[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Rules and Regulations]
[Pages 62816-62841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23206]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Revised Designation of 
Critical Habitat for the Wintering Population of the Piping Plover 
(Charadrius melodus) in North Carolina; Final Rule

Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0041; 92210-1117-0000-B4]
RIN 1018-AU48


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Wintering Population of the 
Piping Plover (Charadrius melodus) in North Carolina

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
revised critical habitat for the wintering population of the piping 
plover (Charadrius melodus) in North Carolina under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 2,043 
acres (ac) (827 hectares (ha)), in Dare and Hyde Counties, North 
Carolina, fall within the boundaries of the revised critical habitat 
designation.

DATES: This final rule becomes effective on November 20, 2008.

ADDRESSES: This final rule and final economic analysis are available on 
the Internet at http://www.regulations.gov and at http://www.fws.gov/raleigh/es_piplch.html. Supporting documentation we used in preparing 
this final rule is available for public inspection, by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Raleigh Ecological Services Field Office, 551-F Pylon Drive, Raleigh, 
NC 27606; telephone 919-856-4520; facsimile 919-856-4556.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, 
Raleigh Ecological Services Field Office (see ADDRESSES section). If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of revised critical habitat in this 
final rule. For more information on the biology and ecology of the 
wintering population of the piping plover, refer to the final listing 
rule published in the Federal Register on December 11, 1985 (50 FR 
50726). For information on piping plover wintering critical habitat, 
refer to the final rule designating critical habitat for the wintering 
populations of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038), the proposed rule to designate revised 
critical habitat for the wintering population of the piping plover in 
North Carolina published in the Federal Register on June 12, 2006 (71 
FR 33703), and the revised proposed rule published in the Federal 
Register on May 15, 2008 (73 FR 28084). Information on the associated 
draft economic analysis and draft environmental assessment for the 
proposed rule to designate revised critical habitat was published in 
the Federal Register on May 31, 2007 (72 FR 30326) and revised on May 
15, 2008 (73 FR 28084).

Previous Federal Actions

    We first designated critical habitat for the wintering population 
of the piping plover in 142 areas along the coasts of North Carolina, 
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and 
Texas on July 10, 2001 (66 FR 36038). In February 2003, two North 
Carolina counties (Dare and Hyde) and a beach access group (Cape 
Hatteras Access Preservation Alliance) filed a lawsuit challenging our 
designation of four units of critical habitat on the Cape Hatteras 
National Seashore (CAHA), North Carolina (Units NC-1, NC-2, NC-4, and 
NC-5). In 2004, the U.S. District Court for the District of Columbia 
remanded to us the 2001 designation of the four units (Cape Hatteras 
Access Preservation Alliance v. U.S. Department of the Interior, 344 F. 
Supp 2d 108). In response to the court's order, on June 12, 2006, we 
published a proposed rule to designate critical habitat for the 
wintering population of the piping plover in North Carolina (71 FR 
33703). That proposed rule described four coastal areas (units renamed 
NC-1, NC-2, NC-4, and NC-5), totaling approximately 1,827 acres (ac) 
(739 hectares (ha)) entirely within CAHA. On May 31, 2007, we announced 
in the Federal Register the availability of a draft economic analysis 
and environmental assessment for the June 12, 2006, proposed rule (72 
FR 30326). On May 15, 2008, we announced a revision to the proposed 
critical habitat unit NC-1, to include the islands DR-005-05 and DR-
005-06 (Dare County), owned by the State of North Carolina, and 
portions of Pea Island National Wildlife Refuge (PINWR; Dare County), 
and to proposed critical habitat unit NC-4, to include island DR-009-
03/04 (Dare and Hyde Counties), owned by the State of North Carolina 
(73 FR 28084). The revised critical habitat units for the proposed rule 
total approximately 2,043 ac (827 ha) in Dare and Hyde Counties.
    On October 18, 2007, an action was filed against the National Park 
Service (NPS) in the United States District Court for the Eastern 
District of North Carolina, alleging that the management of off-road 
vehicles at CAHA, which includes the proposed critical habitat areas, 
was inadequate (Defenders of Wildlife et al. v. National Park Service 
et al., No 2:07-CV-45-BO (E.D.N.C.)). On April 16, 2008, all parties 
filed with the court a proposed Consent Decree. The Consent Decree, 
approved April 30, 2008, continues management described in the NPS's 
Interim Protected Species Management Strategy (hereafter referred to as 
Interim Strategy), but also requires pre-nesting areas for piping 
plover as well as other shorebirds to be closed to vehicles and 
pedestrians at historic nesting areas at Bodie Island spit, Cape Point, 
Hatteras spit, and the north and south ends of Ocracoke Island. It also 
includes expanded buffers around breeding sites with nests and chicks 
that vary depending on the sensitivity or vulnerability of the 
particular species. These closures are a result of agency actions 
affecting the species and reports on species protected by the Migratory 
Bird Treaty Act (16 U.S.C. 703-712) and would occur regardless of our 
proposed critical habitat designation.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the piping plover during three 
comment periods. The first comment period, associated with the 
publication of the proposed rule (71 FR 33703), opened on June 12, 
2006, and closed on August 11, 2006. We also requested comments on the 
proposed critical habitat designation, associated draft economic 
analysis, and draft environmental assessment during a second comment 
period which opened May 31, 2007, and closed on July 30, 2007 (72 FR 
30326). During this comment period, we held a public hearing on June 
20, 2007. Finally, we requested comments on the revised proposed 
critical habitat designation, revised associated draft economic 
analysis, and revised draft environmental assessment during a third 
comment period which opened May 15, 2008, and closed June 16, 2008 (73 
FR 28084). During these three comment periods we also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule

[[Page 62817]]

and/or draft economic analysis and draft environmental assessment.
    During the first comment period, we received 84 comments directly 
addressing the proposed critical habitat designation. During the second 
comment period, we received 1,441 comments directly addressing the 
proposed critical habitat designation and the draft economic analysis 
and environmental assessment. Of the comments received during the 
second comment period, approximately 800 were submitted as two 
different form letters from individuals or organizations. During the 
June 20, 2007, public hearing, 36 individuals or organizations made 
comments on the designation of critical habitat for the wintering 
piping plover. During the third comment period, we received 489 
comments directly addressing the proposed critical habitat designation. 
Comments received were grouped into nine general issues specifically 
relating to the proposed critical habitat designation for the wintering 
piping plover, 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 solicited expert opinions from eight knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of the 
eight peer reviewers. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer stated that the data used in the 
2006 proposed rule to evaluate the distribution and abundance of piping 
plover along the Outer Banks was satisfactory to determine key 
locations where wintering piping plover had been observed, but 
expressed concern that such data were generally not the results of 
thorough and complete censuses of all beach, island, and intertidal 
habitats. The reviewer also expressed concern for the absence of 
reference to studies, such as Nicholls and Baldassarre 1990 [Nicholls, 
J.L., and G.A. Baldassarre. 1990. Winter distribution of piping plovers 
along the Atlantic and Gulf coasts of the United States. 102:400-412 
and Nicholls, J.L., and G.A. Baldassarre. 1990. Habitat associations of 
piping plover wintering in the United States. Wilson Bulletin 102:581-
590] and Dinsmore et al. 1998 [Dinsmore, S.J., J.A. Collazo, and J.R. 
Walters. 1998. Seasonal numbers and distribution of shorebirds on North 
Carolina's Outer Banks. Wilson Bulletin 110:171-181] that provide 
information on the distribution and abundance of piping plovers.
    Our Response: We reviewed and cited the two studies by J.L. 
Nicholls and G.A. Baldassarre in our July 10, 2001, designation of 
critical habitat for the wintering population of the piping plover (66 
FR 36038). Although we did not specifically cite the Dinsmore et al. 
1998 study in the June 12, 2006, proposed rule or May 15, 2008, revised 
proposed rule, we did review and cite more recent data that incorporate 
the data of Dinsmore and others on the abundance and distribution of 
piping plovers. The data reviewed and referenced in this rule are cited 
as unpublished and were extracted from the North Carolina Wildlife 
Resources Commission's (NCWRC) statewide database on the occurrence of 
piping plovers. Because we were reevaluating only the issues addressed 
by the courts and only for the four units (Units NC-1, NC-2, NC-4, and 
NC-5) vacated and remanded back to us (Cape Hatteras Access 
Preservation Alliance v. U.S. Department of the Interior, 344 F. Supp 
2d 108), we did not repeat the analysis on the abundance or 
distribution of piping plovers in these four areas to the extent that 
they were analyzed in the July 10, 2001, rule.
    (2) Comment: Several peer reviewers noted that certain activities 
that may adversely affect piping plover habitat that were known to be 
occurring within the proposed critical habitat areas, such artificial 
dune building and the destruction of wrack (marine vegetation) from 
recreational activities, were not specifically identified in the June 
12, 2006, proposed rule.
    Our Response: In the June 12, 2006, proposed rule (71 FR 33703) and 
May 15, 2008, revised proposed rule (73 FR 28084), we referenced the 
July 10, 2001, rule (66 FR 36038), which stated the activities that may 
destroy or adversely modify critical habitat by altering the primary 
constituent elements (PCEs) to an extent that the value of critical 
habitat for both the survival and recovery of the piping plover would 
be appreciably reduced. While we did not specifically address 
artificial dune building or the destruction of wrack as examples that 
may destroy the piping plover's habitat, we did cite ``Beach 
nourishment, cleaning, and stabilization (e.g., construction and 
maintenance of jetties and groins, planting of vegetation, and 
placement of dune fences)'' and ``Certain types and levels of 
recreational activities, such as vehicular activity that impact the 
substrate, resulting in reduced prey or disturbance to the species.'' 
We believe these actions are representative in their effects to the 
piping plover's habitat of artificial dune building and the destruction 
of wrack from recreational activities.
    (3) Comment: Several peer reviewers noted that areas, such as 
portions of Pea Island National Wildlife Refuge (PINWR) and several 
sound-side and inlet channel islands, that provide the physical and 
biological features necessary for the survival and recovery of the 
piping plover were absent from the June 12, 2006, proposed rule. 
Several of the peer reviewers provided data or referenced studies that 
supported their assertion of the importance of these sites. They also 
stated that the management plans identified in support of our exclusion 
of these sites in the June 12, 2006, proposed rule (i.e., PINWR's 
Comprehensive Conservation Plan and the NCWRC's Wildlife Action Plan) 
were insufficient to protect habitats for the wintering population of 
the piping plover.
    Our Response: In our May 15, 2008, revised proposed rule (73 FR 
28084), we modified two of the four units (Unit NC-1, Oregon Inlet and 
NC-4, Hatteras Inlet) described in the June 12, 2006, rule (71 FR 
33703). In the June 12, 2006, rule, we had determined that the islands 
DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare and Hyde 
Counties) owned by the State of North Carolina, and about 137 ac (96 
ha) of PINWR (Dare County) did not meet the definition of critical 
habitat under section 3(5)(A) of the Act. However, we reconsidered our 
preliminary analysis of section 3(5)(A) of the Act and special 
management or protection needs of the PCEs on these lands and 
determined that these areas should be proposed as critical habitat. 
That determination was based on Center for Biological Diversity v. 
Norton, 240 F. Supp 2d 1090, 1099 (D. Ariz. 2003), which held that if a 
habitat is already under some sort of management for its conservation, 
that particular habitat required special management considerations or 
protection and, therefore, meets the definition of critical habitat. 
These additional areas of the revised units are located within the 
range of the population, were occupied at the time of

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listing and are considered currently occupied, and contain habitat 
features essential for the conservation of the wintering population of 
piping plover, as described in the ``Primary Constituent Elements'' 
section of our June 12, 2006, rule.
    (4) Comment: One peer reviewer stated that piping plovers regularly 
use a portion of the beach habitat just west of the proposed critical 
habitat area at Unit 4 (Hatteras Inlet) on Ocracoke Island, and that 
the area had many features that make it attractive for piping plovers. 
The reviewer also suggested that we include an additional \1/2\ mile of 
beach habitat west of the proposed critical habitat area (Unit 4, 
Hatteras Inlet) on Ocracoke Island described in our June 12, 2006, 
proposed rule.
    Our Response: We agree that the area in question may provide 
features that are attractive to piping plovers, including containing 
PCEs, and that the area is used by piping plovers. However, in the 
course of our analysis we did not find sufficient information to 
conclude that the half-mile of beach habitat suggested for inclusion as 
designated critical habitat meets the definition of critical habitat 
(i.e., occurrence data or observations indicated a consistent use by 
piping plovers) as described in our July 10, 2001, final rule (66 FR 
36038) or our June 12, 2006, proposed rule (71 FR 33703). In fact, 
there are many areas of coastal habitats throughout the species' range 
that are not designated as critical habitat that are occupied by piping 
plovers under specific conditions and during various times of the year 
and that have features that are attractive to piping plovers. Not 
including these areas as critical habitat does not imply that the areas 
are not important for the recovery of the species, or that these areas 
do not provide important biological and physical conditions for 
wintering piping plovers. Rather, these areas have not been included 
because they do not meet the definition of critical habitat as defined 
in section 3 of the Act (see ``Critical Habitat'' section below).
    (5) Comment: One peer reviewer questioned the accuracy over time of 
the use of GIS technology to define areas as critical habitat since the 
coastal areas proposed as critical habitat in our June 12, 2006, 
proposed rule were extremely dynamic and regularly erode and accrete. 
They also noted that the exclusion of areas that did not provide the 
PCEs was appropriate, but questioned the status of the areas proposed 
as critical habitat should these structures be removed and/or the PCEs 
form in their place. A similar comment made by another peer reviewer 
questioned the exclusion of suitable unoccupied habitats, and suggested 
that we review and update critical habitat areas on a frequency 
consistent with the formation and destruction of the PCEs.
    Our Response: As required by section 4(b) of the Act and stated in 
the ``Methods'' section of the June 12, 2006, proposed rule, we use the 
best scientific data available in determining areas that contain the 
physical and biological features that are essential to the conservation 
of the wintering population of the piping plover. As noted by several 
of the reviewers, designating specific locations of critical habitat 
for the wintering piping plovers is difficult because the coastal areas 
they use are constantly changing due to storm surges, flood events, and 
other natural geo-physical alterations of beaches and shoreline. Thus, 
to best insure that areas containing features considered essential to 
the piping plover were included in the proposed designation, we 
developed textual unit descriptions that would constitute the 
definitive determination if an area is within the critical habitat 
boundary. Our textual unit descriptions describe the geography of the 
area using reference points, including the areas from the landward 
boundaries to the mean lower low water (which encompasses intertidal 
areas that are essential foraging areas for piping plovers), and 
describe areas within the unit that are utilized by the piping plover 
and contain the PCEs (e.g., upland areas used for roosting and wind 
tidal flats used for foraging). Our textual descriptions also exclude 
features and structures (e.g., buildings, roads, etc.) that are not or 
do not contain PCEs. This method accounts for normal erosion and 
accretion processes occurring within the boundaries of the critical 
habitat unit description.
    (6) Comment: One peer reviewer questioned a statement in the 
methodology of our June 12, 2006, proposed rule that areas may be 
excluded from consideration as critical habitat if ``the area was 
small, highly fragmented, or isolated and may provide little or no 
long-term conservation value.'' The peer reviewer requested 
clarification of this statement.
    Our Response: In the ``Criteria Used To Identify Critical Habitat'' 
section of our June 12, 2006, proposed rule, we listed the conditions 
under which critical habitat was identified and considered. The 
identification of areas that were ``small, highly fragmented, or 
isolated and may provide little or no long-term conversation value'' 
was one of several criteria used in the decision process. Not including 
such areas as critical habitat does not imply that these areas are not 
important for the long-term conservation of the species, or that the 
areas do not provide important biological and physical conditions for 
wintering piping plovers. Rather, such areas area not included as 
critical habitat because they do not meet the definition of critical 
habitat as defined in section 3 of the Act (see ``Critical Habitat'' 
section below).
    (7) Comment: One peer reviewer stated that the sentence ``managing 
access might also improve the available habitats for the conservation 
of piping plovers'' in our June 12, 2006, proposed rule was lacking and 
understated. The reviewer provided references to six additional studies 
that support the premise that managing access, and particularly off-
road vehicle use, improves habitat quality for the piping plover.
    Our Response: While we were not able to review all of the studies 
referenced by the reviewer because those documents were not readily 
available to us, we did find the information published in the 
referenced scientific peer-reviewed journals or papers (3 of the 6 
referenced by the peer reviewer) to be supportive of our statement and 
that managing access can improve habitat quality for the piping plover. 
Our comment in the June 12, 2006, proposed rule was intended to 
indicate that managing access is one way to improve habitats for the 
conservation of piping plovers at the individual areas identified as 
proposed revised 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 the State regarding the proposal to designate 
critical habitat for the wintering piping plover are addressed below.
    (8) Comment: The NCWRC expressed concern that certain areas, such 
as the north end of PINWR and several sound-side and inlet islands, 
that provide the physical and biological features necessary for the 
survival and recovery of the piping plover were absent from the June 
12, 2006, proposed rule. The State agency provided data and referenced 
studies and reports that supported their assertion of the importance of 
these sites. They also stated that the management plans identified in 
support of our exclusion of these sites in the June 12, 2006, proposed 
rule (i.e., PINWR's

