
combined cover of live and standing dead vegetation of one or more of 
the following species (when measured across an area of greater than 100 
ft\2\ (9.3 m\2\)): Muhly grass (Muhlenbergia filipes), Florida little 
bluestem (Schizachyrium rhizomatum), black-topped sedge (Schoenus 
nigricans), and cordgrass (Spartina bakeri).
    These plant species are largely characteristic of areas where 
sparrows occur. They act as cover and substrate for foraging, nesting, 
and normal behavior for sparrows during a variety of environmental 
conditions. Many other herbaceous plant species and low-growing forbs 
also occur within sparrow habitat (Ross et al. 2006, pp. 10-13), and 
some of these may have important roles in the life history of the 
sparrow. However, the species identified in the PCE consistently occur 
in areas occupied by sparrows (Sah et al. 2007, p. 5).
    (3) Contiguous open habitat. Sparrow subpopulations require large, 
expansive, contiguous habitat patches with few or sparse woody shrubs 
or trees.
    This PCE provides the space for population and individual growth, 
and also provides the open, contiguous habitat that sparrows prefer.
    (4) Hydrologic regime such that the water depth, as measured from 
the water surface down to the soil surface, does not exceed 7.9 inches 
(20 cm) for more than 30 days during the period from March 15 to June 
30 at a frequency of more than 2 out of every 10 years.
    This PCE indicates the hydrologic conditions that are required to 
support and maintain the vegetation composition that sparrows require, 
as well as those conditions that allow for successful nesting. The 
period of measurement coincides with the sparrow breeding season, as 
well as the late portion of the dry season and the early wet season. 
Water depths >7.9 inches (20 cm) during this period will result in 
elevated nest failure rates (Lockwood et al. 1997, p. 724; Lockwood et 
al. 2001, p.278; Pimm et al. 2002, pp. 24-25). If these water depths 
occur for short periods during nesting season, sparrows may be able to 
re-nest within the same season. These depths, if they occur for 
sustained periods (>30 days) within sparrow nesting season, will reduce 
successful nesting to a level that will be insufficient to support a 
population if they occur more frequently than 2 out of every 10 years. 
In addition, because the period of measurement coincides with the dry 
season and early wet season, and because water levels generally recede 
slowly, water depths greater than specified or that occur for periods 
longer than specified, will generally result in hydroperiods longer 
than those which support the vegetation composition required by the 
sparrow.
    The above PCEs describe: (1) Soils that are widespread in the 
Everglades short-hydroperiod marshes and support the vegetation types 
that the sparrows rely on; (2) plant species that are characteristic of 
sparrow habitat in a variety of hydrologic conditions, that provide 
structure sufficient to support sparrow nests, and that comprise the 
substrate that sparrows utilize when there is standing water; (3) 
contiguous open habitat because sparrows require large, expansive, 
contiguous habitat patches with sparse woody shrubs or trees; (4) 
hydrologic conditions that would prevent flooding sparrow nests, 
maintain hospitable conditions for sparrows occupying these areas, and 
generally support the vegetation species that are essential to 
sparrows; and (5) overall the habitat features that support the 
invertebrate prey base the sparrows rely on and the variability and 
uniqueness of habitat that provides, for example, periphyton mats for 
sparrows to survive in the southern Everglades.
    Units are designated based on sufficient PCEs being present to 
support one or more of the species' life history functions. Some units 
contain all PCEs and support multiple life processes, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat. Where a subset of the PCEs is present 
at the time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs and 
may require special management considerations or protection. All of the 
areas designated as critical habitat contain one or more of the PCEs. 
We find that all of the PCEs in the critical habitat may require 
special management considerations or protection due to threats to the 
species or its habitat. Such management considerations or protection 
include: measures to prevent damaging hydrologic conditions, control of 
invasive exotic plant species, and measures to prevent anthropogenic 
fires from spreading through Cape Sable seaside sparrow habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas that contain the physical and 
biological features that are essential to the conservation of the Cape 
Sable seaside sparrow and other areas that are essential to the 
conservation of the sparrow. We reviewed all available information 
about the sparrow's current and historical distribution, ecology and 
life history, and threats. This included peer-reviewed scientific 
publications; data and occurrence records compiled by resource 
management agencies, and independent researchers contracted by the 
Service and the NPS; unpublished reports; notes and communications with

[[Page 62750]]

other qualified biologists or experts; our own data and documents; and 
the final recovery plan for the sparrow (Service 1999). We also 
evaluated the conclusions and recommendations that resulted from an 
independent peer review of the science related to sparrows and their 
management that was conducted by the American Ornithologists' Union in 
1999 (Walters et al. 2000), and the recommendations and conclusions of 
the 2003 South Florida Ecosystem Restoration Multi-species Avian 
Workshop (SEI 2003), which was held to develop a common understanding 
of how four avian species, including the Cape Sable seaside sparrow, 
would respond to Everglades restoration. The Service also participated 
in the recent 2007 avian ecology workshop, and incorporated and 
considered scientific and technical information into the final rule 
that was presented at the workshop and provided in subsequent technical 
reports from scientists who gave presentations at the workshop. This 
information included recent results on sparrow population status and 
habitat, such as that cited in the final rule as Sah et al. 2007, and 
Pimm et al. 2007.
    Our principal sources of information for identifying the specific 
areas within the occupied range of the sparrow on which are found those 
features essential to their conservation were: past records of sparrow 
occurrence, distribution, and habitat use over time; data and 
occurrences compiled by FWC personnel, NPS personnel, and independent 
researchers contracted by the Service and the NPS; as well as peer-
reviewed published journal articles and unpublished technical reports.
    All historical and recent locations of sparrow occurrences were 
mapped to better delineate sparrow habitat. Current and historical 
habitat data from several sources were also evaluated to identify areas 
outside of the known occupied range of the Cape Sable seaside sparrow 
that may have the potential to support sparrows. However, while 
historical habitat maps and historical records of sparrows identified 
several areas outside of the sparrow's current range where sparrows may 
have occurred historically, these areas no longer contain one or more 
habitat features (PCEs) that would support sparrows. Therefore, we did 
not delineate as critical habitat any areas outside the geographical 
areas presently occupied by the species. We are not designating 
critical habitat on Cape Sable, in the Ochopee area, or in agricultural 
areas in the vicinity of Homestead where sparrows previously occurred 
for this reason.
    To delineate specific boundaries, we began with records of sparrow 
occurrence from comprehensive surveys conducted from 1981 to 2006 and 
identified all survey points where sparrows had been detected. Sparrow 
surveys were conducted in 1981 and each year from 1992 through present 
following a standard protocol (Pimm et al. 2002, p. 65-68), but every 
survey point was not necessarily surveyed every year. In addition, 
surveys cannot confirm the absence of sparrows from a survey point. To 
address the tendency to underestimate the occurrence and distribution 
of sparrows that results from incomplete surveys and inability to 
reliably determine absence of sparrows, a survey point was considered 
to be occupied if a sparrow was recorded in at least one year during 
the period from 1981 to 2006.
    Because survey points are arranged on a 0.6 mile (mi) (1 kilometer 
(km)) grid and sparrows may only be detected accurately within 656 feet 
(ft) (200 meters (m)) of a survey point (Pimm et al. 2002, p. 153), 
some areas between survey points remain unsurveyed. We used a 2,460-ft 
(750-m) radius around each sparrow occurrence to account for unsurveyed 
areas adjacent to or between the survey points where sparrows likely 
occurred. The 2,460-ft (750-m) radius distance is approximately half of 
the distance between diagonally adjacent survey points. In addition, 
this distance is slightly larger than the sum of the reliable sparrow 
detection distance from a point (656 ft (200 m)) plus the diameter of 
an average non-breeding season sparrow home range (1,526 ft (465 m), 
assuming a circular home range based on home range sizes in Dean and 
Morrison 2001, p. 36). This distance consequently represents an 
estimate of the area of habitat that sparrows detected at a point are 
likely to use.
    We drew a boundary that encompassed the 2,460-ft (750-m) radius 
around sparrow locations but also took into account the particular 
habitat characteristics as determined through detailed inspection of 
satellite imagery, aerial photography, and habitat maps. Outlying 
sparrow occurrences that were recorded in only one year and were not 
adjacent to other recorded sparrow observations were excluded. Areas 
along the boundary that did not contain features essential for the 
sparrow (such as tree islands, cypress forest, and deep-water slough 
communities) were excluded from the unit. The resulting boundary of 
each unit encompassed the core areas of habitat that have been occupied 
by sparrows since 1981. This approach relies on the results of multiple 
years of surveys and consequently provides a robust assessment of 
sparrow habitat.
    We believe the method we have used to delineate critical habitat 
encapsulates the core habitat that is important over time for all 
aspects of the sparrow's life history, accounting for the degree of 
natural variability in environmental and habitat conditions that occur 
within the Everglades. The criteria we employed to delineate the 
boundaries consistently encompass the areas where sparrows have 
occurred, despite the fact that sparrows may not occur at every point 
within unit boundaries in every year. In the variable environment of 
the Everglades wetlands, the size and distribution of the sparrow 
subpopulations may change in response to environmental conditions, 
fires, and other factors. In addition, the vegetation within these 
units may change in response to varying environmental conditions. These 
unit boundaries were delineated to provide sufficient area such that 
these subpopulations may continue to persist, even when taking into 
account some degree of vegetation change and changes in subpopulation 
size that may occur under adverse conditions. Several distinct units 
were delineated because flooding and the large fires may render entire 
units unsuitable for sparrows for extended periods (Lockwood et al. 
2003, p. 467). When this occurs, maintaining suitable habitat that 
supports sparrows in other units is necessary to ensure that the 
impacted units could be repopulated through immigration or through 
active management.
    The delineated areas include the majority of the remaining 
freshwater marl prairies that currently support the sparrow population 
and portions of the Spartina marshes that support sparrows and reflect 
the communities that were historically occupied by the sparrow 
throughout its range. Areas such as dense sawgrass marshes, pine or 
cypress forests, and mangroves are not included in the designation. We 
conducted field reconnaissance of some portions of the units and 
eliminated highly degraded sites, isolated fragments of potential 
habitat that were unlikely to contribute to the maintenance of the 
sparrow subpopulations, and areas where mangroves have recently 
encroached into marl prairie vegetation or where cypress trees are 
present, but not visible on aerial photographs. In the proposed rule, 
we delineated seven currently occupied areas that contain habitat 
features that are essential to the conservation of the Cape Sable 
seaside sparrow.
    We reviewed existing management and conservation plans for these 
areas

