62816 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Rules and Regulations 

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. 

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 


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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 soundside 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 


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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: 

• Commercial, residential, and 

recreational development, which have 

decreased the amount of coastal habitat 

available for piping plovers to nest and 

feed. 

• 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. 

• Pets, especially dogs, which may 

harass the birds. 

• 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. 

• 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. 


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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. 


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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 


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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). 


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(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 lowend 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 peerreviewed, 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 


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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. 


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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 


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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 


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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, 


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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 


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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

Geographical area/unit Threats requiring special 

management or protections 

Land 

ownership 

Total hectares 

(acres) 

Unit NC–1: Oregon Inlet ............................................. Dredge and sediment disposal; Recreational use ..... Federal, State .... 196 (485) 

Unit NC–2: Cape Hatteras Point ................................ Recreational use ........................................................ Federal ............... 262 (646) 

Unit NC–4: Hatteras Inlet ........................................... Dredge and sediment disposal; Recreational use ..... Federal, State .... 166 (410) 

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 


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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 


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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: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• 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 


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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: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• 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 


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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. Decisionmakers 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 


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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 


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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 


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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 nonFederal 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 


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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 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Plover, Piping’’ under ‘‘BIRDS’’ in the 

List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species Historic 

range 

Vertebrate population where endangered or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

BIRDS

* * * * * * * 

Plover, piping ........... Charadrius melodus U.S.A. (Great Lakes, 

northern Great 

Plains, Atlantic 

and Gulf Coasts, 

PR, VI), Canada, 

Mexico, Bahamas, 

West Indies.

Great Lakes, watershed in States of 

IL, IN, MI, MN, 

NY, OH, PA, and 

WI and Canada 

(Ont.).

E 211 17.95(b) NA 

Plover, piping ........... Charadrius melodus U.S.A. (Great Lakes, 

northern Great 

Plains, Atlantic 

and Gulf Coasts, 

PR, VI), Canada, 

Mexico, Bahamas, 

West Indies.

Entire, except those 

areas where listed 

as endangered 

above.

T 211 17.95(b) NA 

* * * * * * * 

■ 3. In § 17.95(b), amend the entry for 

‘‘Piping Plover (Charadrius melodus) 

Wintering Habitat’’ as follows: 

■ a. Revise paragraphs 1 and 2; 

■ 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; 

■ c. Revise the critical habitat 

description for Unit NC–1; 

■ d. Revise the critical habitat 

description for Unit NC–2; 

■ e. Revise the critical habitat 

description for Unit NC–4; 

■ f. Revise the critical habitat 

description for Unit NC–5; 

■ 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 

■ h. Remove the second map for ‘‘North 

Carolina Units: 2, 3, 4, 5, & 6’’ and add 


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in its place a new map ‘‘North Carolina 

Units: 2, 3, 4, 5, & 6’’ as set forth below. 

The revisions read as follows: 

§ 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 


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(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 


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* * * * * 

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 


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