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Comprehensive Conservation Plan and the NCWRC's Wildlife Action Plan) 
were insufficient to protect habitats for the wintering population of 
the piping plover.
    Our Response: See our response to comment 3.
    (9) Comment: The NCWRC asked for clarification of the ownership of 
``emergent sandbars'' within the inlet channels as described in our 
June 12, 2006, proposed rule. Specifically, the agency asked for a 
description of the extent of the proposed critical habitat south and 
west of Oregon Inlet. The agency also recommended that all emergent 
sandbars be included as critical habitat.
    Our Response: In our June 12, 2006, proposed rule and May 15, 2008, 
revised proposed rule, we identified specific islands as critical 
habitat and acknowledged their ownership. These islands were identified 
as DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare and 
Hyde Counties) owned by the State of North Carolina, and Green Island 
(Dare County), owned by NPS. Our textual unit descriptions describe the 
geography of the area using reference points, and describe areas within 
the unit that are utilized by the piping plover and contain the PCEs. 
Future islands and/or emergent sandbars created or formed within the 
boundary limits of critical habitat identified in this designation will 
be considered critical habitat if they contain the habitat features 
essential for the conservation of the wintering population of piping 
plover, regardless of their ownership. The designation of critical 
habitat does not affect, and is not affected by, the ownership of the 
property.

Public Comments

General Biological Comments

    (10) Comment: Several commenters questioned differences in the 
status of the piping plover recognized under the Act and by other 
organizations, stating that the species was listed only as ``Near 
Threatened'' by Birdlife International. One commenter also appeared 
confused by its listing status under the Act and its ability to migrate 
between its breeding grounds and its wintering grounds, stating the 
piping plover is ``not an endangered species, but a migratory 
species.''
    Our Response: The listed status of a species may vary among 
organizations based on their individual listing categorizations and/or 
criteria for listing a species and may depend on many factors important 
solely for the designating organization (e.g., local and/or regional 
population size, geographical range and conditions, threats, and the 
probability of extinction/extirpation). The Act is the only Federal law 
that designates a species as endangered or threatened with a regulation 
to provide specific Federal protections for the species.
    The ``Near Threatened'' status assigned to the piping plover by 
Birdlife International is based on the International Union for 
Conservation of Nature (IUCN) Red List Category and Criteria (ver. 3.1 
(2001)), which defines Near Threatened species as ``a taxon [that] has 
been evaluated against the criteria but does not qualify for Critically 
Endangered, Endangered or Vulnerable now, but is close to qualifying 
for or is likely to qualify for a threatened category in the near 
future.'' Birdlife International provides the following justification 
for the Near Threatened status for the piping plover: ``This species 
has a small population which has declined significantly since the 
1950s. However, there have been overall population increases since 1991 
as a result of intensive conservation management, so the species is 
listed as Near Threatened. It is still dependent on intensive 
conservation efforts, so if these cease, or if trends reverse, then it 
would warrant immediate uplisting again.''
    Under the Act, species are listed as endangered or threatened. A 
species is added to the list when it is determined to be endangered or 
threatened because of any of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; or (5) the natural or manmade factors 
affecting its survival. Using these criteria, we published a final rule 
listing the piping plover as endangered in the Great Lakes watershed 
and threatened elsewhere within its range on December 11, 1985 (50 FR 
50726). All piping plovers on migratory routes outside of the Great 
Lakes watershed or on their wintering grounds are considered threatened 
under Federal law. The ability of a species to migrate between breeding 
grounds and wintering grounds does not affect its listing status under 
the Act.
    (11) Comment: Several commenters stated that CAHA does not provide 
much environmental value for the piping plover or is not essential to 
the existence of the species because CAHA is on the fringe of the 
species' wintering and breeding grounds. Many of these commenters 
argued that for these reasons critical habitat should not be designated 
at CAHA.
    Our Response: For sites that were occupied at the time a species is 
listed, as these sites were, the criterion for designating sites as 
critical habitat is not whether sites are essential to prevent 
extinction; it is whether the sites provide the features essential for 
the conservation of the species and may require special management 
consideration or protection. The areas we have designated as critical 
habitat are areas which contain the physical and biological features 
essential to the conservation of the species. These areas contain 
sufficient features to support piping plover life processes and, 
therefore, provide environmental value for the piping plover. The 
designation of critical habitat for the wintering population of the 
piping plover includes habitats important for both wintering and 
migrating piping plovers.
    Although CAHA is on the fringe of the species' wintering and 
breeding grounds, it is regularly used by piping plovers. We note that 
few piping plovers use the areas during the winter months (i.e., most 
sites have fewer that 20 birds during these months); however, these 
sites are very important for migrating piping plovers. As many as 100 
birds have been recorded at sites designated as critical habitat on a 
single day during the migratory period.
    (12) Comment: One commenter stated that the decline in the piping 
plover can be attributed to extinction and that extinction was a 
natural selection process at work. However, the commenter provided no 
data or other documentation that suggested the decline in piping 
plovers was attributed to extinction.
    Our Response: Extinction is a natural process. Normally, new 
species develop through a process known as speciation at about the same 
rate that other species become extinct. However, because of air and 
water pollution, over-hunting, extensive deforestation, the loss of 
wetlands, and other human-induced impacts, extinctions are now 
occurring at a rate that far exceeds the speciation rate. Congress, on 
behalf of the American people, passed the Act to prevent extinctions 
facing many species of fish, wildlife, and plants. The purpose of the 
Act is to conserve endangered and threatened species and the ecosystems 
on which they depend as key components of America's heritage.
    We published a final rule listing the piping plover as endangered 
and threatened under the Act on December 11, 1985 (50 FR 50726). While 
hunting is thought to have been a major factor

[[Page 62820]]

contributing to the decline of the piping plover in the late 19th and 
20th centuries, shooting of the piping plover and other migratory birds 
has been prohibited since 1918 under the provisions of the Migratory 
Bird Treaty Act. Habitat loss and degradation, disturbance by humans 
and pets, and increased predation were cited as important causes of the 
downward trend that started in the late 1940s (50 FR 50726) and 
continues to the present time in some portions of the species' range. 
Several factors continue to contribute to the decline of the piping 
plover along the Atlantic Coast. These factors include:
    <bullet> Commercial, residential, and recreational development, 
which have decreased the amount of coastal habitat available for piping 
plovers to nest and feed.
    <bullet> Human disturbance, which often curtails breeding success. 
Foot and vehicular traffic may crush nests or young. Excessive 
disturbance may cause the parents to desert the nest, exposing eggs or 
chicks to the summer sun and predators. Interruption of feeding may 
stress juvenile birds during critical periods in their development or 
wintering birds trying to obtain food resources for energy reserves to 
complete long migrations.
    <bullet> Pets, especially dogs, which may harass the birds.
    <bullet> Developments near beaches, which provide food that 
attracts increased numbers of predators such as raccoons, skunks, and 
foxes. Domestic and feral cats are also very efficient predators of 
plover eggs and chicks.
    <bullet> Storm-tides, which may inundate nests.
    (13) Comment: Many commenters stated that it is not necessary to 
designate critical habitat at CAHA because populations of the piping 
plover have been stable or increasing in CAHA and overall for the last 
20 years. Many argued that no more than 15 breeding pairs have been 
recorded at CAHA and less than 1 percent of the total population of 
piping plovers can be found using CAHA at any time. Many wondered how 
habitat can be critical to a species' survival when less than 1 percent 
of the population will ever nest, breed, feed, or rest at CAHA.
    Our Response: In general, the breeding population of the piping 
plover at CAHA has declined since the species was listed under the Act; 
however, the breeding population has increased in recent years from the 
lowest number of breeding pairs recorded in 2002 and 2003 (two pairs 
each year). It is more difficult to ascertain the exact number of 
piping plovers using CAHA during the migration and wintering periods 
because regular and comprehensive surveys are not conducted during 
these times. However, CAHA is geographically important for piping 
plovers. Many of the piping plovers nesting north of CAHA along the 
Atlantic Coast will migrate through CAHA to the wintering grounds. 
Likewise, those same birds may use the habitats at CAHA during their 
return migration north to the breeding grounds. Piping plovers from the 
Great Lakes and possibly the Great Plains populations also use CAHA 
during these migrations (Pompei and Cuthbert 2004). One-day bird counts 
have recorded as many as 100 piping plovers at a single location within 
CAHA (NCWRC unpublished data).
    In this designation, we identified areas along the coast that 
contain the PCEs and where occurrence data indicate a consistent use by 
wintering piping plovers. The essential features found on the 
designated areas may require special management consideration or 
protection. We believe that the designated areas are sufficient, and 
are needed to support piping plovers for recovery.
    (14) Comment: One commenter asked about the need for further 
closures since piping plover numbers have more than doubled at CAHA 
since 2004. Another commenter stated that under the existing NPS 
management plan, piping plovers are witnessing an increase in number 
and moving toward the goal of recovery.
    Our Response: We assume that the commenters are referring to 
increases in the number of breeding pairs of piping plovers at CAHA. 
Though this increase is real and represents positive and encouraging 
progress toward piping plover recovery, we note that this rule 
identifies and designates critical habitat for wintering piping 
plovers. As such, it is not intended to address issues related to the 
breeding season. We also note that closures are implemented by NPS 
under the Interim Strategy and Consent Decree; any additional closures 
are at the discretion of NPS.
    (15) Comment: One commenter asked why the Service does not raise 
piping plovers in captivity like the bald eagle. Another commenter 
asked why the Service does not move the piping plover to PINWR since 
that area was established for wildlife.
    Our Response: Piping plovers exhibit relatively high site fidelity, 
returning year after year to the same wintering sites on both the 
Atlantic and Gulf Coasts (e.g. , Johnson and Baldassarre 1988; USFWS 
1996; Zonick and Ryan 1993). Furthermore, the purpose of the Act is to 
provide a means to protect the ecosystems upon which endangered and 
threatened species depend. Captive propagation is used in certain rare 
cases in which populations of the species in question are at extremely 
low numbers such that the species is very close to extinction and where 
the species' life history lends itself to captive propagation. Neither 
is the case with the piping plover. Instead, our general strategy for 
endangered species conservation is to work with others to ensure that 
the ecosystems upon which listed species depend are healthy enough to 
support recovered populations. We note again that this critical habitat 
designation is intended to address habitat for wintering piping 
plovers. As such, the reproductive capacity of the piping plover 
populations was not a factor in evaluating which areas we would 
designate as critical habitat.
    (16) Comment: Three commenters asked the Service to consider 
closing areas once nests have been identified rather than closing the 
entire seashore.
    Our Response: As stated above, this critical habitat designation is 
for the wintering population of the piping plover. These designations 
will have no effect on actions on CAHA, PINWR, or the State-owned 
islands related to the management of breeding piping plovers. Decisions 
regarding the management of areas used by breeding piping plovers on 
CAHA are under the exclusive purview of the NPS.
    (17) Comment: A few commenters suggested that we consider 
controlling predators such as foxes, feral cats, and weasels that 
destroy piping plover eggs and chicks.
    Our Response: See our response to comment 16 above.
    (18) Comment: One commenter stated that storms have a significant 
impact on piping plover habitat and questioned why we did not consider 
the effect of large storms in our designation. The commenter referenced 
a decline in the breeding piping plover population at CAHA during the 
late 1990s when a series of large storm events affected the North 
Carolina coastline and an increase in breeding piping plovers since 
2005 when no major storm events were recorded.
    Our Response: This critical habitat designation is for the 
wintering population of the piping plover. The effect of storms on 
breeding piping plover numbers at CAHA was not a point considered in 
the designation of critical habitat for the wintering population of 
piping plovers.

[[Page 62821]]

Site-Specific Biological Comments

    (19) Comment: We received numerous comments requesting that CAHA be 
excluded from critical habitat on the basis that PINWR was excluded in 
our June 12, 2006, proposed rule.
    Our Response: In our May 15, 2008 revised proposed rule, we revised 
Unit 1 to include PINWR as proposed critical habitat (See our response 
to comment 3). We have determined that all areas identified as critical 
habitat on CAHA meet the definition of critical habitat and have 
designated it as such in this final rule. All areas of the revised 
units are located within the range of the population, were occupied at 
the time of listing and are considered currently occupied, and contain 
habitat features essential for the conservation of the wintering 
population of piping plover that require special management, as 
described in the ``Primary Constituent Elements'' section of our June 
12, 2006, rule and the ``Special Management Considerations or 
Protections'' section of this rule.
    (20) Comment: Several commenters stated that we failed to provide 
evidence that the increase in park visitation and ORV use was the 
reason for a decline in the piping plover population at CAHA.
    Our Response: In our proposed designation, we made a correlation 
between increasing park visitation and ORV use and piping plover 
habitat use and population numbers at CAHA. Our use of these data in 
this context is intended to indicate that the critical habitat areas 
contain the physical and biological features essential to the 
conservation of the species and that the features may require special 
management and protections.
    (21) Comment: With regard to pedestrian disturbances to piping 
plover, one commenter wrote that piping plovers are recovering nicely 
at Nantucket, Massachusetts, where the beach is closed to vehicles 
only, but not to pedestrians. Another commenter asked that the areas 
remain open to pedestrians, while one additional commenter stated that 
the literature on pedestrian disturbance lacks any statistics on 
mortality.
    Our Response: As stated above, this critical habitat designation is 
for the wintering population of the piping plover. It will have no 
effect on actions on CAHA, PINWR, or the State-owned islands related to 
the management of breeding piping plovers. Furthermore, the designation 
of critical habitat for wintering piping plovers does not establish 
closures, refuges, or other restrictions on use or access to the 
designated areas. Decisions regarding pedestrian and vehicle access to 
portions of CAHA are under the purview of the NPS. We note that the 
Service and NPS previously conferred on the effects of the Interim 
Strategy on the proposed critical habitat units and determined that the 
Interim Strategy would not result in adverse modification of wintering 
piping plover critical habitat.