[[Page 62751]]

and evaluated the benefits of inclusion and exclusion of each area to 
determine if any of the areas should be excluded under section 4(b)(2) 
of the Act. On the basis of this review, we determined that the 
benefits of exclusion of two of these areas, which currently support 
sparrow subpopulation A, outweigh the benefits of their inclusion. 
Accordingly, while these areas contain the habitat features that are 
essential to the conservation of the species, they are excluded from 
this final designation (see Application of section 4(b)(2) of the Act 
below).
    When determining critical habitat boundaries, we made every effort 
to avoid including within the boundaries of the map developed areas 
such as buildings, paved areas, and other structures that lack PCEs for 
the Cape Sable seaside sparrow. The scale of the maps prepared under 
the parameters for publication within the Code of Federal Regulations 
may not reflect the exclusion of such developed areas. Any such 
structures and the land under them inadvertently left inside critical 
habitat boundaries shown on the maps of this rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
Federal actions limited to these areas would not trigger section 7 
consultation, unless they affect the species or PCEs in adjacent 
critical habitat.
    Five units are designated based on sufficient arrangement and 
quantity of the PCEs to support sparrow life processes. Some units 
contained all PCEs and supported multiple life processes. Some units 
contained only a portion of the PCEs necessary to support the sparrow's 
particular use of that habitat. Where a subset of the PCEs was present 
(such as water depth that does not exceed 7.9 in. (20 cm) for more than 
30 days during the period from March 15 to June 30 at a frequency of 
more than 2 out of every 10 years), these PCEs were sufficient to allow 
sparrows to occupy the site.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

Critical Habitat Designation

    We are designating five units as revised critical habitat for the 
Cape Sable seaside sparrow. The critical habitat units described below 
constitute our best assessment, at this time, of the areas determined 
to be occupied at the time of listing that contain the PCEs essential 
for the conservation of the species that may require special 
management. We are not designating any areas that were not known to be 
occupied at the time of listing. We consider all units as currently 
occupied. The area designated as critical habitat differs significantly 
from the original 1977 designation. The critical habitat boundaries in 
the 1977 designation were based on section-township-range boundaries, 
and only delineated relatively large, general areas within which 
sparrows were known to occur at that time. Consequently, many areas 
originally designated were never sparrow habitat, such as forested 
areas of Long Pine Key and dwarf cypress forests in ENP, deep water 
slough communities, and agricultural areas. These areas, therefore, are 
not included in this critical habitat designation, and we have instead 
sought in this designation to accurately delineate only the specific 
areas in which one or more of the PCEs are present. For further 
information on the changes from the original designation, see the 
descriptions of the individual units below.
    The five units proposed for designation as Cape Sable seaside 
sparrow critical habitat are: (1) Marl prairie habitats that support 
sparrow subpopulation B and lie exclusively within ENP in the vicinity 
of the Main Park Road, between Shark River Slough and Taylor Slough; 
(2) marl prairie habitat that supports sparrow subpopulation C within 
ENP along its eastern boundary in the vicinity of Taylor Slough; (3) 
marl prairie habitats that support sparrow subpopulation D within ENP 
and the State-owned Southern Glades Wildlife and Environmental Area to 
the east of Taylor Slough; (4) marl prairie habitats that support 
sparrow subpopulation E within ENP, along the eastern edge of Shark 
River Slough; and (5) marl prairies that support sparrow subpopulation 
F within the northern portion of ENP along its eastern boundary and 
lying to the east of Shark River Slough. Table 1 provides the area by 
unit determined to meet the definition of critical habitat for the Cape 
Sable seaside sparrow.

                       Table 1.--Critical Habitat Units for the Cape Sable Seaside Sparrow
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                         Federal acres        State acres         Total acres
                Critical habitat unit                     (hectares)          (hectares)          (hectares)
----------------------------------------------------------------------------------------------------------------
1. Unit 1--subpopulation B..........................     39,053 (15,804)                   0     39,053 (15,804)
2. Unit 2--subpopulation C..........................       7,951 (3,218)                   0       7,951 (3,218)
3. Unit 3--subpopulation D..........................           833 (337)       9,867 (3,993)      10,700 (4,330)
4. Unit 4--subpopulation E..........................      22,278 (9,016)                   0      22,278 (9,016)
5. Unit 5--subpopulation F..........................       4,883 (1,976)                   0       4,883 (1,976)
                                                     -----------------------------------------------------------
    Total...........................................     74,998 (30,351)       9,867 (3,993)     84,865 (34,344)
----------------------------------------------------------------------------------------------------------------

    Below, we provide a brief description and rationale for each unit 
of revised critical habitat for the Cape Sable seaside sparrow.

Unit 1--Subpopulation B

    Unit 1--subpopulation B, consists of 39,053 ac (15,804 ha) of marl 
prairie and lies exclusively within ENP. The unit is bounded on the 
south by the long-hydroperiod Eleocharis-dominated wet prairie and 
mangrove zone just inland of Florida Bay, on the west by the sawgrass 
marshes and deepwater slough communities of Shark River Slough, on the 
north by the pine rockland vegetation communities that occur within ENP 
on Long Pine Key, and on the east by the sawgrass marshes and deepwater 
slough vegetation community of Taylor Slough. There is a continuous 
elevational gradient across the site, from the high elevations of the 
pine rocklands north of the unit down to the mangroves in the south. 
The area is bisected by the Main Park Road, which serves as the primary 
public access route from Homestead to Florida Bay. It is also bisected 
by the Old Ingraham Highway, which is an abandoned and partially 
restored roadway that historically provided access from Homestead to 
Florida Bay. Much of the

[[Page 62752]]

western portion of this roadway was removed and restored to grade, but 
the eastern portions of the road, with its associated borrow canal and 
woody vegetation, interrupt the contiguity of the prairies within the 
eastern portion of this unit. Besides the road, borrow canal, and woody 
vegetation, which are not critical habitat, the area consists of one 
large, contiguous expanse of marl prairie that contains all of the PCEs 
for the sparrow.
    When sparrows were first recorded in the area during 1974 to 1975 
surveys, they were abundant and widespread (Werner 1975, pp. 32-33). 
Based on their limited mobility and dispersal capabilities and the 
presence and persistence of suitable habitat, we believe that the 
sparrows have occupied this locality since at least the time of 
listing. These same areas have remained occupied by sparrows since 
their discovery over 30 years ago. Consequently, we consider the unit 
to be occupied at the time of listing. The majority of this area was 
included in the 1977 critical habitat designation for the sparrow (42 
FR 40685 and 42 FR 47840).
    The area is the largest contiguous patch of marl prairie east of 
Shark River Slough. It is currently occupied, and has consistently 
supported the largest sparrow subpopulation since 1992 (Pimm et al. 
2002, p. 70; Pimm and Bass 2006, p. 16). The natural characteristics of 
this area make it relatively immune to risk of flooding or frequent 
fires (Walters et al. 2000, p. 1110). Its location south of the high-
elevation pine rocklands provides it a degree of protection from high 
water levels that do not occur within any other units. Within the 
southern portion of the greater Everglades watershed, water flows from 
north to south, with most water moving through Shark River Slough, and 
to a lesser extent through Taylor Slough. The pinelands block the 
southward flow of water across this area such that the primary 
influences on water levels are rainfall and overflow from the flanking 
sloughs. In addition, portions of the area occur on relatively high 
elevations and remain relatively dry. Consequently, this area is not 
easily flooded as a result of managed water releases or upstream 
events, and the high water levels that may occur within other sparrow 
subpopulations are dampened by its relative position and topographic 
characteristics.
    Similarly, the area is not particularly vulnerable to fires. It is 
not overdrained as a result of local hydrologic management actions, and 
the fire frequency is primarily influenced by natural ignition and 
managed prescribed fire. The public road that traverses the area could 
result in an increased likelihood of ignitions, but this has not 
occurred to date. In addition, the presence of both the Main Park Road 
and the Old Ingraham Highway within this unit provides human access 
greater than in any other unit and may allow better opportunities to 
manage both prescribed fires and wildfires such that they would pose a 
reduced risk to the persistence of the sparrow subpopulation.

Unit 2--Subpopulation C

    Unit 2--subpopulation C consists of 7,951 ac (3,218 ha) of marl 
prairie habitat that lies exclusively within ENP in the vicinity of 
Taylor Slough, along the eastern edge of ENP. The unit consists of the 
prairies that flank both sides of the relatively narrow Taylor Slough. 
The area is bordered by the pine rocklands of Long Pine Key on the west 
and by isolated pine rocklands and the L-31 W canal that runs along the 
ENP boundary to the east. It is bordered by an area of constriction in 
Taylor Slough that is closely flanked on both sides by forested 
habitats at the southern end and by the Rocky Glades, a region of thin 
marl soils and exposed limestone and sparse vegetation (ENP 2005, p. 
4), to the north. The area is bisected by Main Park Road in the 
southern portion of the unit, but the remainder of the unit consists of 
contiguous marl prairies.
    Although, sparrows were discovered in the area in 1972 (Ogden 1972, 
p. 852), we consider this unit to be occupied at the time of listing. 
At the time of discovery, sparrows were found to be widely distributed 
and abundant in this area (Werner 1975, p. 32). Based on their limited 
mobility and dispersal capabilities and the presence and persistence of 
suitable habitat, we believe that the sparrows have occupied this 
locality since at least the time of listing. These same areas have 
remained occupied by sparrows since their discovery over 30 years ago. 
Following its discovery, the site was the location of some of the first 
intensive study of the sparrow's biology and its relationship to its 
habitat (Werner 1975, p. 17). This area lies entirely within the 1977 
critical habitat designation for the sparrow (42 FR 40685 and 42 FR 
47840).
    During the mid-1970s, sparrows were abundant at this site (Werner 
1975, p. 32), and surveys in 1981 estimated 432 sparrows in this area 
(Pimm et al. 2002, p. 70). Since 1981, the sparrow subpopulation at 
this site has declined and has ranged from zero to 144 sparrows between 
1995 and the present (Pimm et al. 2002, p. 70; Pimm and Bass 2006, p. 
16). When sparrows were abundant in the area, the area was in a 
relatively dry condition, and water levels only rose above ground level 
for limited periods. Beginning in 1980, a pump station, which was 
installed along the eastern boundary of ENP at the approximate location 
of the historic slough, was operated to increase hydroperiods in the 
area resulting in extended hydroperiods within the portions of the area 
downstream from the pump station (ENP 2005, p. 39). Vegetation changed 
in this area from marl prairie to sawgrass marsh (ENP 2005, pp. 3-40), 
and sparrows ceased to occur in this area. At the same time, the 
northern portions of sparrow subpopulation C, above the pump station, 
continued to be overdrained as a result of the adjacent canal and a 
lowered water table in the agricultural lands immediately adjacent to 
ENP (Johnson et al. 1988, pp. 30-31; ENP 2005, p. 53). In these 
overdrained areas, frequent fires impacted the habitat and resulted in 
reduced sparrow numbers (Pimm et al. 2002, p. 77).
    This area provides a contiguous expanse of habitat that is largely 
separated from other nearby subpopulations in an area that is uniquely 
influenced by hydrologic characteristics. The Taylor Slough basin is a 
relatively small system, and much of the headwaters of the Slough are 
cut off by canals and agricultural development to the east of ENP. 
Portions of this unit near the slough have deep soils (15.7 inches (40 
cm)) (Taylor 1983, pp. 151-152) and support resilient vegetation that 
responds rapidly following fire (Taylor 1983, p. 151-152; Werner and 
Woolfenden 1983, p. 62). Sparrows were reported to reoccupy burned 
sites in this region within 1 to 2 years following fire (Werner and 
Woolfenden 1983, p. 62). The unit contains the vegetation 
characteristics upon which sparrows rely, and most of the area 
currently experiences hydrologic conditions that are compatible with 
sparrows (one or more of the PCEs). This area remains heavily 
influenced by hydrologic management along the eastern boundary of ENP 
(ENP 2005, p. 17-18). Portions of the area are also overdrained, 
resulting in the possibility of high fire frequency.
    The location of this unit relative to other sparrow subpopulations 
is significant in that it occurs in the center of the five sparrow 
subpopulations that occur east of Shark River Slough in the vicinity of 
Taylor Slough (subpopulations B through F). The habitat in this area 
most likely plays an important role in supporting dispersal among the 
eastern subpopulations, acting as a ``hub'' that facilitates

[[Page 62753]]

dispersal in the region and recolonization of local areas that are 
detrimentally impacted.

