62736 Federal Register / Vol. 72, No. 214 / Tuesday, November 6, 2007 / Rules and Regulations 

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. 

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 

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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 patchtype 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 welljustified 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 sectiontownship-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 

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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 

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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-ofways 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 

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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 nonbreeding 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 nonbreeding 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 

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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. 

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(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 

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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 coextensively 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 decisionmaking 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 courtordered 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. 

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(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 ‘‘coextensive’’ 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 

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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 treeislands. 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 treeislands 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 rerouting 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 

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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. 

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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 

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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 ft2 (9.3 

m2)): Muhly grass (Muhlenbergia 

filipes), Florida little bluestem 

(Schizachyrium rhizomatum), blacktopped 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 lowgrowing 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 

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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 Multispecies 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 deepwater slough communities) were 

excluded from the unit. The resulting 

boundary of each unit encompassed the 

core areas of habitat that have been 

occupied by sparrows since 1981. This 

approach relies on the results of 

multiple years of surveys and 

consequently provides a robust 

assessment of sparrow habitat. 

We believe the method we have used 

to delineate critical habitat encapsulates 

the 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 

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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] 

Critical habitat unit Federal acres 

(hectares) 

State acres 

(hectares) 

Total acres 

(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 longhydroperiod Eleocharis-dominated wet 

prairie and mangrove zone just inland of 

Florida Bay, on the west by the sawgrass 

marshes and deepwater slough 

communities of Shark River Slough, on 

the north by the pine rockland 

vegetation communities that occur 

within ENP on Long Pine Key, and on 

the east by the sawgrass marshes and 

deepwater slough vegetation community 

of Taylor Slough. There is a continuous 

elevational gradient across the site, from 

the high elevations of the pine 

rocklands north of the unit down to the 

mangroves in the south. The area is 

bisected by the Main Park Road, which 

serves as the primary public access 

route from Homestead to Florida Bay. It 

is also bisected by the Old Ingraham 

Highway, which is an abandoned and 

partially restored roadway that 

historically provided access from 

Homestead to Florida Bay. Much of the 

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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 

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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 longhydroperiod Eleocharis vegetation and 

mangroves that flank Florida Bay, on the 

west by the sawgrass marshes and deepwater 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. 

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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 humancaused 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 

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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 

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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 

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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 

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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 

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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 multiagency, 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 

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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 

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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 

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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 postdisaster 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: 

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(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 nonFederal 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 Federallyowned 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 

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62764 Federal Register / Vol. 72, No. 214 / Tuesday, November 6, 2007 / Rules and Regulations 

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-togovernment 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 

■ 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] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

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

‘‘Cape Sable Sparrow (Ammospiza 

maritima mirabilis)’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(b) Birds. 

* * * * * 

Cape Sable Seaside Sparrow 

(Ammodramus maritimus mirabilis) 

(1) Critical habitat units are depicted 

for Miami-Dade 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 ft2 (9.3 

m2)): Muhly grass (Muhlenbergia 

filipes), Florida little bluestem 

(Schizachyrium rhizomatum), blacktopped 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 

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

mstockstill on PROD1PC66 with RULES2

62766 Federal Register / Vol. 72, No. 214 / Tuesday, November 6, 2007 / Rules and Regulations 

* * * * * 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 


mstockstill on PROD1PC66 with RULES2ER06NO07.000</GPH>