Section 7 Consultation

    (22) Comment: Many commenters expressed concern or raised questions 
regarding the effects of critical habitat designation on the 
consultation process under section 7 of the Act, specifically the 
effect of designation on the replacement of the Herbert C. Bonner 
Bridge over Oregon Inlet and the repair of the North Carolina Highway 
12 transportation corridor. Many also expressed concern for 
implementation of emergency services (e.g. , ferry service, power/
electrical systems services from Hatteras Island to Ocracoke Island) to 
the islands.
    Our Response: With regard to the replacement of the Herbert C. 
Bonner Bridge over Oregon Inlet, we prepared a biological and 
conference opinion that concludes replacement of the bridge and the 
transportation corridor is not likely to destroy or adversely modify 
proposed critical habitat for the wintering population of the piping 
plover. We also note that critical habitat for wintering piping plovers 
has been designated and in place at 119 units along the Atlantic and 
Gulf coasts since 2001 (n.b., 142 units designated before courts 
vacated 4 units in North Carolina in 2004, and 19 units in Texas in 
2006). During that time, to the best of our knowledge, no Federal 
projects have been delayed or substantially altered by the presence of 
designated critical habitat.
    With regard to emergency situations, the Service has provisions 
under the Act that recognize that an emergency (natural disaster or 
other calamity) may require expedited coordination and/or consultation. 
Where emergency actions are required that may affect listed species 
and/or critical habitats, consultations are handled with as much 
understanding of the action agency's critical mission as possible while 
ensuring that anticipated actions will not violate the Act. Emergency 
consultation procedures allow action agencies to incorporate endangered 
species concerns into their actions during the response to an 
emergency. For example, the initial stages of emergency consultations 
usually are done by telephone or facsimile, followed by written 
correspondence from the Service. During this initial contact, or soon 
thereafter, the Service offers recommendations to minimize the effects 
of the emergency response action on listed species or their critical 
habitat. This written record provides the requesting agency with a 
formal document reminding them of the commitments made during the 
initial step in emergency consultation. As soon as practicable after 
the emergency is under control, the action agency initiates formal 
consultation with the Service if listed species or critical habitat 
have been adversely affected. This process is designed to provide 
protective measures for listed species and their habitats and will not 
prevent necessary action when human life is at stake.
    (23) Comment: Many commenters referenced the inclusion of emergent 
sandbars in the designation of critical habitat and are concerned that 
they have the potential to stop or delay dredging to maintain critical 
channels in Oregon, Hatteras, and Ocracoke Inlets. They stated that 
closed channels would affect commercial fishing vessels, charter 
fishing vessels, and recreational use at these three inlets, as well as 
ferry traffic to Ocracoke Island. One commenter specifically asked the 
Service to consider the impact of new inlets, erosion, and sand 
shifting relative to their impacts on commerce and safety and suggested 
that any new rules should not significantly delay the maintenance of 
current inlets and channels used by commercial fishermen or the ferry 
system.
    Our Response: The U.S. Army Corps of Engineers (Corps) is the 
Federal agency responsible for maintaining navigational channels, and 
as such, they are required to ensure that their actions do not 
jeopardize the continued existence of listed species or adversely 
modify critical habitat for listed species. Should channels be 
obstructed by sediment or emergent sandbars, the Corps may consult with 
the Service in order to determine how best to provide access to these 
areas while minimizing effects to piping plovers or their critical 
habitat. Again, we note that critical habitat for wintering piping 
plovers has been designated and in place for 119 units since 2001, and 
that during that time, to the best of our knowledge, no Federal 
projects have been delayed or substantially altered by the presence of 
designated critical habitat.

Public Involvement/Coordination

    (24) Comment: Several commenters stated that the June 20, 2007, 
public hearing was poorly advertised and unknown to a majority of the 
affected public entities and local businesses.

[[Page 62822]]

One organization requested a second public hearing on Ocracoke Island.
    Our Response: The June 20, 2007, public hearing was announced in a 
press release and in the notice of availability published in the 
Federal Register on May 31, 2007 (72 FR 30326). The press release was 
submitted to 14 newspapers in North Carolina and Virginia, Federal and 
State representatives, Dare and Hyde County commissioners, other 
Federal and State agencies, conservation organizations and other non-
governmental organizations, special interest groups, and other 
interested parties. The Service also purchased advertisements 10 days 
prior to the public hearing in the following newspapers: Outer Banks 
Sentinel, Coastland Times, and News and Observer. In addition, the 
announcement for the public hearing was provided on the Service's 
Raleigh Ecological Services Field Office Web site beginning May 31, 
2007.
    Section 4(b)(5) of the Endangered Species Act states, ``[w]ith 
respect to any regulation proposed by the Secretary to implement a 
determination, designation, or revision referred to in subsection 
(a)(1) or (3) [proposed or final rule to list a species as endangered 
or threatened, or proposed or final rule to designate any habitat of 
such species to be critical habitat], the Secretary shall * * * 
promptly hold one public hearing on the proposed regulation if any 
person files a request for such a hearing within 45 days after the date 
of publication of general notice.'' We have met this requirement.
    (25) Comment: Over the course of the rulemaking process and the 
three public comment periods, a few commenters wrote to request that 
each public comment period be extended for an additional 6 months.
    Our Response: We requested written comments from the public on the 
proposed designation of critical habitat for the wintering population 
of the piping plover during three comment periods totaling 150 days. 
The first comment period, associated with the publication of the 
proposed rule (71 FR 33703), opened on June 12, 2006, and closed on 
August 11, 2006. We also requested comments on the proposed critical 
habitat designation, associated draft economic analysis, and draft 
environmental assessment during a comment period that opened May 31, 
2007, and closed on July 30, 2007 (72 FR 30326). During this comment 
period, we also held a public hearing on June 20, 2007. Finally, we 
requested comments on the revised proposed critical habitat designation 
and associated revised draft economic analysis and environmental 
assessment during a comment period that opened May 15, 2008, and closed 
June 16, 2008 (73 FR 28084). We have provided ample time for the public 
to comment on the proposed rules and associated draft economic analysis 
and draft environmental assessment.
    (26) Comment: A few commenters wrote with regard to the public 
review process. Specifically, during the 2006 public comment period, a 
commenter asked for information about submitting comments on the 
proposed designation electronically. Another commenter requested the 
Service provide access to reports and other information about the 
critical habitat designation in both electronic (online) and printed 
forms. One other commenter requested copies of all public comments 
received.
    Our Response: During the first two comment periods (2006 and 2007), 
the Service accepted comments in either hard copy or electronic format. 
During the 2008 comment period, commenters were allowed to provide 
comments electronically through the Web site http://www.regulations.gov. Information regarding the submission of public 
comments was provided in the Federal Register at the opening of each 
comment period. All documents associated with the designation of 
critical habitat were posted on the Service's Raleigh Ecological 
Services Field Office Web site. A complete copy of the supporting 
record, including reports used to make our decisions, public comments 
received, and other information relevant to this critical habitat 
designation, are on file in the Raleigh Ecological Services Field 
Office and available for public review by appointment.

Best Information/Science

    (27) Comment: Several commenters were concerned that the Service 
was designating critical habitat without using the current and best 
available science, stating that insufficient justification was provided 
in the documents, that no current scientific information was provided 
which proves that the proposed areas are essential to the recovery of 
the piping plover, and that we ignored some current studies which 
suggest that the piping plover has made significant strides towards 
recovery. One commenter specifically wrote that recent studies were ill 
conceived and did not take long range numbers into respect. Another 
commenter wrote that critical habitat designation is not needed and 
that the Service failed to justify the designation with contemporary 
peer-reviewed science.
    Our Response: The commenters did not provide any additional 
scientific information on which they based their comments. As required 
by the Act, we used the best available scientific information on which 
to base our decision. In this way, we identified areas that contain the 
PCEs, where occurrence data indicate a consistent use by piping 
plovers, and where the essential features of the areas may require 
special management consideration or protection to ensure their 
contribution to the species' recovery. Thus, we believe that the 
designated areas are sufficient, are needed to support the conservation 
and recovery of the piping plover, are based on the best available 
science, and meet the definition of occupied critical habitat. As a 
result, we have not designated areas which were not occupied at the 
time of listing and thus would have required a determination that 
designation of those areas is essential to the conservation of the 
species.
    (28) Comment: Many commenters urged the implementation of a 
balanced process for critical habitat designation that takes 
recreational anglers, ORV users, and local sport fishing and related 
businesses into consideration. They further stated that it is important 
that the process of piping plover critical habitat designation rely on 
a balanced mix of biological and economic information and provide solid 
evidence of a conservation benefit.
    Our Response: 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 including that area 
in 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 as to which 
factors and how much weight will be given to any factor.
    With regard to economic impacts, the primary purpose of the 
economic analysis is to estimate the potential economic impacts 
associated with the designation of critical habitat for the wintering 
population of the piping plover. This information is intended to assist 
the Secretary in making decisions about whether the benefits of 
excluding

[[Page 62823]]

particular areas from the designation outweigh the benefits of 
including those areas in the designation and assessing whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Under section 4(b)(2) of the Act, we must consider 
relevant impacts in addition to economic ones. This process ensures a 
balanced approach to the designation of critical habitat. In other 
words, in designating critical habitat we were required to consider 
economic and other relevant impacts, and we did so (see ``Application 
of Section 4(b)(2)'' below). As a result, we did not exclude any areas 
under section 4(b)(2) of the Act in this final rule.

Definition of Critical Habitat

    (29) Comment: Several commenters questioned why critical habitat is 
designated in otherwise protected areas, such as State lands, national 
seashores, or refuges. We also received many comments questioning the 
need for the critical habitat designation given the protections to the 
piping plover provided by the NPS's Interim Strategy and the on-going 
Off-Road (ORV) Vehicle Management Plan rulemaking process. Conversely, 
several commenters expressed concern over the adequacy of such plans in 
protecting the piping plover and its habitats.
    Our Response: Although lands managed by the State, the NPS, and the 
Service have management plans in place to protect the piping plover and 
its habitat, we have determined, as stated several times within this 
rule, that the essential features require special management and, 
therefore, meet the definition of critical habitat.
    (30) Comment: Several commenters stated that the piping plover 
already receives substantial protections, such as under sections 7 and 
9 of the Act, and questioned why additional protection was necessary.
    Our Response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for species listed as threatened or endangered 
unless such designation would not be prudent. In our proposed rule (71 
FR 33703) we published our determination that designating critical 
habitat would be prudent in that it would not increase the degree of 
threat from human activity and that it would benefit the species. 
Therefore, we are proceeding with the designation.

Effects of Designation

    (31) Comment: Most of the comments that we received in opposition 
to the designation of critical habitat were based on the desire for the 
beaches to remain open to ORV and pedestrian use for the purposes of 
fishing, collecting seashells, sunbathing, and other forms of beach-
related recreation. Some commenters said that CAHA was designated as a 
``Recreational Area'' and, therefore, should remain open for 
recreational use. One commenter believes that if the beaches are closed 
to ORVs, then tourists will park in front of driveways, use private 
boardwalks, trespass on private property, and walk across dunes, 
destroying them. Another commenter suggested that the Service or the 
NPS continue fencing individual nests as they have done in the past.
    Our Response: The closing of the beaches to ORV and pedestrian use 
is part of the NPS's Interim Strategy and the April 30, 2008, Consent 
Decree. The breeding and wintering closures implemented under the 
Interim Strategy and Consent Decree are based on the location of 
nesting sites and location of chicks (breeding closures) and foraging 
areas (wintering closures). Critical habitat is based on areas which 
the Service determined to contain physical or biological habitat 
features needed for the conservation of the piping plover. Closures 
associated with implementation of the Interim Strategy or the Consent 
Decree would occur regardless of our critical habitat designation. The 
designation of critical habitat for wintering piping plovers does not 
establish closures, refuges, or other restrictions on use or access to 
the designated areas.
    Decisions regarding pedestrian and vehicle access to portions of 
CAHA and other management strategies are under the purview of the NPS. 
We note that the Service and NPS previously conferred on the effects of 
the Interim Strategy on the proposed critical habitat units and 
determined that the Interim Strategy would not result in adverse 
modification of wintering piping plover critical habitat.
    (32) Comment: Many comments we received recommended the Service 
find a balance between piping plover protection and recreational 
access. One commenter wrote that the use of ORV corridors has worked in 
the past and continues to be a viable option for coexistence between 
man and nature.
    Our Response: We agree that piping plovers and people can co-exist 
in wintering areas. The NPS is responsible for the management of 
endangered and threatened wildlife on CAHA, and makes decisions 
regarding the protection of the wildlife and their habitats necessary 
for their survival and recovery. The Service has provided and will 
continue to provide technical assistance to the NPS in such matters of 
endangered and threatened wildlife and habitat management. However, as 
explained in this final rule, the Act requires that we designate 
critical habitat for listed species unless we find that designating 
critical habitat is not prudent or determinable. In addition, the fact 
that people use areas used by plovers does not provide sufficient 
justification for not designating critical habitat.

Economics

    (33) Comment: Many of the public comments raised issues related to 
management measures that are not directly related to the current 
critical habitat designation (e.g., NPS Interim Strategy and the 
Consent Decree). For example, one commenter noted that the Consent 
Decree has caused layoffs and trip cancellations which have resulted in 
economic impacts to local residents that are not considered in the 
draft economic analysis (DEA).
    Our Response: The Service recognizes that a high level of public 
concern exists regarding future ORV management at CAHA, including 
recent changes to that management under the Consent Decree. However, it 
is the role of this economic analysis to distinguish between economic 
impacts resulting from ongoing events and those that may occur due to 
critical habitat (see section 1.4 of the final economic analysis 
(FEA)). That is, this analysis focuses on the incremental impact of the 
designation-impacts that would not occur absent critical habitat. As 
stated in section 2.3.3 of the FEA, which discusses the low-end 
scenario, the NPS does not anticipate changing its management of CAHA 
due to the designation. Additional discussion of the Consent Decree can 
be found in section 2.2.1.2 of the FEA.
    (34) Comment: One commenter stated that the potential benefits of 
the critical habitat designation should be quantified.
    Our Response: Section 1.5 of the FEA discusses possible benefits of 
the designation. Based on the best information available, it is not 
possible to estimate a potential increase in other types of visitation 
that might result from a decrease in ORV traffic (i.e., there are no 
available data models to predict how non-ORV visitation will change in 
response to changes in ORV visitation). The NPS has not observed 
significant trends in visitation related to past management closures, 
and the NPS does not anticipate substantially increased visitation to 
the park resulting from management closures (see section 2.3.1.2 of the 
FEA).