Unit 3--Subpopulation D

    Unit 3--subpopulation D consists of 10,700 ac (4,330 ha) of marl 
prairie vegetation in an area that lies on the eastern side of the 
lower portion of Taylor Slough. The majority of this area (9,867 ac 
(3,993 ha)) is within the Southern Glades Wildlife and Environmental 
Area, which is jointly managed by the SFWMD and FWC. The remaining 883 
ac (337 ha) occurs within the boundary of ENP. The area is bordered on 
the south by the long-hydroperiod Eleocharis vegetation and mangroves 
that flank Florida Bay, on the west by the sawgrass marshes and deep-
water vegetation of Taylor Slough, on the east by long-hydroperiod 
Eleocharis vegetation and overdrained areas with shrub encroachment in 
the vicinity of U.S. Highway 1, and on the north by agricultural lands 
and development in the vicinity of Homestead and Florida City.
    When sparrows were discovered in this area, they were widespread 
(Werner 1975, p. 32). Based on their limited mobility and dispersal 
capabilities and the presence and persistence of suitable habitat, we 
believe that the sparrows have occupied this locality since at least 
the time of listing. These same areas have remained occupied by 
sparrows since their discovery over 30 years ago. We consequently 
consider this unit to be occupied at the time of listing. A portion of 
this area, including both Federal- and State-owned lands was included 
in the 1977 critical habitat designation for the sparrow (42 FR 40685 
and 42 FR 47840).
    This is the easternmost area where sparrows occur and is the only 
subpopulation that occurs on the eastern side of Taylor Slough. It is 
consequently unlikely to be affected by the same factors (e.g., large 
fires or extreme hydrologic conditions) that affect the other eastern 
subpopulations that lie primarily between Shark River Slough and Taylor 
Slough., because this area is separated from other sparrow 
subpopulations by Taylor Slough, and the area immediately north of this 
subpopulation consists of agriculture and urban/suburban areas around 
Homestead and Florida City. These discontinuities in the landscape 
would tend to prevent fires from spreading from the area which supports 
sparrow subpopulations B, C, E, and F into the subpopulation D area. 
Similarly, hydrologic conditions in this region are different than 
those that affect the other subpopulations because water levels would 
are attenuated by Taylor Slough and influenced by flood protection and 
water supply infrastructure in the urban/agricultural areas to the 
north. Loss of suitable habitat and the sparrow subpopulation within 
this area would result in a reduction in the geographic range of the 
sparrow.
    The 1981 comprehensive survey of potential sparrow habitat 
estimated 400 sparrows within this region (Pimm et al. 2002, p. 70). 
This was higher than any number of sparrows recorded in the area in 
recent years, and estimates have ranged from zero to 112 sparrows 
between 1992 and the present (Pimm et al. 2002, p. 70; Pimm and Bass 
2006, p. 16). The area currently contains all PCEs, but the majority of 
the area is dominated by sawgrass, which indicates a wetter-than-
average condition within the spectrum of conditions that support marl 
prairie and sparrow habitat (Ross et al. 2006, p. 16). The habitat in 
this area is divided by several canals that are part of the C-111 
basin. This canal system results in relatively altered hydrologic 
conditions in the region (ENP 2005, p. 18) and causes extended 
hydroperiods during wet periods (Pimm et al. 2002, p. 78). These 
factors influencing hydrologic conditions will continue to require 
management in the future.

Unit 4--Subpopulation E

    Unit 4--subpopulation E consists of 22,278 ac (9,016 ha) of marl 
prairie habitat in an area that lies along the eastern margin of Shark 
River Slough. This unit occurs entirely within ENP. The area is 
bordered to the south by the pine rocklands of Long Pine Key and by an 
area dominated by dwarf cypress trees. The sawgrass marshes and 
deepwater slough vegetation communities of Shark River Slough comprise 
the western and northern boundary of the area, and the Rocky Glades 
comprise the eastern boundary.
    When sparrows were discovered in this area, they were relatively 
widespread (Werner 1975, p. 33). Based on their limited mobility and 
dispersal capabilities and the presence and persistence of suitable 
habitat, we believe that the sparrows have occupied this locality since 
at least the time of listing. These same areas have remained occupied 
by sparrows since their discovery over 30 years ago. We consequently 
consider this unit to be occupied at the time of listing. The majority 
of this area was included in the 1977 critical habitat designation for 
the sparrow (42 FR 40685 and 42 FR 47840). This area is currently 
occupied by sparrows and contains all of the PCEs.
    This area supports one of the large, relatively stable sparrow 
subpopulations. It is centrally located among the areas supporting 
other subpopulations, and its central location probably plays an 
important role in aiding dispersal among subpopulations, particularly 
movements from the eastern subpopulations to the subpopulations west of 
Shark River Slough. Since 1997, this area has supported the second 
largest sparrow subpopulation, ranging from 576 to nearly 1,000 
individuals in recent years (Pimm et al. 2002, p. 70; Pimm and Bass 
2006, p. 16).
    The centrality of this subpopulation helps to prevent it from being 
affected by managed hydrologic conditions because it is distant from 
canals, pumps, and water management structures that occur along the 
boundaries of ENP. The magnitude of any managed water releases is 
generally dampened by the time their influences reach this area. 
However, the proximity of this area to Shark River Slough may make the 
habitats and the sparrows that they support vulnerable to hydrologic 
effects during wet periods. The western portions of the area may become 
too deeply inundated to provide good habitat for sparrows under some 
deep water conditions. Large-scale hydrologic modifications, such as 
those proposed under the CERP, have the potential to influence habitat 
conditions in this area (e.g., PCEs), and may require special 
management attention. Large-scale fires may detrimentally affect this 
area, and there are no intervening features in the region that would 
aid in reducing the potential impacts on this subpopulation. While the 
area is relatively distant from ENP boundaries and potential sources of 
human-caused ignition, fires that are started along the eastern ENP 
boundary may rapidly spread into the area. The 2001 Lopez fire was a 
human-caused fire that affected a portion of this unit (Lockwood et al. 
2005, p. 4). Risk from fire may also require management in this area to 
prevent impacts to this large sparrow subpopulation.

Unit 5--Subpopulation F

    Unit 5--subpopulation F consists of 4,883 ac (1,976 ha) of marl 
prairie that lies along the eastern boundary of ENP, and is the 
northernmost of the units. This is the smallest of the units. It is 
bounded on the north and west by the sawgrass marshes and deep-water 
slough vegetation communities associated with Shark River Slough, and 
on the east by agricultural and residential development and the 
boundary of ENP. Its southern boundary is defined by the sparse 
vegetation and shallow soils of the Rocky Glades.

[[Page 62754]]

    When sparrows were discovered in this area, they were relatively 
widespread (Werner 1975, p. 33). Based on their limited mobility and 
dispersal capabilities and the presence and persistence of suitable 
habitat, we believe that the sparrows have occupied this locality since 
at least the time of listing. These same areas have remained occupied 
by sparrows since their discovery over 30 years ago. We consequently 
consider this unit to be occupied at the time of listing. The majority 
of this area was included in the 1977 critical habitat designation for 
the sparrow (42 FR 40685 and 42 FR 47840). This area is currently 
occupied by sparrows, and contains all of the PCEs.
    The first comprehensive surveys of potential sparrow habitat in 
1981 resulted in an estimated population of 112 sparrows in this area, 
and most subsequent surveys have resulted in estimates lower than this, 
including several years when no sparrows were found (Pimm et al. 2002, 
p. 70; Pimm and Bass 2006, p. 16). However, sparrows were always found 
in the area in the year following a zero count (Pimm et al. 2002, p. 
70), indicating that sparrows are consistently using the area.
    This area would serve to support or recolonize subpopulations C and 
E (in units 2 and 4) if those areas were to become unsuitable. Loss of 
habitat in this area would also result in a reduction in the total 
spatial distribution of sparrows. Its position in the landscape results 
in a unique set of threats that differ from those in other 
subpopulations. Because of its proximity to urban and agricultural 
areas and its relative topographic location, this area has been 
consistently overdrained in recent years and remains dry for longer 
periods than other subpopulations. The relative dryness of the area may 
allow the site to remain suitable as habitat for sparrows under very 
wet conditions, when other subpopulations may become deeply inundated 
for long periods.
    Because of its dryness and its proximity to developed areas, this 
area has been subjected to frequent human-caused fires during the past 
decade, resulting in periods of poor habitat quality. The PCEs within 
this unit may require special management consideration due to the 
threat from fire. In addition, the dry conditions have allowed 
encroachment of woody vegetation, including invasive exotic and native 
woody species. Invasive exotic trees, primarily Australian pine 
(Casuarina spp.), melaleuca (Melaleuca quinquenervia), and Brazilian 
pepper (Schinus terebinthifolius), have become established in local 
areas (Werner 1975, pp. 46-47), often forming dense stands. These trees 
have reduced the suitability of some portions of the habitat for 
sparrows and have reduced the amount of contiguous open habitat. 
Aggressive management programs have been implemented by management 
agencies to address this issue, and control of woody vegetation will 
continue to be required.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the PCEs to be 
functionally established) to serve the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the Cape Sable seaside sparrow 
or its designated critical habitat will require section 7 consultation 
under the Act. Activities on State, Tribal, local or private lands 
requiring a Federal permit (such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal

[[Page 62755]]

Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7 consultation.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Cape Sable Seaside Sparrow and Its 
Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for Cape Sable seaside sparrow 
jeopardy analyses that relies heavily on the importance of 
subpopulations to the survival and recovery of the sparrow. The section 
7(a)(2) analysis is focused not only on these subpopulations but also 
on the habitat conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the sparrow in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected subpopulation(s), 
inclusive of associated habitat conditions, a jeopardy finding for the 
species is warranted, because of the relationship of each subpopulation 
to the survival and recovery of the species as a whole.
Adverse Modification Standard
    For the reasons described in the Director's December 9, 2004 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the PCEs to be functionally established) 
to serve the intended conservation role for the species. Generally, the 
conservation role of the Cape Sable seaside sparrow critical habitat 
units is to support viable core area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of the designated critical habitat for the sparrow is appreciably 
reduced. Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for the sparrow include, but are not limited to:
    (1) Actions that would significantly and detrimentally alter the 
hydrology of marl prairie habitat found in all units. Such activities 
could include, but are not limited to, changes to hydrological 
management plans that result in increased depth of inundation or 
duration of flooding within sparrow habitat during the breeding season 
or draining the areas resulting in increased fire;
    (2) Actions that would allow encroachment of nonnative and invasive 
woody plant species. Such activities could include, but are not 
limited, to local or regional overdrying and introduction of nonnative 
woody plant species;
    (3) Actions that would significantly and detrimentally alter the 
topography of a site (such alteration may affect the hydrology of an 
area or may render an area unsuitable for nesting). Such activities 
could include, but are not limited to, off-road vehicle use and 
mechanical clearing;
    (4) Actions that would reduce the value of a site by significantly 
disturbing sparrows from activities, such as foraging and nesting; and
    (5) Actions that would significantly and detrimentally alter water 
quality that may lead to detrimental changes in vegetation species 
composition and structure or productivity of prey organisms and may 
have direct detrimental effects on sparrows.
    These activities could reduce population sizes and the likelihood 
of persistence within one or more sparrow subpopulations, and reduce 
the suitability of habitat for breeding for extended periods.
    We consider all of the units designated as critical habitat to 
contain features that are essential to the conservation of the Cape 
Sable seaside sparrow. All units are within the geographic range of the 
species, all areas are currently occupied by sparrows (based on surveys 
conducted since 1981; Pimm et al. 2002, pp. 70-84; Pimm and Bass 2006, 
pp. 3-6), and all areas are likely to be used by the sparrow. Federal 
agencies already consult with us on activities in areas currently 
occupied by the sparrow if the species may be affected by the activity 
to ensure that those Federal actions do not jeopardize the continued 
existence of the sparrow or destroy or modify its current designated 
critical habitat.

Exemptions and Exclusions

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

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion, and the 
Congressional record is clear that, in making a determination under the 
section, the Secretary has discretion as to which factors and how much 
weight will be given to any factor.

Economics

    The primary purpose of an economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the sparrow. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species and the incremental impacts of the 
critical habitat designation itself. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    Economic analyses typically measure impacts against a baseline, 
which is normally described as the way the world would look absent the 
proposed action. This is often referred to as the ``incremental'' 
approach. In 2001, the U.S. Tenth Circuit Court of Appeals

[[Page 62756]]

found that the incremental approach provided ``meaningless'' results 
and instructed the Service to conduct a full analysis of all of the 
economic impacts of proposed critical habitat, regardless of whether 
those impacts are attributable coextensively to other causes (New 
Mexico Cattle Growers Assn v. U.S.F.W.S., 248 F.3d 1277 (10th Cir. 
2001)). However, since that decision, courts in several other cases 
have held or implied that an incremental analysis is proper (see Cape 
Hatteras Access Preservation Alliance v. Department of Interior, 344 F. 
Supp. 2d 108 (D.D.C. 2004); CBD v. BLM, 422 F. Supp. 2d 1115 (N.D. Cal. 
2006).
    Accordingly, we have reevaluated the baseline used for critical 
habitat economic analyses. The economic analysis uses a traditional 
regulatory analysis approach and examines the economic impact of the 
regulatory change being considered. However, because there is interest 
by the courts and the public in seeing the total costs of regulation, 
the analysis also quantifies the existing regulatory baseline. When 
quantifying the baseline, the analysis looks back to the time of 
listing.
    When estimating the incremental impacts of the critical habitat 
designation, the Service must consider that most courts have agreed 
with the New Mexico Cattle Growers court when it determined that the 
Service cannot simply equate adverse modification standard and the 
jeopardy standard and conclude that there are no economic costs. The 
New Mexico Cattle Growers court said ``Congress clearly intended that 
economic factors were to be considered.'' Therefore, when conducting 
this analysis, it is important to attempt to distinguish between the 
regulation that would exist prior to the designation of critical 
habitat, under the jeopardy standard, and under sections 9 and 10 of 
the Act, and the additional regulation that world exist with 
designation of critical habitat.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. This draft analysis was 
based on the coextensive approach only and estimated the potential 
future impacts associated with conservation efforts for the sparrow in 
areas proposed for critical habitat designation. The draft analysis was 
made available for public review on August 14, 2007 (72 FR 46189). We 
accepted comments on the draft analysis until September 17, 2007. The 
final economic analysis added the incremental approach, which can be 
found in Appendix B of the report.
    According to the above described principles, the final economic 
analysis evaluated the potential future effects associated with the 
listing of the sparrow, as well as any potential effect of the 
designation of critical habitat above and beyond those regulatory and 
economic impacts associated with the listing. To quantify the 
proportion of total potential economic impacts attributable to the 
critical habitat designation, the analysis evaluated a ``without 
critical habitat'' baseline and compared it to a ``with critical 
habitat'' scenario. The ``without critical habitat'' baseline 
represented the current and expected economic activity under all 
modifications prior to the critical habitat designation, including 
protections afforded the species under Federal and State laws. The 
difference between the two scenarios measured the net change in 
economic activity attributable to the designation of critical habitat.
    The economic analysis estimates total potential future impacts 
associated with conservation efforts for the sparrows in areas 
designated to be $32.2 million over the next 20 years (undiscounted). 
The present value of these impacts is $26.9 million using a discount 
rate of three percent, or $22.2 million using a discount rate of seven 
percent. The annualized value of these impacts is $1.8 million to $6.70 
million, using a discount rate of three percent, or $2.1 million using 
a discount rate of seven percent.
    The majority, or 58 percent, of the total potential costs estimated 
in this report are associated with potential species management efforts 
(e.g., surveying and monitoring, research, exotic vegetation control, 
etc.). The remaining costs are associated with potential water 
management changes to conserve the sparrow (33 percent), fire 
management (7 percent), and administrative costs of consultation (2 
percent).
    Incremental impacts of critical habitat designation are forecast to 
be $64,000 (present value at a three percent discount rate). 
Anticipated costs of critical habitat are the value of time and effort 
of conducting section 7 consultations beyond those associated with the 
listing of the sparrow. Critical habitat designation for the sparrow is 
not expected to require modifications to land uses and activities above 
and beyond modifications that are already required under the listing. 
However, there are components of CERP that have not been planned 
sufficiently to date to allow evaluation and determination of whether 
or not they will be completely compatible with the designated critical 
habitat, and CERP project designs are expected to continue to change in 
the future. Due to the uncertain nature and extent of these potential 
changes, the economic analysis cannot estimate the potential 
incremental impact of sparrow critical habitat designation on water 
management activities beyond 2011. Further, due to the controversial 
nature and complexity of consultations related to water management, the 
actual administrative costs of consultation may be higher than the 
average estimates; therefore, incremental administrative costs may be 
underestimated.
    Because it may not be feasible to monetize, or even quantify, the 
benefits of environmental regulations due to either an absence of 
defensible, relevant studies or a lack of resources on the implementing 
agency's part to conduct research, the Service believes that the direct 
benefits of critical habitat designation are best expressed in 
biological terms that can be weighed against the expected cost impacts 
of the rulemaking. Our economic analysis indicates potential cost 
resulting from the designation that may be considered measurable, but 
cannot be considered disproportionate. Therefore, we conclude that 
there are no significant economic benefits to excluding any areas from 
critical habitat.
    A copy of the final economic analysis with supporting documents are 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, South Florida Ecological Services 
Office (see ADDRESSES).

Other Relevant Impacts

    Under section 4(b)(2) of the Act, we must consider, in addition to 
economic impacts, all other relevant impacts. We consider a number of 
factors in a section 4(b)(2) analysis. For example, we consider whether 
there are lands owned or managed by the Department of Defense (DOD) 
where a national security impact might exist. We also consider whether 
the landowners have developed any conservation plans for the area, or 
whether there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues and consider the government-to-government 
relationship of the United States with Tribal entities. We also 
consider any social impacts that might occur because of designation.
    We have determined that the lands within the designation of 
critical habitat for the Cape Sable seaside sparrow are not owned or 
managed by the Department of Defense, there are currently no habitat 
conservation plans