[[Page 62824]]

    (35) Comment: Several commenters believed that the 20-year 
timeframe used in the draft economic analysis (DEA) is too long, 
stating that it is impossible to estimate impacts out over 20 years.
    Our Response: To produce credible results, the FEA must consider 
impacts that are reasonably foreseeable. Based on available data, the 
Service believes that the impacts presented are reasonably foreseeable 
(see section 1.6 of the FEA).
    (36) Comment: One commenter stated that the DEA does not accurately 
apply a baseline approach and instead includes all impacts of 
conservation activities since the listing of the species in 1985.
    Our Response: The commenter appears to refer to section 1.6, which 
states that the DEA ``estimates economic impacts to activities from 
1985 (year of the species' final listing) to 2026.'' However, the 
results presented in section 2 of the FEA do not include any past 
impacts resulting from wintering piping plover conservation activities, 
stating ``this analysis does not attribute the impacts of past closures 
to critical habitat.'' Section 3 does report some past administrative 
costs based on the assumption that, due to the previous critical 
habitat, NPS either was required, or believed it would be required, to 
conduct a consultation under section 7 of the Act on its management 
activities.
    (37) Comment: Several commenters stated that the DEA failed to 
conduct a survey of local businesses.
    Our Response: A survey regarding the specific potential effects of 
management closures on individual businesses is beyond the scope of 
this analysis. The DEA used best available data on such factors as the 
size and annual sales of businesses collected by Dun & Bradstreet.
    (38) Comment: Several commenters noted the high level of 
uncertainty inherent in both estimated impacts and forecasts of future 
management. Several commenters stated that the designation of critical 
habitat will not necessarily lead to a total closure of designated 
areas, and that closure of certain sections of the beach is likely to 
simply shift ORV activity to other open areas. Other commenters stated 
that management of ORV use is likely to change in the future due to 
changes in NPS staff.
    Our Response: The FEA acknowledges uncertainty by providing a range 
of impacts based on two scenarios (see section 2.3.1). The low-end 
scenario assumes that no trips will be lost either because NPS will not 
close additional areas of the beach to ORV use, or because ORV users 
will move their recreational activities to other areas of the park 
without diminishing the value they hold for trips to the park. The 
high-end scenario assumes that all ORV trips to the designated areas 
are lost, and that the value of these lost trips is a cost of the 
rulemaking.
    (39) Comment: One commenter stated that ORV driving at CAHA is 
currently ``illegal,'' and thus no impacts associated with ORV 
recreational activity should be forecast.
    Our Response: Whether or not ORV activity is legal, there is no 
question that it currently takes place at CAHA. Moreover, the court in 
Cape Hatteras Access Preservation Alliance ordered the Service to 
analyze the possible economic impacts of designation on ORV recreation. 
Accordingly, the DEA and FEA both address these impacts.
    (40) Comment: Several commenters noted that the total park acreage 
is not accessible to ORV use. Rather only 10 percent of the park is 
open to ORV use due to various seasonal, safety, and species-related 
closures.
    Our Response: Based on discussions with NPS, the total area 
available for ORV use appears to be highly variable and dependent on a 
number of factors, including weather events and species movement (see 
section 2.3.1.2 of the FEA). Given this high of level of variability, 
it is difficult to estimate the acreage available for ORV use at any 
given time. Therefore, in the absence of fixed closures, the FEA 
assumes that any acre of the park may be available for ORV use at any 
given time.
    (41) Comment: Many of the commenters stated that the August 2003 
Vogelsong visitor use study, conducted for CAHA and cited in the DEA, 
does not provide a scientific basis for estimating the level of ORV use 
in CAHA. The commenters are concerned that critical habitat designation 
will reduce public access to CAHA beaches, affecting ORV use and 
overall beach visitation, and that the Vogelsong study understates such 
visitation. Several commenters stated that they believe the Vogelsong 
visitor use study used in section 2 of the DEA was inaccurate and 
provided low estimates of ORV visitors to the park. The commenters 
suggested an estimate of ORV-related trips based on a one-time count of 
3,000 ORV users over the Memorial Day weekend.
    Our Response: The weaknesses of the Vogelsong visitor use study are 
discussed in section 2.3.1 of the FEA. The Vogelsong study also 
recently underwent peer review. This review found that there was 
``insufficient detail provided on the sampling method and analysis to * 
* * reliably determine the extent to which CAHA is used by ORVs.'' 
However, one peer reviewer stated that, ``if the Vogelsong data are to 
be used to estimate annual ORV use and the economic impact of ORV use 
at CAHA * * * a matrix of estimates of total park visitation and ORV 
use should be presented to reflect the imprecise nature of these 
estimates,'' which the FEA does in section 2.3.2. A 2005 study by Neal 
was also peer-reviewed, and found to suffer from a number of other 
flaws (for example, ``quality control in the survey sample was lacking, 
and coverage of relevant populations fell short of that needed to 
understand the effects of limiting ORV traffic''), which implies it was 
deemed equally problematic. Despite the issues raised in the peer 
review, the Service believes that the results contained in the 
Vogelsong study represent the best available information to support an 
understanding of the potential economic impacts of this proposed 
designation, and that the manner in which the information from this 
study are applied (i.e., use of ranges) represents a reasonable 
application of the study consistent with the concerns raised in the 
peer review process.
    (42) Comment: Several commenters noted that the DEA did not include 
the 29 percent of visitors to CAHA who said they would not return to 
the park if the beaches were closed to ORV use.
    Our Response: This percentage was inadvertently left out of the 
DEA. The FEA estimates high-end impacts based on an assumption that as 
many as 61.4 percent of ORV trips to designated areas may be lost (see 
section 2.3.1.2 of the DEA).
    (43) Comment: One commenter suggested that the DEA does not explain 
the assumption that 32.4 percent of all trips to designated areas would 
be lost. In addition, the commenter stated that this percentage appears 
to overestimate lost visitation given that it was based on users' 
reactions to a total closure of all beaches.
    Our Response: The Vogelsong study reports that 32.4 percent of all 
visitors would visit less often if ORVs were not allowed on the beach 
and that 29.0 percent would not visit at all. In the absence of a site-
specific model to predict how users will react to changes in ORV 
management, this analysis assumes that these expressed opinions reflect 
how users would react to potential closures. Because this percentage 
may represent an overestimate given that areas of the park will remain 
open to ORV use, the FEA presents a possible range of impacts.
    (44) Comment: One commenter noted that Vogelsong states that ORV 
visitors

[[Page 62825]]

represent 7.3 to 11 percent of all visitors to CAHA while the DEA uses 
an estimate of 2.7 to 4.0 percent.
    Our Response: As discussed in section 2.3 of the DEA, the DEA 
develops its estimated impacts based on the number of actual ORVs and 
not based on the number of visitors participating in ORV recreation. 
The 7.3 to 11.0 percent cited in the comment estimates the number of 
ORV visitors (i.e., the number of ORVs multiplied by an average number 
of 2.5 people per vehicle), while the 2.7 to 4.0 percent used in the 
DEA measures the number of actual ORVs.
    (45) Comment: One commenter noted that the Vogelsong study was 
conducted from 2001 to 2002, and thus the percentage of ORV visitors to 
CAHA should be based on visitation during that period rather than 
visitation for 2003.
    Our Response: According to CAHA statistics, average visitation 
between 2001 and 2002 is estimated at 2,758,392. Using that visitation 
estimate and Vogelsong's estimated 73,526 to 110,288 ORVs, ORVs 
represent approximately 2.7 to 4.0 percent of all visitors to the park. 
This is clarified in the FEA (section 2.3.1.1) to reference the correct 
study years.
    (46) Comment: One commenter suggested that using an estimated 
number of ORVs per acre is a ``strange metric'' on which to base 
estimated losses in ORV user days.
    Our Response: Without a site-specific model, the DEA assumes that 
visitation is a function of the area available for recreation. 
Specifically, as outlined in section 2, the FEA assumes that the 
reduction in visitation is directly proportional to the percentage 
reduction in area available for recreation. The DEA thus distributes 
total annual ORV visits to the park across the total acreage of CAHA to 
develop an estimated number of ORV visits to each of the designated 
areas.
    (47) Comment: One commenter suggested that projecting visitation 
rates based on North Carolina population trends may over-estimate the 
number of future visitors.
    Our Response: The DEA projects visitation forward using the slope 
of annual park visitation from 1990-2000. That is, it assumes CAHA 
visitation will continue to grow at the same rate over the next 20 
years as it did from 1990 to 2000 (see section 2.3.1.1 of the DEA). To 
determine if this assumption is reasonable, the DEA also examines 
population trends in North Carolina for the same periods (i.e., 1990 to 
2000 and the next 20 years). Given that the North Carolina population 
growth rates were similar for the two periods and that the majority of 
visitors live in North Carolina, the DEA assumes that it is reasonable 
to project future visitation based on past visitation trends.
    (48) Comment: One commenter stated that the DEA does not anticipate 
additional closures because of the Consent Decree.
    Our Response: The FEA includes a discussion of the Consent Decree 
in section 2.2.1.2. Due to uncertainty about future management 
including the impact of the Consent Decree, the FEA provides a range of 
estimated impacts based on two scenarios. In the first scenario, it 
estimates the additional area that may be subject to closure, and 
estimates the number of trips to these areas that may potentially be 
lost (see section 2.3.2). In the second scenario, it assumes that 
either no additional beach closures are implemented, or that additional 
beach closures do not result in lost trips to CAHA (see section 2.3.3).
    (49) Comment: One commenter stated that it is inappropriate to 
connect increased park visitation and ORV use with decreased 
population.
    Our Response: As shown in exhibit 2-4 of the FEA, the population of 
North Carolina is projected to increase, and the DEA assumes that this 
increased population will result in an increase in visitation to the 
park (see section 2.3.1.1).
    (50) Comment: One commenter stated that estimates of ORVs per acre 
within CAHA used in the DEA are based on unsubstantiated assumptions, 
assumptions for which there is no statistical support. Specifically, 
the commenter noted that the DEA assumes there is a direct relationship 
between the number of ORV trips and the level of park visitation. 
However, the DEA does not provide a coefficient of correlation or the 
results of a regression analysis to demonstrate that such a direct 
relationship exists.
    Our Response: The commenter is correct in noting that the DEA 
assumes a linear relationship between park visitation and ORV use, and 
that there is no statistical model on which this assumption is based 
(see section 2.3.1.1). ORV users are a subset of visitors to the park. 
The DEA assumes, based on visitor use studies, that ORV use represents 
a fairly constant percentage of visitation to the park (see section 
2.3.1.1 of the FEA). Data to develop a formal statistical relationship 
between overall visitation and ORV use are not available.
    (51) Comment: One commenter stated that a reduction in accessible 
areas increases congestion in open areas, and thus also may affect the 
welfare of visitors to those open areas. Therefore, a 15 percent 
reduction in available area may result in a more than 15 percent 
decrease in visitors.
    Our Response: As outlined in section 2.3.1 of the FEA, the analysis 
assumes that the reduction in visitation is directly proportional to 
the percentage reduction in area available for recreation. A literature 
review undertaken for another species suggests that this is a 
reasonable approach to estimating impacts associated with a partial 
site closure (see J.R. DeShazo, ``The Effects of Closing a Portion of a 
Recreational Site on Visitation and Social Welfare: A Literature 
Review''). This approach is further outlined in section 2.2.2 of the 
FEA.
    (52) Comment: One commenter suggested that it may not be reasonable 
to assume that most fishermen access fishing sites via ORVs, and 
therefore welfare losses associated with recreational fishing should 
not be included in the DEA.
    Our Response: Based on discussions with NPS and other public 
comments received, many fishermen use ORVs as a means of accessing 
popular fishing sites. Therefore, the DEA estimates potential welfare 
losses associated with a decrease in recreational fishing opportunities 
due to a loss of access, as discussed in section 2.3.1.3 of the DEA.
    (53) Comment: One commenter stated that the DEA failed to consider 
potential impacts on recreational fishing.
    Our Response: As stated in section 2.3.1.3, the DEA includes 
potential welfare losses associated with losses in recreational fishing 
opportunities, estimating the welfare value of a recreational fishing 
day at $212.20. This welfare value is used to develop an estimate of 
total welfare losses that may result from the critical habitat 
designation.
    (54) Comment: Several commenters stated that the DEA does not 
consider the potential effects of critical habitat designation on the 
Bonner Bridge replacement project.
    Our Response: See our response to comment 22. The anticipated 
administrative costs of consulting on the Bonner Bridge project are 
included in section 4 of the FEA.
    (55) Comment: One commenter raised the concern that the DEA does 
not consider the potential effects of critical habitat designation on 
the dredging of sandbars, and the subsequent impact of this change in 
dredging on ferry service. The commenter stated that if ferry service 
to Ocracoke Island were to stop, there would be significant economic 
impacts to its residents.