[[Page 62757]]

for the sparrow, and the designation does not include any sovereign 
Tribal lands. The units do include areas of ENP and BCNP that contain 
significant Tribal cultural sites and trust resources. We discuss these 
areas below. Similarly, the designation may result in incidental 
impacts to lands under perpetual lease to the Miccosukee Tribe of 
Indians of Florida. We anticipate no impact to national security.
    The following is our analysis of the benefits, other than 
economics, of including all lands considered and proposed as critical 
habitat and the benefits of excluding such lands.
(1) Benefits of Inclusion
    The principal regulatory benefit of critical habitat is that 
federally authorized, funded, or carried out activities require 
consultation pursuant to section 7 of the Act to ensure that they will 
not destroy or adversely modify critical habitat. In the Gifford 
Pinchot decision, the U.S. Court of Appeals for the Ninth Circuit ruled 
that adverse modification evaluations require consideration of impacts 
on the recovery of species (379 F.3d 1059, 1070-1072). With respect to 
conducting section 7 consultations, designation of critical habitat 
would provide benefit by ensuring consideration of potential habitat 
impacts under the adverse modification standard within designated units 
for actions with a Federal nexus.
    A benefit of inclusion would be that in certain CERP alternative 
scenarios, particularly those related to sparrow subpopulation A 
(proposed critical habitat Units 1 and 2), consultation under section 
7(a)(2) of the Act under the adverse-modification standard may result 
in a determination of destruction or adverse modification of designated 
critical habitat for some CERP components and result in implementation 
of Reasonable and Prudent Alternatives that would protect the sparrow 
habitat as it presently exists.
    Similarly, a benefit of inclusion with respect to the Interim 
Operational Plan for the Protection of Cape Sable Seaside Sparrow (IOP) 
construction of a water management feature would be that 75 ac (31 ha) 
of proposed unit 7 (sparrow subpopulation F) within the construction 
footprint would allow us to reassess the project impacts and either 
adopt the conference opinion on the project as part of a biological 
opinion, or re-initiate formal consultation of the IOP under section 7 
of the Act, which the specific project is a part.
    However, the benefit of inclusion in the form of ensuring 
consideration of sparrow habitat through section 7 consultation is 
small due to the comprehensive restoration and management plans, 
detailed below, that already consider the needs of sparrow habitat and 
the level of active involvement and oversight in Everglades restoration 
planning, and acknowledging the objectives of restoring the hydrology 
within the Everglades, including those areas occupied by sparrows.
    IOP is a hydrologic operations plan for the southern Everglades 
wetlands that was enacted in 2002 in response to a Service jeopardy 
biological opinion on a previous water management plan and its impacts 
to Cape Sable seaside sparrows. The IOP is composed of implementing 
measures to reduce flows into sparrow subpopulation A from excessive 
flooding that would impact the sparrow habitat, while increasing water 
deliveries to the eastern portions of ENP, including sparrow 
subpopulations C, E, and F, which would improve sparrow habitat that 
had been overdrained. The IOP is expected to be replaced in coming 
years by the Combined Structural and Operational Plan (CSOP), an early 
Everglade restoration project, and ultimately by the Comprehensive 
Everglades Restoration Plan (CERP).
    CERP has been described as the world's largest ecosystem 
restoration effort and includes more than 60 major components. The 
overarching objective of CERP is the restoration, preservation and 
protection of the south Florida ecosystem while providing for other 
water-related needs of the region. It covers 16 counties over an 
18,000-square-mile area, and centers on an update of the Central & 
Southern Florida (C&SF) Project.
    The remaining Everglades no longer exhibit the functions and 
richness that defined the pre-drainage ecosystem. There has been a 
substantial reduction in the size of the Everglades. Water volumes, 
flow patterns, and water quality within the Everglades ecosystem have 
been substantially altered. The changes that have taken place in the 
natural system have led to decreases in native animal and plant 
populations. Compartmentalization caused by construction of physical 
barriers such as canals, levees, and roads, or even hydrologic barriers 
(such as the Water Conservation Areas) has fragmented the system by 
creating a series of poorly connected natural areas. CERP is intended 
to reverse the course of the declining health of the ecosystem.
    Increasing spatial extent and improving habitat quality can provide 
a base for improving species abundance and diversity. Improving the 
connectivity of habitats may also improve the range of many animals and 
their prey-base and provide for a more natural balance of species 
within the system. The goal of Everglades restoration is to return the 
pattern, timing, and volume of water flows to the Everglades landscape 
to conditions similar to those which occurred prior to the first 
efforts to control the water in the Everglades, which occurred around 
1900.
    Service biologists participate on Comprehensive Everglades 
Restoration Plan project delivery teams and aid in formulating plans, 
developing alternatives, and evaluating project benefits to help ensure 
that proposed restoration projects provide benefits for listed species 
and other Service trust resources. The Service and other 
representatives of the Department of the Interior (NPS, U.S. Geological 
Survey, and the South Florida Ecosystem Restoration Task Force) are 
also actively involved in oversight of the overall Everglades 
restoration program to ensure that the Department's interests, 
including endangered species, are addressed and incorporated into 
restoration projects. In particular, the South Florida Ecosystem 
Restoration Task Force was established under the WRDA of 1996 (Pub. L. 
104-303, section 528(f)) for the specific purpose of coordinating the 
development of consistent policies, strategies, plans, programs, 
projects, activities, and priorities addressing the restoration, 
preservation, and protection of the South Florida ecosystem. With this 
level of active involvement and oversight in Everglades restoration 
planning, and acknowledging the objectives of restoring the hydrology 
within the Everglades, including those areas occupied by sparrows, the 
benefits of inclusion in the form of ensuring consideration of sparrow 
habitat through section 7 consultation and improving awareness of 
opportunities for sparrow conservation during Everglades restoration 
are small.
    In addition to CERP, which primarily addresses hydrologic 
management, all properties where sparrows currently occur, which 
include all areas that meet the definition of critical habitat, are 
managed under management plans that identify management goals and 
activities that will benefit sparrows and sparrow habitat.
    For example, the Conceptual Management Plan (CMP) for the Southern 
Glades Wildlife and Environmental Area, which supports sparrow 
subpopulation D, includes management to maintain wildlife

[[Page 62758]]

species on the property, including the sparrow. The property was 
acquired under Florida's ``Save Our Rivers'' Program. The program 
directs the management and maintenance of lands acquired under the 
program to occur ``in such a way that as to restore and protect their 
natural state and condition.'' (FWC 1998). The CMP identifies two 
wildlife management goals that relate to sparrow conservation: (1) To 
achieve and maintain the natural diversity, abundance, and distribution 
of wildlife; (2) to maintain, increase, and ensure the abundance and/or 
distribution of threatened and endangered wildlife to the point they 
are no longer threatened or endangered.'' A similar goal for habitat 
management in the CMP is ``to restore altered ecosystems and wildlife 
communities to the species composition, abundance, and distribution of 
fish and wildlife characteristic of and dependent upon native plant 
communities.'' Management actions undertaken in recent years include 
hydrologic restoration through removal of barriers to flow, and 
treatment of over 250 ac (101 ha) of exotic vegetation (SFWMD 2005, p. 
13).
    ENP, which contains the entirety of four proposed units (3, 4, 6, 
and 7), and portions of three proposed units (1, 2, and 5), is 
currently operating under a General Management Plan (GMP) developed in 
1989, which was developed in accord with the NPS Organic Act and the 
Everglades National Park Protection and Expansion Act of 1989 (Pub. L. 
101-229). The GMP calls for maintenance of habitats and protection for 
threatened and endangered species. ENP is currently developing a new 
GMP. The Service is an active participant on the planning team for the 
revised GMP, and will work with ENP planners to ensure that the final 
plan incorporates protections to sparrows and their habitats within 
ENP. We will also conduct section 7 consultation on the revised plan 
once it is finalized.
    Big Cypress National Preserve, which contains portions of proposed 
Units 1 and 2, is currently managed under a 1991 GMP. This GMP also 
addresses protection and management of threatened and endangered 
species habitat. It specifically addresses the Cape Sable seaside 
sparrow, with an emphasis on appropriate fire management to maintain 
both favorable vegetation and sparrows. It also includes discussion of 
conducting research to determine the cause of sparrow decline in the 
Ochopee region, efforts to reestablish sparrow populations in the 
Ochopee region, and implementing exotic plant control to minimize 
effects on sparrows. We will also conduct section 7 consultation on any 
changes to the GMP that may affect sparrows, with or without a revised 
critical habitat designation.
    In addition to the existing plans and plans in development for all 
of the properties that contain proposed critical habitat units, 
representatives of all of the agencies that manage these properties 
actively participate in annual meetings held for the sole purpose of 
reviewing sparrow monitoring results, identifying opportunities to 
improve sparrow habitat, and addressing sparrow management issues, and 
fire management in particular. Participants at these meetings help 
develop wildfire management strategies in sparrow habitat, develop 
prescribed fire plans, and discuss other sparrow habitat management 
activities and research and monitoring. Participants in these meetings 
include land management agencies, the Service, sparrow researchers, and 
other experts.
    The sparrow occurs almost exclusively on public land managed for 
conservation purposes, which include the protection of listed species. 
Critical habitat designation alone does not require specific steps 
toward recovery, and protections and plans already in place on these 
properties provide for maintenance of sparrows and sparrow habitat on 
all proposed critical habitat units and all areas where sparrows 
currently occur. The agencies tasked with managing these lands also 
routinely participate in meetings to coordinate sparrow recovery, 
protection, and management measures. These protections and management 
assurances will remain in place regardless of critical habitat 
designation. CERP and other Everglades restoration projects provide a 
framework for hydrologic restoration throughout the Everglades, 
transforming the area that has been adversely affected by decades of 
hydrologic alteration to conditions that closely resemble those to 
which the sparrow adapted before water management changes in the 20th 
century. The hydrologic management plans for the region are developed 
in conjunction with the Service, and are subject to consultation under 
section 7 of the Act under the jeopardy standard. Extensive Department 
of the Interior involvement and oversight of Everglades restoration 
projects further ensures consideration of threatened and endangered 
species.
    Inclusion of critical habitat also serves to educate landowners, 
State and local governments, and the public regarding the potential 
conservation value of the area. This may help focus, prioritize, and 
revitalize conservation efforts, such as restoration projects, or more 
extensive monitoring of populations. In addition, designation of 
critical habitat could inform State agencies and local governments 
about areas that could be conserved under State laws or local 
ordinances. As described above, because all units proposed for 
designation for the Cape Sable seaside sparrow consist of federally- 
and State-owned conservation lands that have existing management plans 
and the management agencies routinely conduct and participate in 
sparrow recovery, and management and monitoring activities, such 
benefits of inclusion are small.
    After carefully considering the existing conservation plans and 
strategies in place that address land management, resource management, 
and hydrologic management, we believe the additional regulatory benefit 
of inclusion, as well as the educational and informational benefit of 
inclusion is small.
(2) Benefits of Exclusion
    Possibly the greatest benefit of exclusion would be the removal of 
a potential constraint to the CERP and other Everglades restoration 
projects.
    Because of limited documentation of the conditions that occurred 
prior to hydrologic alteration, as well as the large number of 
interacting environmental and climatic factors that will influence the 
outcomes of any restoration project, there is a large degree of 
uncertainty that is inherent in planning Everglades restoration. In 
addition, there is little information available on where sparrows and 
sparrow habitat occurred prior to alteration of the Everglades. The 
sparrow was not discovered until 1918 on Cape Sable, which no longer 
supports the sparrow, most likely as a result of changes in habitat 
that resulted from the hurricane of 1935. The sparrow was not 
documented in the freshwater marl prairies where it occurs today until 
the mid-1900s, many years after hydrologic alteration had begun to 
shape the Everglades landscape.
    As Everglades restoration progresses, changes in hydrological 
conditions and vegetation toward those that occurred prior to 
hydrologic alteration are expected to occur. Consequently, changes in 
the extent and location of unfavorable and favorable habitat conditions 
for sparrows are also likely to occur. This expectation is at odds with 
evaluation of critical habitat under section 7 of the Act. Critical 
habitat designation establishes static boundaries on the landscape and