[[Page 62826]]

    Our Response: Section 3.1 of the DEA discusses potential impacts on 
dredging. As noted in that section of the DEA, dredging activity is not 
anticipated to be affected by the designation; therefore, ferry service 
also would not be affected. However, there may be an increased rate of 
consultation for dredging projects, which is considered in section 4 of 
the FEA.
    (56) Comment: One commenter stated that it seems that the 
designation of critical habitat for the piping plover would eventually 
lead to a direct conflict with erosion control efforts, and that 
potential impacts on erosion control are not considered in the DEA.
    Our Response: As discussed in section 3.3 of the FEA, other 
activities, including erosion control, taking place within CAHA are 
managed under the Interim Strategy and the Consent Decree. No changes 
to this management are anticipated as a result of the critical habitat 
designation; therefore, no incremental impacts associated with erosion 
control are estimated.
    (57) Comment: One commenter was concerned that the DEA 
underestimated the economic impacts of critical habitat designation by 
not considering impacts to Federal agencies. Specifically, the 
commenter stated that the DEA does not include the costs to the NPS of 
reinitiating a 2006 formal consultation following critical habitat 
designation.
    Our Response: Impacts to Federal agencies resulting from the 
critical habitat designation are expected to consist primarily of an 
increased rate of consultation under section 7 of the Act (see section 
4 of the DEA). Administrative costs associated with this increased rate 
of consultation are estimated in that section of the analysis. This 
analysis assumes that the frequency of section 7 consultations related 
to the plover will increase in the future, and estimates future 
administrative costs based on that assumed increase in consultation 
rate (see exhibit 4-2). The possible reinitiatation of the 2006 formal 
consultation, as well as possible consultations on the future ORV 
management plan, are included in this projected increase. See also our 
responses to comments 22 and 23 above.
    (58) Comment: Several commenters suggested that the estimated trip 
expenditures used in the DEA seemed low.
    Our Response: The trip expenditures used in the DEA were obtained 
from the Vogelsong visitor use study and appear to be reasonably in 
line with other available estimates of beach trip expenditures, as 
discussed in section 2.3.1.3 of the DEA. Nonetheless, the FEA includes 
additional detail on a range of possible expenditures based on the 
comments received.
    (59) Comment: Several commenters stated that the DEA does not 
consider the closure of additional beaches due to the Consent Decree. 
The commenters are concerned that additional beach closures will reduce 
the number of visitors and thus reduce the amount of expenditures on 
vacation rentals and other services.
    Our Response: Discussion of the Consent Decree can be found in 
section 2.2.1.2 of the FEA. These additional closures are being 
implemented by NPS pursuant to the Consent Decree; that is, these 
closures are considered baseline to this analysis in that they would be 
expected to occur regardless of the designation. In fact, actions taken 
under the Consent Decree may lead to a reduction in the area that could 
become subject to closure under the critical habitat designation, and 
thereby reduce impacts to less than those forecast in the DEA. That is, 
to the extent that actions taken by the NPS under the Consent Decree 
lead to beach closures, the extent of closures due solely to the 
designation of critical habitat may be reduced. Note that, given the 
high level of uncertainty regarding the long-term impact of the Consent 
Decree, this analysis continues to consider the potential impact of 
closures to these areas.
    (60) Comment: Several commenters stated that potential impacts to 
small businesses resulting from possible closures could be greater than 
discussed in appendix A of the DEA. Specifically, one commenter stated 
that the DEA does not consider impacts to businesses on Ocracoke 
Island. These businesses are reporting income reductions of 30 to 50 
percent following management changes taken by the NPS in response to 
the Consent Decree.
    Our Response: As noted above, it is important to distinguish 
between impacts resulting from actions taken pursuant to the Consent 
Decree, which are considered as baseline to this analysis, because 
these impacts are assumed to occur absent a designation of critical 
habitat. While direct impacts of actions taken pursuant to the Consent 
Decree are not estimated in this analysis, income reductions that have 
been experienced following these management changes may provide 
information regarding how small businesses may be affected in the event 
of additional beach closures. A revised appendix A includes a 
discussion of these reductions in income and potential factors that may 
cause these reductions (see section A.1.1). It assumes that these 
impacts would be spread across a variety of industries and a number of 
businesses. A survey of specific potential effects of management 
closures on individual businesses is beyond the scope of this analysis.
    (61) Comment: One commenter noted that the majority of business in 
the Outer Banks is conducted during the summer peak season and is not 
spread out evenly throughout the year.
    Our Response: The DEA takes into account the seasonality of 
visitation when forecasting the number of trips (see section 2.3.1.2 of 
the DEA). However, sales data are not available at a sufficient level 
of detail to allow for the development of the estimated impact on small 
businesses by season, nor were such data received during the public 
comment period.
    (62) Comment: One commenter stated that the small business analysis 
is insufficient. Specifically, this commenter believes that impacts to 
small businesses will occur within a smaller geographic area, and, 
therefore, a smaller number of businesses would be affected 
(approximately 370 businesses across eight zip codes rather than the 
approximately 700 businesses in two counties considered in the DEA).
    Our Response: To estimate the number of small businesses, appendix 
A of the FEA uses best available data on such factors as the size and 
annual sales of businesses in the area, as collected by Dun & 
Bradstreet. These data are available on a county-wide basis. In total, 
the analysis considers impacts on more than 700 small entities. 
Depending on where visitors to the park spend money on goods and 
services, it is possible that the projected impacts could be felt over 
a smaller geographic area, as suggested in the comments. To address 
this concern, the FEA incorporates an analysis of the 370 businesses 
cited in the comment, and estimates the magnitude of potential impacts 
on these businesses.

Other Comments

    (63) Comment: Several commenters suggested that recreational access 
to CAHA via ORVs be authorized using a permit and education program. 
Similarly, at least one commenter suggested that information on proper 
beach etiquette be provided when a fishing license is purchased. One 
commenter expanded on that idea by suggesting that the NCWRC should 
withhold saltwater fishing licenses to those who violate habitat 
restrictions.
    Our Response: Decisions regarding the management of recreational 
activities at CAHA are the exclusive purview of the NPS. Similarly, any 
program associated with the issuance of

[[Page 62827]]

a saltwater fishing license or the potential revocation of such a 
license would require the authorization of the NCWRC. The Service is 
willing to provide technical assistance on matters associated with the 
implementation of an education and permit program as it relates to 
endangered and threatened species and their habitats, but we are not 
authorized to implement or enforce such programs at CAHA or in 
association with the State of North Carolina's saltwater fishing 
license program.
    (64) Comment: One commenter suggested that the Service start a 
volunteer corps to monitor bird nesting areas and to ensure that the 
piping plovers are protected from other animals and humans.
    Our Response: The NPS is responsible for the management of 
endangered and threatened wildlife parks and seashores throughout the 
United States. At CAHA, biologists currently monitor nesting and 
wintering shorebirds, including the piping plover, and make decisions 
regarding the protection of the birds and the habitat necessary for 
their survival and recovery. Outside of CAHA and Cape Lookout National 
Seashore, the NCWRC manages sites for endangered and threatened species 
and other imperiled shorebird and waterbird species. The Service works 
closely with these agencies in the management and protection of these 
species, including assisting the agencies with funds, volunteers, and 
information. We recommend that anyone interested in volunteering to 
assist in the protection of endangered or threatened species contact 
the appropriate landmanager for additional information and 
opportunities. For NPS properties, send inquiries on volunteering to: 
Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, NC 
27954; or Cape Lookout National Seashore, 131 Charles Street, Harkers 
Island, NC 28531. For endangered and threatened species volunteering 
opportunities throughout the rest of the State of North Carolina, we 
recommend sending inquiries to: North Carolina Wildlife Resources 
Commission, NCSU Centennial Campus, 1751 Varsity Drive, Raleigh, NC 
27606.
    (65) Comment: One commenter wrote ``the real threat to the piping 
plover is people and developers. Real estate developers are putting 
people on the sand where the plovers used to live.'' Another person 
wrote that construction and development on those islands has a bigger 
impact on the environment than the fishermen.
    Our Response: We have noted these comments.

Summary of Changes From Proposed Rule

    In preparing the final critical habitat designation for the 
wintering population of the piping plover in North Carolina, we 
reviewed and considered comments from the public and peer reviewers on 
the June 12, 2006, proposed designation of critical habitat (71 FR 
33703) and the May 31, 2007, draft economic analysis and environmental 
assessment (72 FR 30326), as well as the May 15, 2008, revised critical 
habitat proposal and associated draft economic analysis and 
environmental assessment (73 FR 28084). As a result, our final 
designation includes all areas proposed (and revised) as critical 
habitat for the wintering population of the piping plover in North 
Carolina (i.e., units NC-1, NC-2, NC-4, and NC-5), totaling 
approximately 2,043 acres (ac) (827 hectares (ha)).

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
    (a) Essential to the conservation of the species and
    (b) 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 the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under 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, 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 Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) of the Act requires consultation on Federal 
actions may affect 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 to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by private landowners. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain the physical and biological features that are essential to 
the conservation of the species, and be included only if those features 
may require special management consideration or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas that provide essential life 
cycle needs of the species (i.e., areas on which are found those 
physical and biological features essential to the conservation of the 
species). Under the Act, we can designate critical habitat in areas 
outside of the geographical area occupied by the species at the time it 
is listed only when we determine that those areas are essential for the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions represent the best scientific data available. They 
require our 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 should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources

[[Page 62828]]

may 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.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not promote the recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions. They are also subject 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 Federal agency 
action. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if information available at the time of 
these planning efforts calls for a different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas occupied by the species at 
the time of listing to designate as critical habitat, we consider those 
physical and biological features essential to the conservation of the 
species that may require special management considerations or 
protection. We consider the physical and biological features to be the 
PCEs laid out in the appropriate quantity and spatial arrangement for 
the conservation of the species.
    These PCEs include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We derive the specific PCEs required for the wintering population 
of the piping plover from the biological needs of the piping plover as 
described in the Critical Habitat section of the original rule to 
designate critical habitat for the wintering population of the piping 
plover published in the Federal Register on July 10, 2001 (66 FR 
36038). In its November 1, 2004, opinion (Cape Hatteras Access 
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d 
108 (D.D.C. 2004)), the court did not invalidate the PCEs identified in 
our original rule. In this final rule, the PCEs differ in format from 
the PCEs identified in the proposed revised critical habitat 
designation we published on June 12, 2006 (71 FR 33703), but match the 
format of the PCEs identified in the proposed revised critical habitat 
designation for the wintering population of the piping plover in Texas, 
which we published on May 20, 2008 (73 FR 29293). We reformatted the 
PCEs to provide additional clarity and did not alter the content of the 
PCEs identified in our original rule (66 FR 36038).
    Under the Act and its implementing regulations, we are required to 
identify the known physical and biological features within the 
geographical area known to be occupied at the time of listing that are 
essential to the conservation of the piping plover and which may 
require special management considerations or protections. The physical 
and biological features are those PCEs laid out in a specific spatial 
arrangement and quantity to be essential to the conservation of the 
species. All areas designated as critical habitat for the wintering 
population of the piping plover are occupied, are 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 species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that wintering piping plover's PCEs are the habitat components that 
support foraging, roosting, and sheltering and the physical features 
necessary for maintaining the natural processes that support these 
habitat components. The primary constituent elements are:
    (1) Intertidal sand beaches (including sand flats) or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation for feeding. In some cases, these flats may be 
covered or partially covered by a mat of blue-green algae.
    (2) Unvegetated or sparsely vegetated sand, mud, or algal flats 
above annual high tide for roosting. Such sites may have debris or 
detritus and may have micro-topographic relief (less than 20 in (50 cm) 
above substrate surface) offering refuge from high winds and cold 
weather.
    (3) Surf-cast algae for feeding.
    (4) Sparsely vegetated backbeach, which is the beach area above 
mean high tide seaward of the dune line, or in cases where no dunes 
exist, seaward of a delineating feature such as a vegetation line, 
structure, or road. Backbeach is used by plovers for roosting and 
refuge during storms.
    (5) Spits, especially sand, running into water for foraging and 
roosting.
    (6) Salterns, or bare sand flats in the center of mangrove 
ecosystems that are found above mean high water and are only 
irregularly flushed with sea water.
    (7) Unvegetated washover areas with little or no topographic relief 
for feeding and roosting. Washover areas are formed and maintained by 
the action of hurricanes, storm surges, or other extreme wave actions.
    (8) Natural conditions of sparse vegetation and little or no 
topographic relief mimicked in artificial habitat types (e.g., dredge 
spoil sites).
    This final designation is designed for the conservation of PCEs 
necessary to support the life history functions that were the basis for 
the proposal and the areas containing those PCEs in the appropriate 
quantity and spatial arrangement essential for the conservation of the 
species. Because not all life history functions require all the PCEs, 
not all critical habitat will contain all the PCEs.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
occupied by the species at the time of listing contain the features 
that are essential to the conservation of the species, and whether 
these features may require special management consideration or 
protections. As stated in the July 10, 2001, final listing rule (66 FR 
36038), activities that may destroy or adversely modify critical 
habitat are those that alter the PCEs to an extent that the value of 
critical habitat for both the survival and recovery of the piping 
plover is appreciably reduced. More specifically,

[[Page 62829]]

such activities could eliminate or reduce the habitat necessary for 
foraging by eliminating or reducing the piping plovers' prey base; 
destroying or removing available upland habitats necessary for 
protection of the birds during storms or other harsh environmental 
conditions; increasing the amount of vegetation to levels that make 
foraging or roosting habitats unsuitable; increasing recreational 
activities to such an extent that the amount of available undisturbed 
foraging or rooting habitat is reduced, with direct or cumulative 
adverse effects to individuals and completion of their life cycles. 
Examples of actions that have effects on wintering piping plover 
habitats include, but are not limited to:
    (1) Dredging and dredge spoil placement, and associated activities 
including staging of equipment and materials;
    (2) Seismic exploration;
    (3) Construction and installation of facilities, pipelines, and 
roads associated with oil and gas development;
    (4) Oil and other hazardous material spills and cleanup;
    (5) Construction of dwellings, roads, marinas, and other 
structures, and associated activities including staging of equipment 
and materials;
    (6) Beach nourishment, cleaning, and stabilization (e.g., 
construction and maintenance of jetties and groins, planting of 
vegetation, and placement of dune fences);
    (7) Certain types and levels of recreational activities, such as 
vehicular activity that impact the substrate, resulting in reduced prey 
or disturbance to the species;
    (8) Stormwater and wastewater discharge from communities;
    (9) Sale, exchange, or lease that may result in the habitat being 
altered or degraded of Federal land that contains suitable habitat;
    (10) Marsh and coastal restoration, particularly restoration of 
barrier islands and other barrier shorelines;
    (11) Military missions; and
    (12) Bridge or culvert construction, reconstruction, and 
stabilization.
    These activities may destroy or adversely modify critical habitat 
by:
    (1) Significantly and detrimentally altering the hydrology of tidal 
flats;
    (2) Significantly and detrimentally altering inputs of sediment and 
nutrients necessary for the maintenance of geomorphic and biologic 
processes that insure appropriately configured and productive systems;
    (3) Introducing significant amounts of emergent vegetation (either 
through actions such as marsh restoration on naturally unvegetated 
sites, or through changes in hydrology such as severe rutting or 
changes in storm or wastewater discharges);
    (4) Significantly and detrimentally altering the topography of a 
site (such alteration may affect the hydrology of an area or may render 
an area unsuitable for roosting);
    (5) Reducing the value of a site by significantly disturbing 
plovers from activities such as foraging and roosting (including levels 
of human presence significantly greater than those currently 
experienced);
    (6) Significantly and detrimentally altering water quality, which 
may lead to decreased diversity or productivity of prey organisms or 
may have direct detrimental effects on piping plovers (as in the case 
of an oil spill); and
    (7) Impeding natural processes that create and maintain washover 
passes and sparsely vegetated intertidal feeding habitats.
    As described in more detail in the unit descriptions below, we find 
that the PCEs within each unit may require special management 
considerations or protection due to threats to the wintering population 
of the piping plover or its habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining areas that 
contain the features that are essential to the conservation of the 
wintering population of the piping plover. The methodology used to 
identify features essential to the wintering population of the piping 
plover are described in the final rule to designate critical habitat 
published in the Federal Register on July 10, 2001 (66 FR 36038). We 
are designating critical habitat on lands that were occupied at the 
time of listing (66 FR 36038) and that contain sufficient PCEs to 
support life history functions essential for the conservation of the 
species. The methodology used to identify the critical habitat areas 
are described in the proposed rule to designate revised critical 
habitat published in the Federal Register on June 12, 2006 (71 FR 
33703), and modified on May 15, 2008 (73 FR 28084).
    We reviewed available information pertaining to the habitat 
requirements of this species. The material reviewed included data in 
reports submitted during section 7 consultations and by biologists 
holding section 10(a)(1)(A) recovery permits, research published in 
peer-reviewed articles and presented in academic theses and agency 
reports, and recovery plans. To determine the most current distribution 
of piping plover in North Carolina, these areas were further evaluated 
using wintering piping plover occurrence data from the NCWRC, the North 
Carolina Natural Heritage Program, and three international piping 
plover winter population censuses. We considered these data along with 
other occurrence data (including presence/absence survey data), 
research published in peer-reviewed articles and presented in academic 
theses and agency reports, and information received during the 
development of the July 10, 2001, designation of critical habitat for 
wintering piping plovers (66 FR 36038), the June 12, 2006, proposed 
rule (71 FR 33703), and the May 15, 2008, revised proposed rule (73 FR 
28084) to designate critical habitat for wintering piping plovers in 
North Carolina. To map areas containing the physical and biological 
features determined to be essential to the conservation of the species 
(see June 12, 2006, proposed rule (71 FR 33703)), we used data on known 
piping plover wintering locations, regional Geographic Information 
Systems (GIS) coverages, digital aerial photographs, and regional 
shoreline-defining electronic files.
    We have included those areas containing essential features along 
the coast for which occurrence data indicate a consistent use 
(observations over two or more wintering seasons) by piping plovers 
within this designation. Delineating specific locations for designation 
as critical habitat for the piping plovers was difficult because the 
coastal areas they use are constantly changing due to storm surges, 
flood events, and other natural geophysical alterations of beaches and 
shoreline. Thus, to best ensure that areas containing features 
considered essential to the piping plover are included in this 
designation, the textual unit descriptions of the units in the 
regulation constitute the definitive determination as to whether an 
area is within the critical habitat boundary. Our textual legal 
descriptions describe the area using reference points, including the 
areas from the landward boundaries to the mean of the lower low water 
(MLLW) (which encompasses intertidal areas with the features that are 
essential foraging areas for piping plovers), and describe areas within 
the unit that are utilized by the piping plover and contain the PCEs 
(e.g., upland areas used for roosting and wind tidal flats used for 
foraging). Our textual legal descriptions also exclude features