[[Page 62759]]

requires evaluation of proposed alterations of the habitat within the 
critical habitat boundaries. In certain CERP alternative scenarios, 
particularly those related to sparrow subpopulation A (proposed 
critical habitat units 1 and 2), consultation under section 7(a)(2) of 
the Act under the adverse modification standard may result in a 
determination of destruction or adverse modification of designated 
critical habitat for some CERP components and result in implementation 
of Reasonable and Prudent Alternatives that would reduce the benefits 
of restoration. Additionally, with the proposed critical habitat in 
place, planning for some proposed CERP components that bring water west 
of Shark River Slough is likely to be constrained to avoid an adverse 
modification determination during consultation. In essence, the 
requirement to prevent changes from occurring within designated 
critical habitat boundaries may prevent the change that is intended 
under CERP. This will likely have the result of limiting the overall 
environmental benefits of Everglades restoration, even though the best 
available scientific information states there are strong indications 
restoration will benefit the species (Sustainable Ecosystems Institute 
(SEI) 2003). Furthermore, these more favorable conditions may not 
require intensive hydrologic management for their maintenance. These 
issues are less of a concern in the eastern sparrow subpopulations, 
which currently support most of the sparrow population and the best 
available information suggests will support a large amount of sparrow 
habitat after CERP is complete.
    New science also suggests at least parts of sparrow subpopulation A 
may not have historically supported the habitats sparrows use today. 
Recent palynological (the study of live and fossil spores, pollen 
grains, and similar plant structures) studies within the current marl 
prairie habitats of subpopulation A have suggested that the area where 
subpopulation A currently occurs was historically a sawgrass marsh, and 
is currently a marl prairie as a result of anthropogenic hydrologic 
change (Bernhardt and Willard 2006, p. 4). This information raises 
questions about the sustainability of the habitats in this area, 
particularly as restoration progresses and hydrologic conditions change 
to those more similar to a restored condition. Evaluations of predicted 
hydrologic conditions within these areas under restoration indicate 
that wetter conditions are likely to occur, though the accuracy of 
predictions and degree of change expected is unclear.
    Based on the best available scientific information, we believe that 
restoration, when complete, will provide habitat that will be 
sufficient to support a secure sparrow population. An effort to review 
the best available science on the sparrow and the Everglades 
restoration found that there are strong indications the restoration 
will benefit the species, but identified some uncertainty during 
transition to CERP (SEI 2003). In light of this information, exclusion 
of proposed Units 1 and 2, the areas within sparrow subpopulation A, 
would be beneficial to achieving full restoration benefits under CERP 
and other Everglades restoration projects. Exclusion would allow 
conservation efforts to focus on activities intended to advance 
restoration of the broader Everglades ecosystem, which includes sparrow 
habitat, instead of focusing resources on regulatory compliance with 
critical habitat.
    Planning of CERP components is still under way, and only a few 
Everglades restoration components have been planned in detail. 
Consequently, the full extent to which exclusion of proposed Units 1 
and 2 may allow broader consideration of alternatives to achieve 
Everglades restoration objectives is unclear, but potentially 
significant. It is clear, however, that establishing a narrowly defined 
set of suitable conditions within a static boundary will limit 
consideration of alternatives. The Service received numerous comments 
from the public, the Miccosukee Tribe of Indians of Florida, and other 
resource management agencies expressing opposition and concern about 
the proposed designation because of potential conflicts with 
restoration. Because the process of planning and implementing CERP 
projects is a multi-agency, multi-stakeholder collaborative process, 
exclusion of proposed Units 1 and 2 would provide great benefit in 
terms of completing the collaborative process of Everglades restoration 
planning with a goal of achieving a broad variety of environmental 
benefits, including enhancement of listed species habitats and 
populations. Most importantly, the best available science suggests that 
there are strong indications that the sparrows will benefit from 
restoration.
    Exclusion of 75 ac (31 ha) of proposed critical habitat along the 
eastern edge of proposed unit 7, which corresponds to sparrow 
subpopulation F, would facilitate construction of a water management 
feature that is being implemented under the IOP to aid in maintaining 
sparrow habitat. This feature is intended to aid in restoring 
hydrological conditions along the eastern boundary of ENP, including 
overdrained portions of habitat within subpopulation F. The 
construction of the feature is currently under way, and the Service 
previously completed a conference opinion as part of the IOP on the 
impacts to proposed critical habitat and determined that it would not 
result in destruction or adverse modification. If these lands are 
included in the final designation, we would be required to conduct a 
formal consultation on the project under section 7 of the Act. This 
could be as straightforward as adopting the results of the conference 
opinion or having to re-initiate formal consultation. This re-
initiation would not only be on this specific project component, but 
the entire IOP since they are linked through the initial consultation. 
Therefore, any re-initiation of consultation for this project would 
cause a delay in the construction and operations of the feature which 
could delay benefits to the sparrow, its habitat, and the associated 
PCEs.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that conservation achieved through implementing 
management plans is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations that 
consider critical habitat and are conducted at varying points in time. 
Management plans commit resources consistently to habitat protection, 
but also to long-term proactive management of habitats for listed 
species and conservation benefit to other species, and generally ensure 
consistent consideration of listed species. Section 7 consultations 
involving critical habitat only commit Federal agencies to prevent 
destruction and adverse modification to critical habitat caused by a 
particular project. They do not commit agencies to conservation, long-
term management, or providing benefits to critical habitat or sparrow 
areas not affected by the proposed project. Thus, any management plan 
that considers enhancement, recovery, or restoration as the management 
standard, or which explicitly addresses the listed species, may provide 
more benefits for the conservation of this listed species than result 
from the prohibition of destruction or adverse modification of critical 
habitat alone.
    The objectives of CERP, as defined in the Water Resources 
Development Act (WRDA) 2000 (Pub L. 106-541) provide precisely this 
commitment to restoration. By restoring the ecosystem

[[Page 62760]]

over time, CERP is both intended and expected to benefit the various 
wildlife species that adapted to the ecosystem's historical conditions, 
including the sparrow.
    To date, many agencies, the Miccosukee Tribe of Indians of Florida, 
and other organizations have dedicated many years of effort toward 
developing the CERP, and many CERP features are now in the planning 
phase. The process of achieving restoration while addressing the 
variety of existing constraints and concerns of the many restoration 
partners, such as maintaining flood protection, maintaining adequate 
water supply for urban and agricultural areas, and maintaining high-
quality natural environments within ENP, is extremely challenging. In 
addition, the tools available for evaluating these constraints and 
concerns are primarily hydrologic models. These models provide good 
means to compare various alternative plans and provide good general 
predictions of conditions, but they also have some inherent uncertainty 
which limits their ability to make accurate predictions, especially at 
very small scales.
    We also recognize benefits of exclusion that apply to all proposed 
critical habitat units for the sparrow, but there are differences in 
the degree of benefit among the different areas. The benefits of 
exclusion are greatest in those areas where there is the greatest 
degree of uncertainty in the ultimate outcome of restoration and its 
effects on current sparrow habitat, and the greatest potential impacts 
in terms of the potential incompatibility with or limitation of the 
planned restoration of the ecosystem. These criteria describe proposed 
Units 1 and 2, the area that supports sparrow subpopulation A. Within 
this area, current hydrologic modeling indicates wetter conditions 
under restoration, and the historic condition of the habitat in this 
area is uncertain, with recent evidence suggesting that it may have 
supported wetter marsh vegetation instead of the marl prairie habitat 
type that currently occurs there. In addition, current hydrologic 
management suggests that the area may be sensitive to hydrologic 
management changes, and even relatively small increases in water 
deliveries or rainfall result in relatively large changes in 
hydroperiod and water depth. Pimm et al. (2007, p. 2) report that water 
levels have been higher than expected in this area in recent years, 
particularly in the southern portion of subpopulation A. These data 
indicate that exclusion of the area of subpopulation A would provide a 
large benefit in terms of reducing constraints to CERP.
    Exclusion of proposed Units 1 and 2 would allow restoration 
planners to work to maximize restoration benefits throughout the 
ecosystem which will also continue to provide for sparrow habitat needs 
in the larger Everglades landscape, instead of requiring maintenance of 
conditions within the proposed static unit boundaries. This would also 
provide for the maintenance of sparrow habitat through restoration of 
natural processes instead of through intensive hydrologic management 
that is quite difficult to administer. These improved opportunities to 
engage in collaborative and cooperative approaches to sparrow 
conservation and resource management instead of regulatory compliance 
are also beneficial. Exclusion of these areas does not remove the 
requirement for section 7 consultation with respect to CERP, including 
all Federal actions that affected this area occupied by the species, 
and the application of the jeopardy standard to these actions.
    In addition to removal of constraints to restoration, exclusion of 
proposed Units 1 and 2 from critical habitat also has a large benefit 
in terms of enhancing the Service's cooperative working relationship 
with resource management agencies, the Miccosukee Tribe of Indians of 
Florida, and other stakeholder groups involved in developing and 
implementing the CERP. These areas have been a focus of concern by the 
resource management agencies because of their apparent sensitivity to 
changes in hydrologic conditions. These areas have also been a primary 
focus of concern for the Miccosukee Tribe of Indians of Florida. The 
areas are proximate to Tribal lands and critical habitat constraints in 
these areas may have the greatest effect on Tribal resources, though 
the Tribe has expressed concern about other areas as well.
    It is our determination therefore that the benefits of exclusion of 
proposed Units 1 and 2 are significant and outweigh the benefits of 
their inclusion. This exclusion will provide greater overall 
opportunities to achieve conservation for sparrows, as well as to 
achieve restoration of the Everglades. This benefit of exclusion 
outweighs the small added regulatory and educational benefits of 
including critical habitat units in this area. We have therefore 
excluded from the proposed designation areas that support sparrow 
subpopulation A. These areas were included in the proposed rule (71 FR 
63980) and identified as Units 1 and 2.
    It is also our determination therefore that the benefits of 
excluding the 75 ac (31 ha) of proposed critical habitat along the 
eastern edge of proposed Unit 7 are significant and outweigh the 
benefits of inclusion. The benefits of inclusion result from the 
protection of 75 ac (31 ha) of habitat (approximately 1.5 percent of 
the proposed unit) through a possible re-initiation of the IOP 
consultation. Exclusion will facilitate construction of a water 
management feature that will aid in maintaining and benefiting PCEs 
within the remainder of the unit by minimizing delays through not 
having to re-initiate consultation on the IOP opinion. This feature 
will also improve hydrologic conditions in the Rocky Glades and Taylor 
Slough areas adjacent to the unit, resulting in reduced threats from 
fires and exotic vegetation encroachment. We have therefore excluded 
from the proposed designation the 75 ac (31 ha) area along the eastern 
edge of proposed Unit 7. This area was included in the proposed rule 
(71 FR 63980).
    In the other proposed areas, we have determined not to make any 
exclusions.
(4) Exclusion Will Not Result in Extinction
    The entire known current range of the Cape Sable seaside sparrow 
lies within Federal and State lands managed for conservation purposes, 
and over 90 percent of the sparrow population occurs on lands managed 
by NPS. Existing management plans and agreements provide for protection 
and management of sparrows and sparrow habitat on all lands on which 
they occur. The area excluded has supported less than four percent of 
the sparrow population over the past five years, and it is completely 
within the boundary of lands managed by NPS. All actions that may 
affect sparrows or sparrow habitat in the excluded areas will require 
consultation under section 7 of the Act under the jeopardy standard, 
and no Federal actions will be permitted which may jeopardize the 
continued existence of the species, regardless of whether critical 
habitat is designated. Further, the Service and the Department of the 
Interior are involved at both overarching policy and technical levels 
in formulating future hydrological management plans associated with the 
CERP. The Department of the Interior also has a key oversight role in 
Everglades restoration. This involvement will further ensure that 
proposed future plans for hydrologic management will not result in 
extinction of the species in the absence of the designation of these 
two proposed units. As a result of the combination of