[[Page 62830]]

and structures (e.g., buildings, roads) that are not or do not contain 
PCEs.
    In order to capture the dynamic nature of the coastal habitat, and 
the intertidal areas used by the piping plover, we have textually 
described each unit as including the area from the MLLW height of each 
tidal day, as observed over the National Tidal Datum Epoch, landward to 
a point where PCEs no longer occur. The landward edge of the PCEs is 
generally demarcated by stable, densely-vegetated dune habitat which 
nonetheless may shift gradually over time.
    Global Positioning System (GPS) data were gathered using a mobile 
handheld mapping unit with settings to allow for post processing or 
Wide Area Augmentation System (WAAS) enabled correction. A minimum of 
five positions were captured for each point location. Data were 
processed using mapping software, and the points were output to a 
shapefile format. The point shapefile was checked for attribute 
accuracy and additional data fields were added to assign feature type. 
GIS point data were used to create lines. The lines were overlaid on 
National Oceanic and Atmospheric Administration digital ortho-
photographs and U.S. Geological Survey digital ortho-photographs. These 
lines were refined to create the landward edge of the critical habitat 
polygons. To complete the polygons, a boundary was drawn in the ocean 
or sound to demarcate the MLLW. The line was drawn using 20-foot Light 
Detection and Ranging (LIDAR) and contours to estimate the location of 
MLLW.
    When determining critical habitat boundaries, we made every effort 
to avoid including within the boundaries of the maps contained within 
this final rule developed areas such as buildings, paved areas, and 
other structures that lack PCEs for the wintering piping plover in 
North Carolina. 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 final 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.
    Units are designated based on sufficient PCEs being present to 
support wintering piping plover life processes. Some units contain all 
PCEs and support multiple life processes. Some units contain only a 
portion of the PCEs necessary to support the wintering piping plover's 
particular use of that habitat. Where a subset of the PCEs is present 
(such as water temperature during migration flows), it has been noted 
that only PCEs present at designation will be protected.
    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 four units as critical habitat for the wintering 
population of the piping plover in North Carolina. The critical habitat 
units described below constitute our current best assessment of areas 
that meet the definition of critical habitat for wintering piping 
plover in North Carolina. Table 1 shows the units that were occupied at 
the time of listing, the threats requiring special management or 
protections, land ownership, and approximate area encompassed within 
each unit.

                         Table 1--Critical Habitat Units for the Wintering Piping Plover
----------------------------------------------------------------------------------------------------------------
                                           Threats requiring special                              Total hectares
         Geographical area/unit            management or protections        Land  ownership           (acres)
----------------------------------------------------------------------------------------------------------------
Unit NC-1: Oregon Inlet.................  Dredge and sediment         Federal, State............       196 (485)
                                           disposal; Recreational
                                           use.
Unit NC-2: Cape Hatteras Point..........  Recreational use..........  Federal...................       262 (646)
Unit NC-4: Hatteras Inlet...............  Dredge and sediment         Federal, State............       166 (410)
                                           disposal; Recreational
                                           use.
Unit NC-5: Ocracoke Island..............  Recreational use..........  Federal...................       203 (502)
                                                                                                 ---------------
    Total...............................  ..........................  ..........................     827 (2,043)
----------------------------------------------------------------------------------------------------------------

    The four areas designated as critical habitat are: (1) Unit NC-1, 
Oregon Inlet; (2) Unit NC-2, Cape Hatteras Point; (3) Unit NC-4, 
Hatteras Inlet; and (4) Unit NC-5, Ocracoke Island.
    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the wintering population of 
the piping plover, below.

Unit NC-1: Oregon Inlet

    Unit NC-1 is approximately 8.0 km (5.0 mi) long, and consists of 
about 196 ha (485 ac) of sandy beach and inlet spit habitat on Bodie 
Island and Pea Island in Dare County, North Carolina. This is the 
northernmost critical habitat unit within the wintering range of the 
piping plover. Oregon Inlet is the northernmost inlet in coastal North 
Carolina, approximately 19.0 km (12.0 mi) southeast of the Town of 
Manteo, the county seat of Dare County. The unit is bounded by the 
Atlantic Ocean on the east and Pamlico Sound on the west and includes 
lands from the mean lower low water (MLLW) on the Atlantic Ocean 
shoreline to the line of stable, densely vegetated dune habitat (which 
is not used by piping plovers and where the PCEs do not occur) and from 
the MLLW on the Pamlico Sound side to the line of stable, densely 
vegetated habitat, or (where a line of stable, densely vegetated dune 
habitat does not exist) lands from MLLW on the Atlantic Ocean shoreline 
to the MLLW on the Pamlico Sound side. The unit begins at Ramp 4 near 
the Oregon Inlet Fishing Center on Bodie Island and extends 
approximately 8.0 km (5.0 mi) south to the intersection of NC Highway 
12 and Salt Flats Wildlife Trail (near Mile Marker 30, NC Highway 12), 
approximately 5.0 km (3.0 mi) from the groin, on Pea Island, and 
includes Green Island and any emergent sandbars south and west of 
Oregon Inlet, and the lands owned by the State of North Carolina, 
specifically islands DR-005-05 and DR-005-06. However, this unit does 
not include the Oregon Inlet Fishing Center, NC Highway 12, the Bonner 
Bridge and its associated structures, the terminal groin, the historic 
Pea Island Life-Saving Station, or any of their ancillary facilities 
(e.g., parking lots, out buildings). This unit contains the PCEs 
essential to the conservation of the species, including a contiguous 
mix of intertidal beaches and sand or mud flats (between annual low 
tide and annual high tide) with no or very sparse emergent vegetation, 
and adjacent areas of unvegetated or sparsely vegetated

[[Page 62831]]

dune systems and sand or mud flats above annual high tide.
    Oregon Inlet has reported consistent use by wintering piping 
plovers dating from the mid-1960s. As many as 100 piping plovers have 
been reported from a single day survey during the fall migration (NCWRC 
unpublished data). Christmas bird counts regularly recorded 20 to 30 
plovers using the area. Recent surveys have also recorded consistent 
and repeated use of the area by banded piping plovers from the 
endangered Great Lakes breeding population (Stucker and Cuthbert 2006). 
The overall number of piping plovers reported using the area has 
declined since the species was listed in 1986 (NCWRC unpublished data), 
which corresponds to increases in the number of human users (NPS 2005) 
and off-road vehicles (Davis and Truett 2000).
    Oregon Inlet is one of the first beach access points for off-road 
vehicles within Cape Hatteras National Seashore when traveling from the 
developed coastal communities of Nags Head, Kill Devil Hills, Kitty 
Hawk, and Manteo. As such, the inlet spit is a popular area for off-
road vehicle users to congregate. The majority of the Cape Hatteras 
National Seashore users in this area are off-road vehicle owners and 
recreational fishermen. In fact, a recent visitor use study of Cape 
Hatteras National Seashore reported that Oregon Inlet is the second 
most popular off-road vehicle use area in the park (Vogelsong 2003). 
Furthermore, the adjacent islands are easily accessed by boat, which 
can be launched from the nearby Oregon Inlet Fishing Center. Pea Island 
National Wildlife Refuge (PINWR) does not allow off-road vehicle use; 
however, Pea Island regularly receives dredged sediments from the 
maintenance dredging of Oregon Inlet by the Corps. The disposal of 
dredged sediments on PINWR has the potential to disturb foraging and 
roosting plovers and their habitats. As a result, the sandy beach and 
mud and sand flat habitats in this unit may require special management 
considerations or protection, as discussed in ``Special Management 
Considerations or Protections'' above.

Unit NC-2: Cape Hatteras Point

    Unit NC-2 consists of 262 ha (646 ac) of sandy beach and sand and 
mud flat habitat in Dare County, North Carolina. Cape Hatteras Point 
(also known as Cape Point or Hatteras Cove) is located south of the 
Cape Hatteras Lighthouse. The unit extends south approximately 2.8 mi 
(4.5 km) from the ocean groin near the old location of the Cape 
Hatteras Lighthouse to the point of Cape Hatteras, and then extends 
west 4.7 mi (7.6 km) along Hatteras Cove shoreline (South Beach) to the 
edge of Ramp 49 near the Frisco Campground. This unit includes lands 
from the MLLW on the Atlantic Ocean shoreline to the line of stable, 
densely vegetated dune habitat (which is not used by piping plovers and 
where PCEs do not occur). This unit contains the PCEs essential to the 
conservation of the species, including a contiguous mix of intertidal 
beaches and sand or mud flats (between annual low tide and annual high 
tide) with no or very sparse emergent vegetation, and adjacent areas of 
unvegetated or sparsely vegetated dune systems and sand or mud flats 
above annual high tide. This unit does not include the ocean groin.
    Consistent use by wintering piping plover has been reported at Cape 
Hatteras Point since the early 1980s, but the specific area of use was 
not consistently recorded in earlier reports. Often piping plovers 
found at Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet 
were reported as a collective group. However, more recent surveys 
report plover use at Cape Hatteras Point independently from Hatteras 
Inlet. These single day surveys have recorded as many as 13 piping 
plovers a day during migration (NCWRC unpublished data). Christmas bird 
counts regularly recorded 2 to 11 plovers using the area. Cape Hatteras 
Point is located near the Town of Buxton, the largest community on 
Hatteras Island. For that reason, Cape Hatteras Point is a popular area 
for ORV use and recreational fishing. A recent visitor use study of the 
park found that Cape Hatteras Point had the most ORV use within the 
park (Vogelsong 2003). As a result, the sandy beach and mud and sand 
flat habitats in this unit may require special management 
considerations or protection, as discussed in ``Special Management 
Considerations or Protections'' above.

Unit NC-4: Hatteras Inlet

    Unit NC-4 is approximately 8.0 km (5.0 mi) long, and consists of 
166 ha (410 ac) of sandy beach and inlet spit habitat on the western 
end of Hatteras Island and the eastern end of Ocracoke Island in Dare 
and Hyde Counties, North Carolina. The unit begins at the first beach 
access point at Ramp 55 at the end of NC Highway 12 near the Graveyard 
of the Atlantic Museum on the western end of Hatteras Island and 
continues southwest to the beach access at the ocean-side parking lot 
near Ramp 59 on the northeastern end of Ocracoke Island. This unit 
includes lands from the MLLW on the Atlantic Ocean shoreline to the 
line of stable, densely vegetated dune habitat (which itself is not 
used by the piping plover and where PCEs do not occur) and from the 
MLLW on the Pamlico Sound side to the line of stable, densely vegetated 
habitat, or (where a line of stable, densely vegetated dune habitat 
does not exist) lands from MLLW on the Atlantic Ocean shoreline to the 
MLLW on the Pamlico Sound side. The Hatteras Inlet unit includes all 
emergent sandbars within Hatteras Inlet including lands owned by the 
State of North Carolina, specifically Island DR-009-03/04. The unit is 
adjacent to, but does not include, the Graveyard of the Atlantic 
Museum, the ferry terminal, the groin on Ocracoke Island, NC Highway 
12, or their ancillary facilities (e.g., parking lots, out buildings). 
This unit contains the PCEs essential to the conservation of the 
species, including a contiguous mix of intertidal beaches and sand or 
mud flats (between annual low tide and annual high tide) with no or 
very sparse emergent vegetation, and adjacent areas of unvegetated or 
sparsely vegetated dune systems and sand or mud flats above annual high 
tide.
    Hatteras Inlet has reported consistent use by wintering piping 
plovers since the early 1980s, but the specific area of use was not 
consistently recorded in earlier reports. Often piping plovers found at 
Cape Hatteras Point, Cape Hatteras Cove, and Hatteras Inlet were 
reported as a collective group. However, more recent surveys report 
plover use at Hatteras Inlet independently from Cape Hatteras Point. 
These single-day surveys have recorded as many as 40 piping plovers a 
day during migration (NCWRC unpublished data). Christmas bird counts 
regularly recorded 2 to 11 plovers using the area. Recent surveys have 
also recorded consistent and repeated use of the area by banded piping 
plovers from the endangered Great Lakes breeding population (Stucker 
and Cuthbert 2006). The overall numbers of piping plovers reported 
using the area has declined in the last 10 years (NCWRC unpublished 
data), corresponding with increases in the number of human users (NPS 
2005) and off-road vehicles (Davis and Truett 2000).
    Hatteras Inlet is located near the Village of Hatteras, Dare 
County, and is the southernmost point of Cape Hatteras National 
Seashore that can be reached without having to take a ferry. As such, 
the inlet is a popular off-road vehicle and recreational fishing area. 
In fact, a recent visitor use study of the park found Hatteras Inlet 
the fourth most used area by off-road vehicles in the park (Vogelsong 
2003). Furthermore, the adjacent islands are easily accessed by

[[Page 62832]]

boat, which can be launched from the nearby marinas of Hatteras 
Village. As a result, the sandy beach and mud and sand flat habitats in 
this unit may require special management considerations or protection, 
as discussed in ``Special Management Considerations or Protections'' 
above.

Unit NC-5: Ocracoke Island

    This unit consists of 203 ha (502 ac) of sandy beach and mud and 
sand flat habitat in Hyde County, North Carolina. The unit includes the 
western portion of Ocracoke Island beginning at the beach access point 
at the edge of Ramp 72 (South Point Road), extending west approximately 
2.1 mi (3.4 km) to Ocracoke Inlet, and then back east on the Pamlico 
Sound side to a point where stable, densely vegetated dune habitat 
meets the water. This unit includes lands from the MLLW on the Atlantic 
Ocean shoreline to the line of stable, densely vegetated dune habitat 
(which is not used by the piping plover and where PCEs do not occur) 
and from the MLLW on the Pamlico Sound side to the line of stable, 
densely vegetated habitat, or (where a line of stable, densely 
vegetated dune habitat does not exist) lands from MLLW on the Atlantic 
Ocean shoreline to the MLLW on the Pamlico Sound side. The unit 
includes all emergent sandbars within Ocracoke Inlet. This unit 
contains the PCEs essential to the conservation of the species, 
including a contiguous mix of intertidal beaches and sand or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation, and adjacent areas of unvegetated or sparsely 
vegetated dune systems and sand or mud flats above annual high tide. 
The unit is adjacent to but does not include NC Highway 12, any portion 
of the maintained South Point Road at Ramp 72, or any of their 
ancillary facilities.
    Ocracoke Island had inconsistent recorded use by wintering piping 
plovers in the early 1980s, and Christmas bird counts recorded only 1 
to 6 plovers using the area throughout the early 1990s. However, since 
the late 1990s when regular and consistent surveys of the area were 
conducted, as many as 72 piping plovers have been recorded during 
migration, and 4 to 18 plovers have been regularly recorded during the 
overwinter period (NCWRC unpublished data). Recent surveys have also 
recorded consistent and repeated use of the area by banded piping 
plovers from the endangered Great Lakes breeding population (Stucker 
and Cuthbert 2006).
    Ocracoke Inlet is located near the Village of Ocracoke, and is the 
southernmost point of the Cape Hatteras National Seashore. Ocracoke 
Island is only accessible by ferry. As such, the island is a popular 
destination for vacationers and locals interested in seclusion. The 
inlet is also a popular recreational fishing and ORV area. A recent 
visitor use study of the park reported Ocracoke Inlet was the third 
most popular ORV use area in the park (Vogelsong 2003). As a result, 
the primary threat to the wintering piping plover and its habitat 
within this unit is disturbance to and degradation of foraging and 
roosting areas by ORVs and by people and their pets. Therefore, sandy 
beach and mud and sand flat habitats in this unit may require special 
management considerations or protection, as discussed in ``Special 
Management Considerations or Protections'' above.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies to ensure that 
actions they fund, authorize, or carry out are not likely to jeopardize 
the continued existence of a listed species or destroy or adversely 
modify designated critical habitat. Decisions by the Fifth and Ninth 
Circuit Court of Appeals have invalidated our definition of 
``destruction or adverse modification'' (50 CFR 402.02) (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)), and we do not rely on this 
regulatory definition when analyzing whether an action is likely to 
destroy or adversely modify critical habitat. Under the statutory 
provisions of the Act, we determine destruction or adverse modification 
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 its intended conservation role for the species.
    Under section 7(a)(2) of the Act, 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, we document compliance with the requirements of 
section 7(a)(2) through our 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 are likely to 
adversely affect listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action,
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
    <bullet> Are economically and technologically feasible, and
    <bullet> Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifiying 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 we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the piping plover or its 
designated critical habitat will require section 7(a)(2) 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 (33 U.S.C. 1251 
et seq.) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) or a permit from us under 
section 10(a)(1)(B) of the Act) will also be subject to the

[[Page 62833]]

consultation process under section 7(a)(2) of the Act. 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 carried out, do not require section 7(a)(2) 
consultations.

Application of the ``Adverse Modification Standard''

    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 
its intended conservation role for the species. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
physical and biological features to an extent that appreciably reduces 
the conservation value of critical habitat for the piping plover. 
Generally, the conservation role of piping plover 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, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and, therefore, should 
result in consultation for the piping plover are identified in our 
original rule designating critical habitat published in the Federal 
Register on July 10, 2001 (66 FR 36038). These activities include, but 
are not limited to:
    (1) Actions that would significantly and detrimentally alter the 
hydrology of tidal flats.
    (2) Actions that would significantly and detrimentally alter inputs 
of sediment and nutrients necessary for the maintenance of geomorphic 
and biologic processes that insure appropriately configured and 
productive systems.
    (3) Actions that would introduce significant amounts of emergent 
vegetation (either through actions such as marsh restoration on 
naturally unvegetated sites, or through changes in hydrology such as 
severe rutting or changes in storm or wastewater discharges).
    (4) 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 roosting).
    (5) Actions that would reduce the value of a site by significantly 
disturbing piping plovers from activities such as foraging and roosting 
(including levels of human presence significantly greater than those 
currently experienced).
    (6) Actions that would significantly and detrimentally alter water 
quality, which may lead to decreased diversity or productivity of prey 
organisms or may have direct detrimental effects on piping plovers (as 
in the case of an oil spill).
    (7) Actions that would impede natural processes that create and 
maintain washover passes and sparsely vegetated intertidal feeding 
habitats.
    We consider all of the units designated as critical habitat to 
contain features essential to the conservation of the wintering 
population of the piping plover in North Carolina. All units are within 
the geographic range of the species, all were occupied by the species 
at the time of listing, and all are likely to be used by the piping 
plover. Under section 7 of the Act, Federal agencies already consult 
with us on activities in areas currently occupied by the piping plover, 
or if the species may be affected by the action, the consultation is to 
ensure that their actions do not jeopardize the continued existence of 
the piping plover.

Exemptions and Exclusions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    <bullet> An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    <bullet> A statement of goals and priorities;
    <bullet> A detailed description of management actions to be 
implemented to provide for these ecological needs; and
    <bullet> A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the critical habitat designation.

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat 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 statute, as well as the legislative history, is 
clear that the Secretary has discretion as to which factors to use and 
how much weight to give to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If based on 
this analysis we determine that the benefits of exclusion would 
outweigh the benefits of inclusion of an area, then we can exclude the 
area only if such exclusions would not result in the extinction of the 
species.
    Under section 4(b)(2) of the Act, we must consider all relevant 
impacts, including economic impacts. We consider a number of factors in 
a section 4(b)(2) analysis. For example, we consider whether there are 
lands owned

[[Page 62834]]

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 the designation.
    In this instance, we have determined that the lands designated as 
critical habitat for the wintering population of piping plover in North 
Carolina are not owned or managed by the Department of Defense, there 
are currently no habitat conservation plans, and the designation does 
not include any Tribal lands or trust resources. We anticipate no 
impact to national security, Tribal lands, partnerships, or habitat 
conservation plans from this critical habitat designation. Therefore, 
there are no areas excluded from this final designation based on non-
economic impacts.

Economic Analysis

    Section 4(b)(2)of the Act requires us to designate critical habitat 
on the basis of the best scientific information available and to 
consider the economic and other relevant impacts of designating a 
particular area as critical habitat. Section 4(b)(2) of the Act allows 
the Secretary to exclude areas from critical habitat for economic 
reasons if the Secretary determines that the benefits of such exclusion 
outweigh the benefits of designating the area as critical habitat. 
However, this exclusion cannot occur if it will result in the 
extinction of the species concerned.
    In order to consider economic impacts, we prepared a draft economic 
analysis, which we made available for public review on May 31, 2007 (72 
FR 30326), based on the June 12, 2006, proposed rule (71 FR 33703). We 
then made available for public review on May 15, 2008 (73 FR 28084), a 
revised draft economic analysis based on the May 15, 2008, revised 
proposed rule (73 FR 28084). We accepted comments on the draft analysis 
until July 30, 2007, and accepted comments on the revised draft 
economic analysis until June 16, 2008. Following the close of both 
comment periods, a final analysis of the potential economic effects of 
the designation was developed taking into consideration the public 
comments and any new information.
    The intent of the final economic analysis (FEA) is to quantify the 
economic impacts of all potential conservation efforts for the 
wintering population of the piping plover in North Carolina. It 
estimates costs that will likely be incurred regardless of whether we 
designate critical habitat (baseline). However, consistent with the 
court's order in Cape Hatteras Access Preservation Alliance, the FEA 
also estimates the foreseeable economic impacts of conservation 
measures associated with the revised designation of critical habitat 
for the wintering population of the piping plover in North Carolina on 
government agencies, private businesses, and individuals (incremental 
costs). Specifically, the analysis measures how management activities 
undertaken by the NPS, the Service, and the State of North Carolina to 
protect wintering piping plover habitat against the threat of off-road 
vehicle (ORV) use or other recreational use of the beach may affect the 
value of the beaches to ORV and other recreational users and the 
region. In this analysis, it is assumed that the primary management 
tool employed for wintering piping plover conservation in North 
Carolina could be the implementation of closures of certain portions of 
the beach. If implemented, these closures would reduce the opportunity 
for recreational activities, such as ORV use. The Service believes that 
additional beach closures due to the designation of critical habitat 
for wintering piping plovers are unlikely.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. Finally, the FEA looks retrospectively at costs 
that have been incurred since 1985 (year of the species' listing) (50 
FR 50726), and considers those costs that may occur in the 19 years 
following the designation of critical habitat. Because the economic 
analysis considers the potential economic effects of all actions 
relating to the conservation of the wintering population of the piping 
plover in North Carolina, including costs associated with sections 4, 
7, and 10 of the Act and those attributable to designation of critical 
habitat, the economic analysis may have overestimated the potential 
economic impacts of the revised critical habitat designation.
    The economic analysis forecasts that costs associated with 
conservation activities for the wintering population of the piping 
plover in North Carolina would range from $0 to $11.9 million in lost 
consumer surplus and $0 to $20.2 million in lost trip expenditures, 
using a real rate of 7 percent over the next 20 years, with an 
additional $190,000 to $476,000 in administrative costs. This amounts 
to $0 to $985,000 in lost consumer surplus and $0 to $1.6 million in 
lost trip expenditures, annually. Using a real rate of 3 percent, 
discounted forecast impacts are estimated at $0 to $17.1 million in 
lost consumer surplus and $0 to $29.1 million in lost trip expenditures 
over the next 20 years, with an additional $141,000 to $354,000 in 
administrative costs. This amounts to $0 to $1.1 million in lost 
consumer surplus and $0 to $2.0 million in lost trip expenditures, 
annually. These costs are not related to, or the result of, the 
recently announced beach closures designed to protect breeding piping 
plovers and other seabirds resulting from the April 30, 2008, 
settlement agreement (see ``Previous Federal Actions'' above). Of the 
four units proposed as revised critical habitat, unit NC-2 is 
calculated to experience the highest estimated costs (about 40 percent) 
in both lost consumer surplus ($0 to $4.6 million, discounted at 7 
percent) and lost trip expenditures ($0 to $8.0 million, discounted at 
7 percent). Units NC-4, NC-5, and NC-1 account for about 26, 20, and 14 
percent, respectively, of the total potential impacts.
    This large range in forecast impacts is the result of two major 
uncertainties: (1) How NPS will manage beach access differently because 
of the critical habitat designation (e.g., whether any additional 
closures will be implemented); and (2) whether management activities, 
such as closures, will affect visitation levels or quality of visits 
for ORV users. Given these uncertainties, the FEA presents two 
scenarios to capture the potential range of impacts:
    (1) A high-end estimate that describes the potential incremental 
impacts of additional beach closures as a result of critical habitat 
designation. This scenario assumes that additional closures will result 
in decreased trips to this area (i.e., closures in addition to

[[Page 62835]]

those in place under current NPS management).
    (2) A low-end estimate that assumes that no trips will be lost 
either because NPS does not implement additional closures in response 
to the designation, or because the closures do not result in decreased 
levels of visitation or quality of ORV activities on the beach. Under 
this scenario, there are no lost trips in the future.
    These scenarios define the range of incremental costs that may 
result from the designation of critical habitat, depending on the 
Service's and the NPS's future implementation of the regulation. It is 
important to note that the NPS anticipates that ORV access to the beach 
will not be affected by the designation of critical habitat. 
Furthermore, the economic analysis quotes the Service, stating that 
``it is highly unlikely that the Service would recommend any additional 
closures associated with wintering piping plover critical habitat given 
that the NPS will be protecting the essential resources that are needed 
during the wintering months.'' Therefore, the high bound estimate 
includes a scenario of hypothetical conservation actions (i.e., 
additional beach closures that decrease ORV use and visitation) that 
are highly improbable.
    Because our economic analysis did not identify any disproportionate 
costs that are likely to result from the designation, we did not 
consider excluding any areas from this designation of critical habitat 
for the wintering population of piping plover in North Carolina based 
on economic impacts.
    A copy of the final economic analysis with supporting documents may 
be obtained by contacting the Raleigh Ecological Services Field Office 
(see ADDRESSES) or for downloading from the Internet at http://www.regulations.gov and http://www.fws.gov/raleigh/es_piplch.html.

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), whenever an agency must 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 (i.e., 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. SBREFA amended RFA to require 
Federal agencies to provide a certification statement of factual basis 
for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. In this final rule, 
we are certifying that the critical habitat designation for the 
wintering population of the piping plover will not have a significant 
economic impact on a substantial number of small entities. The 
following discussion explains our rationale.
    According to the Small Business Administration (SBA), 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 (e.g., 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 authorized, 
funded, or carried out 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 authorize, fund, or carry out 
that may affect the piping plover. 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 (see Application of the 
``Adverse Modification Standard'' section).
    In our FEA, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of the wintering population of the piping plover in North 
Carolina and the designation of critical habitat. The analysis 
estimated prospective economic impacts due to the implementation of 
wintering piping plover conservation efforts in two categories: 
recreation (particularly ORV use) and section 7 consultation undertaken 
by the NPS, the Service, and the State of North Carolina. We

[[Page 62836]]

anticipate that impacts of designation on conservation activities will 
not have a significant economic impact on small entities because the 
costs of consultation are borne entirely by the NPS, the Service, and 
the State of North Carolina. The only impacts we expect small entities 
to bear are the costs associated with lost consumer surplus and lost 
trip expenditures. Lost trips would impact generated visitor 
expenditures on such items as food, lodging, shopping, transportation, 
entertainment, and recreation. See ``Economics'' section above and the 
FEA for a more detailed discussion of estimated discounted impacts.
    Approximately 93 percent of businesses in affected industry sectors 
in both counties are small. Assuming that all expenditures are lost 
only by small businesses and that these expenditures are distributed 
equally across all small businesses in both counties, each small 
business may experience a reduction in annual sales of between $661 and 
$6,494, depending on a business's industry. Specifically, the 
entertainment industry may expect a loss of $661 if no trips are lost 
and $992 if trips are lost. The food industry may expect a loss of $808 
and $1,213 for no trips lost and trips lost, respectively. The shopping 
industry may expect a loss of $1,383 and $2,077, and lodging may expect 
a loss of $3,660 to $5,495, for no trips lost and trips lost, 
respectively. The transportation industry may expect a loss of $4,325 
if no trips are lost and $6,494 if trips are lost. If the small 
business is generating annual sales just under the SBA small business 
threshold for its industry, this loss represents between 0.01 and 0.08 
percent of its annual sales (0.01 to 0.03 percent for food, shopping, 
and entertainment; 0.05 to 0.08 percent for transportation and 
lodging). The Service concludes that this is not a significant economic 
impact.
    Assuming that each small business has annual sales just under its 
SBA industry small business threshold may underestimate lost 
expenditures as a percentage of annual sales. It is likely that most 
small businesses have annual sales well below the threshold. However, 
even if a business has annual sales below the small business threshold 
for its particular industry, it is probable that lost expenditures 
still are relatively small compared to annual sales. For example, if a 
small business has annual sales that are one-tenth of that industry's 
SBA small business threshold, potential losses still only represent 
between 0.10 and 0.85 percent of its annual sales.
    In summary, we have considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
certify that this rule will not have a significant economic impact on a 
substantial number of small business 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 NPS 
management actions, U.S. Army Corps of Engineers permitted or 
implemented actions (e.g., dredging and disposal), permits we may issue 
under section 10(a)(1)(B) of the Act, and Federal Highways 
Administration funding for road improvements. A regulatory flexibility 
analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the final economic analysis. Based on the effects identified in the 
economic analysis, we believe that this rule will not have an annual 
effect on the economy of $100 million or more, will not cause a major 
increase in costs or prices for consumers, and will not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Refer to the final economic 
analysis for a discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 (E.O. 
13211; ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'') on regulations that 
significantly affect energy supply, distribution, and use. E.O. 13211 
requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. OMB has provided guidance for implementing 
this E.O. that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with wintering piping plover conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, 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; Aid to Families 
with Dependent Children 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 section 7 of the Act, the only regulatory effect is that Federal 
agencies must ensure that their actions do not result in the 
destruction or adverse modification of critical habitat. Non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal

[[Page 62837]]

agency for an action may be indirectly impacted by the designation of 
critical habitat. However, 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.