[[Page 62761]]

the existing management plans, the fact that they fall within NPS 
boundaries, the requirement for section 7 consultation under the 
jeopardy standard for any action that may affect sparrows within the 
entire excluded area, we find that the exclusion of proposed Units 1 
and 2 (the area that supports sparrow subpopulation A), and 75 ac (31 
ha) of Unit 7 (sparrow subpopulation F) will not result in the 
extinction of the Cape Sable seaside sparrow. Accordingly, we exercise 
discretion under section 4(b)(2) of the Act to exclude areas which meet 
the definition of critical habitat in the area of sparrow subpopulation 
A, which were identified in the proposed rule as Units 1 and 2, and a 
portion of sparrow subpopulation F, which was identified in the 
proposed rule as Unit 7 from designation as critical habitat.

Editorial Changes

    This final rule incorporates a change to the common and scientific 
names of the Cape Sable seaside sparrow used in the current critical 
habitat entry for this species at 50 CFR 17.95(b). The current critical 
habitat entry, established by an August 11, 1977, final rule (42 FR 
40685), uses the common name ``Cape Sable sparrow'' and the scientific 
name ``Ammospiza maritima mirabilis.'' Both names are outdated. The new 
common name is ``Cape Sable seaside sparrow'' and the new scientific 
name is ``Ammodramus maritimus mirabilis.'' This change will bring the 
common and scientific names into agreement with those used by the 
scientific community, as well as names used for this species in the 
table at 50 CFR 17.11(h).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise legal and policy issues. Based on 
our economic analysis, the estimate of total potential future costs 
associated with conservation efforts for the sparrows in areas 
designated is $32.3 million (undiscounted). The present value of these 
impacts is $26.9 million using a discounted rate of three percent, or 
$22.2 million using a discount rate of seven percent. The annualized 
value of these impacts is $1.8 million to $6.70 million, using a 
discount rate of three percent, or $2.1 million using a discount rate 
of seven percent. Therefore, we do not believe that the designation of 
critical habitat for the Cape Sable seaside sparrow would result in an 
annual effect on the economy of $100 million or more or affect the 
economy in a material way. Due to the timeline for publication in the 
Federal Register, the Office of Management and Budget (OMB) has not 
formally reviewed the rule or accompanying economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Because the determination of critical habitat is 
a statutory requirement under the ACT, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

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

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (such as 
housing development, grazing, oil and gas production, timber 
harvesting). We apply the ``substantial number'' test individually to 
each industry to determine if certification is appropriate. However, 
the SBREFA does not explicitly define ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in an area. In some circumstances, 
especially with critical habitat designations of limited extent, we may 
aggregate across all industries and consider whether the total number 
of small entities affected is substantial. In estimating the number of 
small entities potentially affected, we also consider whether their 
activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may

[[Page 62762]]

affect the Cape Sable seaside sparrow. Federal agencies also must 
consult with us if their activities may affect critical habitat. 
Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities.
    In our economic analysis of the critical habitat designation, we 
evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the Cape 
Sable seaside sparrow and proposed designation of its critical habitat. 
This analysis estimated prospective economic impacts due to the 
implementation of conservation efforts for the species, such water 
management, species management, fire management, and administrative 
costs. We determined from our analysis that the economic impacts of 
conservation efforts for the sparrow are expected to be borne primarily 
by State and Federal agencies, including the Service, USACE, NPS, and 
SFWMD. None of these agencies are defined as small entities by the SBA. 
Consequently, the designation of critical habitat for the sparrow is 
not expected to impact small entities.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the State and 
Federal agencies that may be required to consult with us each year 
regarding their project's impact on the Cape Sable seaside sparrow and 
its habitat. First, if we conclude, in a biological opinion, that a 
proposed action is likely to jeopardize the continued existence of a 
species or adversely modify its critical habitat, we can offer 
``reasonable and prudent alternatives.'' Reasonable and prudent 
alternatives are alternative actions that can be implemented in a 
manner consistent with the scope of the Federal agency's legal 
authority and jurisdiction, that are economically and technologically 
feasible, and that would avoid jeopardizing the continued existence of 
listed species or result in adverse modification of critical habitat. A 
Federal agency and an applicant may elect to implement a reasonable and 
prudent alternative associated with a biological opinion that has found 
jeopardy or adverse modification of critical habitat. An agency or 
applicant could alternatively choose to seek an exemption from the 
requirements of the Act or proceed without implementing the reasonable 
and prudent alternative. However, unless an exemption were obtained, 
the Federal agency or applicant would be at risk of violating section 
7(a)(2) of the Act if it chose to proceed without implementing the 
reasonable and prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the final 
critical habitat units, 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 USACE under section 404 of the Clean Water Act;
    (2) Regulation of water flows, water levels, water supply to urban 
and agricultural users, and flood protection activities implemented or 
licensed by Federal agencies;
    (3) Regulation of access, recreation, and conduct of land 
management activities such as prescribed burning and vegetation 
management by NPS;
    (4) Construction and maintenance of roads, buildings and 
facilities, and hydrologic infrastructure such as pump stations, 
canals, and gauging stations;
    (5) Hazard mitigation and post-disaster repairs funded by the FEMA; 
and
    (6) Activities funded by the EPA, U.S. Department of Energy, or any 
other Federal agency.
    It is likely that a project sponsor and action agency could modify 
a project or take measures to protect the sparrow. The kinds of actions 
that may be included if future reasonable and prudent alternatives 
become necessary include hydrologic management within certain 
constraints, conducting reduced or limited projects, and regular 
monitoring. These are based on our understanding of the needs of the 
species and the threats it faces, as described in the recovery plan and 
proposed critical habitat designation. These measures are not likely to 
result in a significant economic impact to project proponents.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
We have determined, for the above reasons and based on currently 
available information, that it is not likely to affect a substantial 
number of small entities. Federal involvement, and thus section 7 
consultations, would be limited to a subset of the area designated. The 
most likely Federal involvement could include USACE permits, operations 
and maintenance of USACE hydrologic infrastructure, development and 
maintenance of Federal facilities, and development and implementation 
of NPS management plans. Therefore, we are certifying that this final 
designation of critical habitat for the Cape Sable seaside sparrow will 
not have a significant economic impact on a substantial number of small 
entitites. A regulatory flexibility analysis is not required.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 
(Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. Executive Order 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. This final rule to designated critical habitat for the 
Cape Sable seaside sparrow is not expected to significantly affect 
energy supplies, distribution, or use (See Appendix C of the final 
Economic Analysis for further discussion). Therefore, this action is 
not a significant energy action, and no Statement of Energy Effects is 
required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:

[[Page 62763]]

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

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating 84,865 ac (34,344 ha) within State- and Federally-owned 
conservation lands in southern Florida as critical habitat for the Cape 
Sable seaside sparrow in a takings implication assessment. The takings 
implications assessment concludes that this final designation of 
critical habitat does not pose significant takings implications for 
lands within or affected by the designation.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with the Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this final critical habitat designation 
with appropriate State resource agencies in Florida. The designation of 
critical habitat in areas currently occupied by the Cape Sable seaside 
sparrow may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments in that the areas that 
contain the features essential to the conservation of the species are 
more clearly defined, and the PCEs of the habitat necessary to the 
conservation of the species are specifically identified. While making 
this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. This final rule 
uses standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in understanding the habitat 
needs of the Cape Sable seaside sparrow.

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

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

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Jurisdiction of the Tenth 
Federal Circuit, we do not need to prepare environmental analyses as 
defined by NEPA in connection with designating critical habitat under 
the Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. Secretarial Order 3206: 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act.
    The purpose of Secretarial Order 3206 (Secretarial Order) is to 
``clarif(y) the responsibilities of the component

[[Page 62764]]

agencies, bureaus, and offices of the Department of the Interior and 
the Department of Commerce, when actions taken under authority of the 
Act and associated implementing regulations affect, or may affect, 
Indian lands, Tribal trust resources, or the exercise of American 
Indian tribal rights.'' If there is potential that a Tribal activity 
could cause either direct or incidental take of a species proposed for 
listing under the Act, then meaningful government-to-government 
consultation will occur to try to harmonize the Federal trust 
responsibility to Tribes and Tribal sovereignty with our statutory 
responsibilities under the Act. The Secretarial Order also requires us 
to consult with Tribes if the designation of an area as critical 
habitat might impact tribal trust resources, Tribally owned fee lands, 
or the exercise of Tribal rights.
    While the critical habitat designation does not include any lands 
under Tribal ownership, the Miccosukee Tribe of Indians of Florida has 
perpetual rights to portions of ENP and Water Conservation Area 3A 
which they utilize for traditional purposes. We have excluded lands 
from the final critical habitat designation pursuant to section 4(b)(2) 
of the Act which we believe would have the greatest impact on Tribal 
resources. We recognize the Tribe's concerns that the critical habitat 
designation, even with the exclusions, may result in indirect impacts 
to Tribal resources on these lands. We are committed to continuing to 
work with the Tribe collaboratively to address future issues related to 
or affected by designation of critical habitat.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the U.S. Fish and Wildlife Service, South 
Florida Ecological Services Office (see ADDRESSES).

Author(s)

    The primary authors of this package are the South Florida 
Ecological Services Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.95(b), revise the entry for ``Cape Sable Sparrow 
(Ammospiza maritima mirabilis)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Cape Sable Seaside Sparrow (Ammodramus maritimus mirabilis)
    (1) Critical habitat units are depicted for Miami-Dade County, 
Florida, on the map at paragraph (10) of this entry.
    (2) The primary constituent elements of critical habitat for the 
Cape Sable seaside sparrow are the habitat components that provide:
    (i) Calcitic marl soils characteristic of the short-hydroperiod 
freshwater marl prairies of the southern Everglades;
    (ii) Herbaceous vegetation that includes greater than 15 percent 
combined cover of live and standing dead vegetation of one or more of 
the following species (when measured across an area of greater than 100 
ft<SUP>2</SUP> (9.3 m<SUP>2</SUP>)): Muhly grass (Muhlenbergia 
filipes), Florida little bluestem (Schizachyrium rhizomatum), black-
topped sedge (Schoenus nigricans), and cordgrass (Spartina bakeri);
    (iii) Contiguous open habitat (Sparrow subpopulations require 
large, expansive, contiguous habitat patches with few or sparse woody 
shrubs or trees.); and
    (iv) Hydrologic regime such that the water depth, as measured from 
the water surface down to the soil surface, does not exceed 7.9 inches 
(20 cm) for more than 30 days during the period from March 15 to June 
30 at a frequency of more than 2 out of every 10 years.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, roads, and other paved areas) and the 
land on which they are located on the effective date of this rule and 
not containing one or more of the primary constituent elements.
    (4) Critical Habitat Map Units. Data layers defining map units were 
created using a GIS and adding activity areas around all Cape Sable 
seaside sparrow point count survey coordinates provided by the National 
Park Service at which sparrows have been recorded since 1981. These 
activity areas were merged to form one large polygon, and the 
boundaries were further refined by delineating suitable sparrow habitat 
and excluding unsuitable habitat along the borders based on 
interpretation of 2004 Florida Digital Orthographic Quarter Quads and 
Landsat false-color satellite imagery (a mosaic of color-balanced 
Landsat 7 Enhanced Thematic Mapper scenes from December 2003 to April 
2004 using bands 5, 4, and 3). The projection represented in all 
mapping of units is Universal Transverse Mercator (UTM) Zone 17 North, 
NAD 83 Datum.
    (5) Unit 1--Subpopulation B.
    (i) General description: Unit 1--subpopulation B consists of 39,053 
ac (15,804 ha) of marl prairie habitat that lies within Everglades 
National Park in southwestern Miami-Dade County.
    (ii) Coordinates: From the Long Pine Key USGS 1:24,000 quadrangle 
map, Florida, land and water bounded by the following UTM Zone 17 NAD 
83 coordinates (E, N): 526917, 2808910; 527089, 2808114; 527308, 
2808109; 528319, 2808057; 528750, 2807801; 528903, 2807333; 529236, 
2806425; 529691, 2806032; 530946, 2805892; 531630, 2805875; 532441, 
2805501; 532453, 2804873; 531446, 2803970; 530870, 2803902; 530241, 
2803890; 529854, 2803763; 529386, 2803611; 529182, 2803097; 529144, 
2802662; 529296, 2802167; 529728, 2801965; 530138, 2801955; 530767, 
2801940; 531394, 2801843; 531909, 2801666; 532314, 2801438; 532312, 
2801384; 532262, 2800430; 531975, 2799918; 531693, 2799543; 531425, 
2798649; 531410, 2798077; 531094, 2797430; 530664, 2796649; 530325, 
2796193; 529846, 2795632; 529518, 2795640; 528557, 2795500; 528065, 
2795485; 527787, 2795300; 527450, 2794981; 527006, 2794692; 526591, 
2794511; 526017, 2794525; 525180, 2794982; 524802, 2795155; 523987, 
2795393; 522696, 2796271; 522130, 2796639; 521206, 2796853; 520557, 
2797169; 520072, 2797481; 519245, 2798319; 518416, 2799104; 517970, 
2799879; 517793, 2800456; 517534, 2801062; 517266, 2801260; 516889, 
2801515; 516474, 2802425; 516492, 2803162; 516515, 2804116; 516430, 
2805100; 516586, 2805888; 517094, 2806530; 517680, 2807007; 517877, 
2807248; 518159, 2807596; 518527, 2808078; 519049, 2808174; 520226, 
2808227; 520856, 2808239; 521482, 2808115; 521938, 2807749; 522335, 
2807194; 522567, 2806642; 522754, 2806447; 523349, 2806159; 523785, 
2806121; 524093, 2806387; 524429, 2806706; 524846, 2806996; 525021, 
2807428; 525305, 2807858; 525560, 2808206; 525406, 2808619; 525663, 
2809050; 526296, 2809225; 526917, 2808910.
    (6) Unit 2--Subpopulation C.
    (i) General description: Unit 2--subpopulation C consists of 7,951 
ac

[[Page 62765]]

(3,218 ha) of marl prairie habitat that lies within Everglades National 
Park in western Miami-Dade County.
    (ii) Coordinates: From the Long Pine Key USGS 1:24,000 quadrangle 
map, Florida, land and water bounded by the following UTM Zone 17 NAD 
83 coordinates (E, N): 534909, 2812258; 535011, 2812832; 535192, 
2813089; 535650, 2813200; 536001, 2813209; 536491, 2813232; 536722, 
2813349; 536766, 2813714; 536778, 2814185; 536928, 2814601; 537297, 
2814644; 537496, 2814936; 537501, 2815128; 537809, 2815540; 538341, 
2815806; 538763, 2815900; 539200, 2815890; 539689, 2815825; 540446, 
2815981; 540831, 2815972; 541166, 2816117; 541174, 2811281; 541550, 
2811272; 541579, 2810820; 541603, 2810365; 541542, 2810035; 541376, 
2809690; 541211, 2809380; 541133, 2809067; 541108, 2808754; 541296, 
2808574; 541238, 2808331; 541146, 2808159; 540844, 2807992; 540792, 
2807993; 540634, 2807979; 540542, 2807824; 540538, 2807632; 540309, 
2807586; 539756, 2807879; 539132, 2808138; 538618, 2808605; 538734, 
2809056; 538901, 2809401; 539067, 2809781; 538637, 2810071; 538068, 
2810417; 537342, 2810784; 536684, 2811114; 536178, 2811179; 535884, 
2811326; 535598, 2811787; 535253, 2811988; 534909, 2812258;
    (7) Unit 3--Subpopulation D.
    (i) General description: Unit 3--subpopulation D consists of 10,700 
ac (4,330 ha) of marl prairie habitat that lies within the Southern 
Glades Wildlife and Environmental Area and Everglades National Park, in 
southern Miami-Dade County, as depicted on Map 1.
    (ii) Coordinates: From the Royal Palm Ranger Station SE USGS 
1:24,000 quadrangle map, Florida, land and water bounded by the 
following UTM Zone 17 NAD 83 coordinates (E, N): 546623, 2805929; 
547722, 2805064; 547780, 2804591; 548184, 2804651; 548884, 2804634; 
549599, 2804511; 550164, 2804008; 550253, 2803378; 549944, 2802896; 
549549, 2802504; 549138, 2802148; 549024, 2801801; 549035, 2801539; 
549039, 2800997; 549140, 2800122; 549122, 2799389; 548970, 2798904; 
548373, 2798813; 547483, 2798958; 546821, 2799061; 545890, 2798962; 
545532, 2798621; 545114, 2798003; 544479, 2797791; 543887, 2797946; 
543689, 2798405; 543750, 2799468; 543726, 2799940; 543689, 2800535; 
543343, 2800736; 542783, 2800715; 542331, 2800865; 541727, 2801212; 
541556, 2801356; 541478, 2801759; 541479, 2802493; 541666, 2802977; 
542234, 2803313; 542611, 2803670; 542775, 2803928; 543425, 2804034; 
544003, 2804037; 544423, 2804027; 544605, 2804337; 544618, 2804843; 
544595, 2805350; 544742, 2805626; 545170, 2805930; 545889, 2805999; 
546623, 2805929.
    (8) Unit 4--Subpopulation E.
    (i) General description: Unit 4--subpopulation E consists of 22,278 
ac (9,016 ha) of marl prairie habitat that lies within Everglades 
National Park in central Miami-Dade County.
    (ii) Coordinates: From the Pahayokee Lookout Tower USGS 1:24,000 
quadrangle map, Florida, land and water bounded by the following UTM 
Zone 17 NAD 83 coordinates (E, N): 521841, 2816533; 525940, 2820239; 
525968, 2820266; 526694, 2820741; 527084, 2820978; 527388, 2821080; 
527374, 2821600; 527360, 2822148; 527457, 2822748; 527735, 2822906; 
528070, 2823117; 528417, 2823848; 529028, 2824134; 529238, 2824841; 
529250, 2825333; 529197, 2826539; 529735, 2827183; 530668, 2827160; 
531953, 2826965; 532774, 2826835; 533193, 2826031; 533510, 2825530; 
533777, 2825195; 534094, 2824694; 533885, 2824015; 533544, 2823558; 
533230, 2823045; 533211, 2822307; 533415, 2821672; 533623, 2821174; 
534292, 2820473; 534774, 2819968; 534844, 2819501; 535075, 2818811; 
535283, 2818368; 534879, 2817556; 534463, 2817375; 533609, 2817259; 
531442, 2817339; 530965, 2816913; 530377, 2816462; 529199, 2816545; 
528179, 2816378; 527947, 2815864; 527689, 2815432; 527085, 2815447; 
526289, 2815439; 525570, 2815237; 525284, 2814779; 525270, 2814177; 
525195, 2813357; 525067, 2812648; 523941, 2812621; 523173, 2812640; 
522612, 2813283; 521991, 2813682; 521696, 2813963; 521545, 2814542; 
521562, 2815253; 521603, 2815772; 521841, 2816533.
    (9) Unit 5--Subpopulation F.
    (i) General description: Unit 5--subpopulation F consists of 4,883 
ac (1,976 ha) of marl prairie habitat that lies along the eastern 
boundary of Everglades National Park in central Miami-Dade County.
    (ii) Coordinates: From the Grossman Hammock USGS 1:24,000 
quadrangle map, Florida, land and water bounded by the following UTM 
Zone 17 NAD 83 coordinates (E, N): 541235, 2829890; 541864, 2829822; 
542679, 2829488; 542727, 2827880; 542685, 2826187; 542686, 2825087; 
542692, 2823991; 542685, 2823355; 542348, 2823192; 541263, 2823219; 
540481, 2823430; 540440, 2823903; 539993, 2824245; 539241, 2824264; 
538593, 2824996; 538791, 2825899; 539239, 2826324; 539702, 2827361; 
539928, 2828001; 540356, 2829021; 540489, 2829454; 540691, 2829833; 
541235, 2829890.
    (10) Note: Map of Designated Units follows:
BILLING CODE 4310-55-P

[[Page 62766]]

[GRAPHIC] [TIFF OMITTED] TR06NO07.000

* * * * *

    Dated: October, 24, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-5460 Filed 11-5-07; 8:45 am]
BILLING CODE 4310-55-C