Executive Order 12630--Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating 2,043 ac (827 ha) of lands in Dare and Hyde Counties, North 
Carolina, as critical habitat for the wintering population of the 
piping plover 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 E.O. 13132 (Federalism), the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this final critical habitat designation with 
appropriate State resource agencies in North Carolina. The designation 
of critical habitat in areas currently occupied by the wintering 
population of the piping plover 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. This information does not alter where and what 
federally sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the 
regulation meets the applicable standards set forth in 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 physical and 
biological features essential to the conservation of the species within 
the designated areas to assist the public in understanding the habitat 
needs of the wintering population of the piping plover.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.). 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)

    It is our position that, outside the jurisdiction of U.S. Court of 
Appeals for the Tenth Circuit, we do not need to prepare environmental 
analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with 
designating critical habitat under the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, 
the 2004 court decision ordering us to revise the critical habitat 
designation also ordered us to prepare an environmental analysis of the 
proposed designation under the NEPA (Cape Hatteras Access Preservation 
Alliance v. U.S. Department of Interior, 344 F. Supp. 2d. 108, 136 
(D.D.C. 2004)). To comply with the court's order, we prepared a draft 
environmental assessment under the requirements of NEPA as implemented 
by the Council on Environmental Quality regulations (40 CFR 1500-1508) 
and according to the Department of the Interior's NEPA procedures. The 
draft environmental assessment was based on the June 12, 2006, proposed 
rule (71 FR 33703), and the revised proposed rule, dated May 15, 2008 
(73 FR 28084). The environmental assessment included an evaluation of 
the impact of the proposed designation of the four revised critical 
habitat units (Units NC-1, NC-2, NC-4, and NC-5) for the wintering 
population of the piping plover in North Carolina. The draft 
environmental assessment presented the purpose of and need for critical 
habitat designation, the No Action and Preferred alternatives, and an 
evaluation of the direct, indirect, and cumulative effects of the 
alternatives. Within the analysis was the option to designate only some 
of the units or some portion of the units identified in the proposed 
and revised proposed rules. We notified the public of the availability 
of the draft environmental assessment for the proposed rule in the 
Federal Register on May 31, 2007 (72 FR 30326), and of the availability 
of the revised draft environmental assessment for the revised proposed 
rule in the Federal Register on May 15, 2008 (73 FR 28084).
    The Service has prepared a final environmental assessment and a 
Finding of No Significant Impact (FONSI) on the designation of four 
critical habitat units (Units NC-1, NC02, NC-4, and NC-5) for the 
wintering population of the piping plover in North Carolina. Overall, 
the action is likely to have only a small impact on the human 
environment. The action does not produce a change in the existing 
environment, but merely seeks to maintain the natural characteristics 
of the barrier islands that are important for the wintering population 
of the piping plover in North Carolina. The designation of critical 
habitat is not likely to limit activities within CAHA, PINWR, or the 
State-owned islands; all activities within the CAHA, PINWR, and the 
State-owned islands are already managed by the NPS, the Service, and 
the NCWRC, respectively, with a goal of balancing recreational 
activities with the preservation of natural resources. The designation 
of critical habitat would require the NPS and the Service to consider 
the winter habitat requirements of the piping plover when proposing 
actions that influence the designated units; the NCWRC would be 
required to consider the winter habitat requirements of the piping 
plover only

[[Page 62838]]

when Federal authorization or funding is part of their proposed action. 
However, since the areas to be designated as critical habitat are known 
to be used by the piping plover, as well as other federally listed 
species, the additional environmental analysis required by the 
designation of critical habitat for the wintering population of the 
piping plover in North Carolina would represent only a small increase 
above that required by sections 7 and 9 of the Act. The final 
environmental assessment and FONSI are available upon request from the 
Field Supervisor, Raleigh Ecological Services Field Office (see 
ADDRESSES) or on our Web site at http://www.fws.gov/raleigh/es_piplch.html.

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), E.O. 13175, and the Department of the 
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. We have determined that there are 
no Tribal lands occupied at the time of listing that contain the 
features essential for the conservation and no Tribal lands that are 
unoccupied areas that are essential for the conservation of the 
wintering population of the piping plover in North Carolina. Therefore, 
critical habitat for the wintering population of the piping plover in 
North Carolina has not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Raleigh Fish and 
Wildlife Office (see ADDRESSES). A complete list of all references 
cited in this rulemaking is available on the Internet at http://www.regulations.gov and http://www.fws.gov/raleigh/es_piplch.html.

Author(s)

    The primary authors of this rulemaking are staff members of the 
Raleigh Ecological Services Field Office, Raleigh, North Carolina.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. In Sec.  17.11(h), revise the entry for ``Plover, Piping'' under 
``BIRDS'' in the List of Endangered and Threatened Wildlife to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where                                  Critical
                                                       Historic range       endangered or        Status     When  listed     habitat     Special  rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Birds
 
                                                                      * * * * * * *
Plover, piping.................  Charadrius melodus  U.S.A. (Great       Great Lakes,        E                      211      17.95(b)   NA
                                                      Lakes, northern     watershed in
                                                      Great Plains,       States of IL, IN,
                                                      Atlantic and Gulf   MI, MN, NY, OH,
                                                      Coasts, PR, VI),    PA, and WI and
                                                      Canada, Mexico,     Canada (Ont.).
                                                      Bahamas, West
                                                      Indies.
Plover, piping.................  Charadrius melodus  U.S.A. (Great       Entire, except      T                      211      17.95(b)   NA
                                                      Lakes, northern     those areas where
                                                      Great Plains,       listed as
                                                      Atlantic and Gulf   endangered above.
                                                      Coasts, PR, VI),
                                                      Canada, Mexico,
                                                      Bahamas, West
                                                      Indies.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95(b), amend the entry for ``Piping Plover (Charadrius 
melodus) Wintering Habitat'' as follows:
0
a. Revise paragraphs 1 and 2;
0
b. In paragraph 3 remove the words ``North Carolina (Maps were 
digitized using 1993 DOQQs, except NC-3 (1993 DRG))'' and add in their 
place a new header and parenthetical text as set forth below;
0
c. Revise the critical habitat description for Unit NC-1;
0
d. Revise the critical habitat description for Unit NC-2;
0
e. Revise the critical habitat description for Unit NC-4;
0
f. Revise the critical habitat description for Unit NC-5;
0
g. Remove the first map for ``North Carolina Unit: 1'' and add in its 
place a new map ``North Carolina Unit: 1'' as set forth below; and
0
h. Remove the second map for ``North Carolina Units: 2, 3, 4, 5, & 6'' 
and add

[[Page 62839]]

in its place a new map ``North Carolina Units: 2, 3, 4, 5, & 6'' as set 
forth below.
    The revisions read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *

Piping Plover (Charadrius melodus) Wintering Habitat

    1. The primary constituent elements of critical habitat for the 
wintering population of the piping plover are the habitat components 
that support foraging, roosting, and sheltering and the physical 
features necessary for maintaining the natural processes that support 
these habitat components. The primary constituent elements are:
    (1) Intertidal sand beaches (including sand flats) or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation for feeding. In some cases, these flats may be 
covered or partially covered by a mat of blue-green algae.
    (2) Unvegetated or sparsely vegetated sand, mud, or algal flats 
above annual high tide for roosting. Such sites may have debris or 
detritus and may have micro-topographic relief (less than 20 in (50 cm) 
above substrate surface) offering refuge from high winds and cold 
weather.
    (3) Surf-cast algae for feeding.
    (4) Sparsely vegetated backbeach, which is the beach area above 
mean high tide seaward of the dune line, or in cases where no dunes 
exist, seaward of a delineating feature such as a vegetation line, 
structure, or road. Backbeach is used by plovers for roosting and 
refuge during storms.
    (5) Spits, especially sand, running into water for foraging and 
roosting.
    (6) Salterns, or bare sand flats in the center of mangrove 
ecosystems that are found above mean high water and are only 
irregularly flushed with sea water.
    (7) Unvegetated washover areas with little or no topographic relief 
for feeding and roosting. Washover areas are formed and maintained by 
the action of hurricanes, storm surges, or other extreme wave actions.
    (8) Natural conditions of sparse vegetation and little or no 
topographic relief mimicked in artificial habitat types (e.g., dredge 
spoil sites).
    2. Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    3. * * *
    North Carolina (Data layers defining map units 1, 2, 4, and 5 were 
created from GPS data collected in the field in May and June of 2005, 
and modified to fit the 1:100,000 scale North Carolina county boundary 
with shoreline (cb100sl) data layer from the BasinPro 8 data set 
published by the North Carolina Center for Geographic Information and 
Analysis, which was compiled in 1990. Other map units were digitized 
using 1993 DOQQs, except NC-3 which utilized 1993 DRG.)

Unit NC-1: Oregon Inlet, 485.4 ac (196.4 ha) in Dare County, North 
Carolina

    This unit extends from the southern portion of Bodie Island through 
Oregon Inlet to the northern portion of Pea Island. It begins at Ramp 4 
near the Oregon Inlet Fishing Center on Bodie Island and extends 
approximately 4.7 mi (7.6 km) south to the intersection of NC Highway 
12 and Salt Flats Wildlife Trail (near Mile Marker 30, NC Highway 12), 
approximately 2.9 mi (4.8 km) from the groin, on Pea Island. The unit 
is bounded by the Atlantic Ocean on the east and Pamlico Sound on the 
west and includes lands from the MLLW (mean lower low water) on the 
Atlantic Ocean shoreline to the line of stable, densely vegetated dune 
habitat (which is not used by piping plovers and where PCEs do not 
occur) and from the MLLW on the Pamlico Sound side to the line of 
stable, densely vegetated habitat, or (where a line of stable, densely 
vegetated dune habitat does not exist) lands from MLLW on the Atlantic 
Ocean shoreline to the MLLW on the Pamlico Sound side. Any emergent 
sandbars south and west of Oregon Inlet, including Green Island and 
lands owned by the State of North Carolina, such as island DR-005-05 
and DR-005-06, are included (not shown on map). This unit does not 
include the Oregon Inlet Fishing Center, NC Highway 12 and the Bonner 
Bridge or its associated structures, the terminal groin, or the 
historic Pea Island Life-Saving Station, or any of their ancillary 
facilities (e.g., parking lots, out buildings).

Unit NC-2: Cape Hatteras Point, 645.8 ac (261.4 ha) in Dare County, 
North Carolina

    This unit is entirely within Cape Hatteras National Seashore and 
encompasses the point of Cape Hatteras (Cape Point). The unit extends 
south approximately 4.5 km (2.8 miles) from the ocean groin near the 
old location of the Cape Hatteras Lighthouse to the point of Cape 
Hatteras, and then extends west 7.6 km (4.7 miles) (straight-line 
distances) along Hatteras Cove shoreline (South Beach) to the edge of 
Ramp 49 near the Frisco Campground. The unit includes lands from the 
MLLW on the Atlantic Ocean to the line of stable, densely vegetated 
dune habitat (which is not used by the piping plover and where PCEs do 
not occur). This unit does not include the ocean groin.
* * * * *

Unit NC-4: Hatteras Inlet, 410.0 ac (165.9 ha) in Dare and Hyde 
Counties, North Carolina

    This unit extends from the western end of Hatteras Island to the 
eastern end of Ocracoke Island. The unit extends approximately 7.6 km 
(4.7 mi) southwest from the first beach access point at the edge of 
Ramp 55 at the end of NC Highway 12 near the Graveyard of the Atlantic 
Museum on the western end of Hatteras Island to the edge of the beach 
access at the ocean-side parking lot (approximately 0.1 mi south of 
Ramp 59) on NC Highway 12, approximately 1.25 km (0.78 mi) southwest 
(straightline distance) of the ferry terminal on the northeastern end 
of Ocracoke Island. The unit includes lands from the MLLW on the 
Atlantic Ocean shoreline to the line of stable, densely vegetated dune 
habitat (which is not used by the piping plover and where PCEs do not 
occur) and from the MLLW on the Pamlico Sound side to the line of 
stable, densely vegetated habitat, or (where a line of stable, densely 
vegetated dune habitat does not exist) lands from MLLW on the Atlantic 
Ocean shoreline to the MLLW on the Pamlico Sound side. All emergent 
sandbars within Hatteras Inlet between Hatteras Island and Ocracoke 
Island, including lands owned by the State of North Carolina such as 
Island DR-009-03/04 (not shown on map), are included. The unit is 
adjacent to but does not include the Graveyard of the Atlantic Museum, 
the ferry terminal, the groin on Ocracoke Island, NC Highway 12, or 
their ancillary facilities (e.g., parking lots, out buildings).

Unit NC-5: Ocracoke Island, 501.8 ac (203.0 ha) in Hyde County, North 
Carolina

    This unit is entirely within Cape Hatteras National Seashore and 
includes the western portion of Ocracoke Island beginning at the beach 
access point at the edge of Ramp 72 (South Point Road), extending west 
approximately 3.4 km (2.1 mi) to Ocracoke Inlet, and then back east on 
the Pamlico Sound side to a point where stable, densely-vegetated dune 
habitat meets the water. This unit includes lands from the MLLW on the 
Atlantic Ocean shoreline to the line of stable, densely-vegetated dune 
habitat

[[Page 62840]]

(which is not used by the piping plover and where PCEs do not occur) 
and from the MLLW on the Pamlico Sound side to the line of stable, 
densely vegetated habitat, or (where a line of stable, densely 
vegetated dune habitat does not exist) lands from MLLW on the Atlantic 
Ocean shoreline to the MLLW on the Pamlico Sound side. All emergent 
sandbars within Ocracoke Inlet are also included. This unit does not 
include any portion of the maintained South Point Road, NC Highway 12, 
or any of their ancillary facilities.
* * * * *
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR21OC08.051


[[Page 62841]]


[GRAPHIC] [TIFF OMITTED] TR21OC08.052

* * * * *

    Dated: September 24, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-23206 Filed 10-20-08; 8:45 am]
BILLING CODE 4310-55-C