Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover, 56970-57119 [05-19096]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 188 (Thursday, September 29, 2005)]
[Rules and Regulations]
[Pages 56970-57119]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19096]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Pacific Coast Population of the Western Snowy Plover; 
Final Rule

Federal Register / Vol. 70, No. 188 / Thursday, September 29, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT89


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Pacific Coast Population of the Western Snowy 
Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Pacific coast population of the 
western snowy plover (Charadrius alexandrinus nivosus) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 12,145 acres (ac) (4,921 hectares (ha)) fall within the 
boundaries of the critical habitat designation. The critical habitat is 
located within 3 states, and a total of 20 counties. The county 
breakdown by State is as follows: California--San Diego, Orange, Los 
Angeles, Ventura, Santa Barbara, San Luis Obispo, Monterey, Santa Cruz, 
San Mateo, Marin, Mendocino, Humboldt, Del Norte; Oregon--Curry, Coos, 
Douglas, Lane, Tillamook; and Washington--Pacific, Grays Harbor.

DATES: This rule becomes effective on October 31, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 
95521 (telephone 707/822-7201). The final rule, economic analysis, and 
supporting Geographic Information System (GIS) reports will also be 
available via the Internet at https://www.fws.gov/pacific/sacramento/
default.htm.

FOR FURTHER INFORMATION CONTACT: Michael Long, Field Supervisor, Arcata 
Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521 
(telephone 707/822-7201; facsimile 707/822-8411).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 473 species or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however that two courts found our definition of adverse 
modification to be invalid (March 15, 2001, decision of the United 
States Court of Appeals for the Fifth Circuit, Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434 and the August 6, 2004, Ninth 
Circuit judicial opinion, Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service). In response to these decisions, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result of 
this consequence, listing petition responses, the Service's own 
proposals to list critically imperiled species, and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This situation in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
costs of preparation and publication of the designation, the analysis 
of the economic effects and the costs of requesting and responding to 
public comments, and, in some cases, the costs of compliance with 
National Environmental Policy Act. None of these costs result in any 
benefit to the species that is not already afforded by the protections 
of the Act enumerated earlier, and these associated costs directly 
reduce the scarce funds available for direct and tangible conservation 
actions.

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Background

    Background information on the Pacific coast population of the 
western snowy plover (Pacific Coast WSP) can be found in our final rule 
listing of the Pacific Coast WSP, published in the Federal Register 
(FR) on March 5, 1993 (58 FR 12864), and our recent proposal of 
critical habitat for this population, published on December 17, 2004 
(69 FR 75608). Additional background information is also available in 
our previous final designation of critical habitat for the Pacific 
Coast WSP, published on December 7, 1999 (64 FR 68508).

Previous Federal Actions

    For a discussion of previous Federal actions regarding the Pacific 
Coast WSP, please see our final rule listing the population, published 
on March 5, 1993 (58 FR 12864), our recent proposal of critical habitat 
for this population, published on December 17, 2004 (69 FR 75608), and 
the December 7, 1999, final rule to designate critical habitat for the 
Pacific coast population of the western snowy plover (64 FR 68508). The 
December 7, 1999, was remanded and partially vacated by the United 
States District Court for the District of Oregon on July 2, 2003, for 
the Service to reconsider the designation and conduct a new analysis of 
economic impacts (Coos County Board of County Commissioners et. al. v. 
Department of the Interior et al., CV 02-6128, M. Hogan). The court set 
a deadline of December 1, 2004, for submittal of a new proposed 
critical habitat designation to the Office of the Federal Register; the 
proposed rule was published on December 17, 2004 (69 FR 75608). On 
August 16, 2005, we published in the FR (70 FR 48094) a notice of 
availability for the draft economic analysis associated with the 
proposed rule and we reopened the comment period on the proposed rule 
for 30 days. The court-established deadline for submittal of the final 
designation is September 20, 2005. This final rule complies with the 
September 20, 2005, deadline.
    In August 2002, we received a petition to delist the Pacific Coast 
WSP from the Surf Ocean Beach Commission of Lompoc, California. The 
City of Morro Bay submitted largely the same petition dated May 30, 
2003. On March 22, 2004, we published a notice that the petition 
presented substantial information to indicate that delisting may be 
warranted (69 FR 13326). We are currently conducting both a 12-month 
and a 5-year status review of the population under sections 4(b)(3)(A), 
4(b)(3)(B) and 4(c)(2) of the Act, in order to issue the finding 
required by section 4(b)(3)(B) in response to the petitions.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Pacific Coast WSP in the 
proposed rule published on December 17, 2004 (69 FR 75608). We also 
contacted the appropriate Federal, State, and local agencies; Tribes; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule. We received two requests for a public 
hearing or ``workshop'' prior to the published deadline. Public 
meetings were held in Tomales, California, and Crescent City, 
California, on February 14, 2005, and March 8, 2005, respectively. The 
initial comment period closed on February 15, 2005. A second comment 
period for the draft Economic Analysis (DEA) was open from August 16, 
2005 to September 15, 2005. All comments and new information received 
during the two comment periods have been incorporated into this final 
rule as appropriate.
    A total of 1,055 commenters responded during the two comment 
periods, including 8 Federal agencies, 4 State agencies, 17 local 
agencies, 21 organizations, and 1005 individuals. Form letters 
attributed the most comments on the proposed Lake Earl unit (CA 1), and 
comment cards and a petition accounted for most of the comments 
regarding the proposal of Dillon Beach (CA 7). Thirty-four commenters 
submitted two separate sets of comments. During the comment period from 
December 17, 2004, to February 15, 2005, we received 36 comments 
directly addressing the proposed critical habitat designation and DEA: 
1 from a State agency, 6 from local agencies, and 29 from organizations 
and individuals.
    Most comments did not support designation of critical habitat. The 
vast majority of comments objected to the designation of Dillon Beach 
(CA 7) and Lake Earl (CA 1). Five hundred ninety petition signatures 
and form letters objected to designation of Dillon Beach (CA 7) as 
critical habitat, and 117 form letters opposed designation of the Lake 
Earl unit (CA 1). The petition and form letters associated with these 2 
units skewed the overall support for designation; representing 
approximately 67 percent of the comments received. We reviewed all 
comments for substantive information and new data regarding the listed 
population and its critical habitat. Comments containing substantive 
information have been grouped together by issue and are addressed in 
the following summary. All comments and information have been 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from at least three 
knowledgeable individuals who have expertise with the species, the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. Of the five individuals contacted, 
three responded. The peer reviewers generally supported the proposal 
and provided us with comments which are included in the summary below 
and incorporated into the final rule, as appropriate. Unless otherwise 
noted, the peer review commented on our proposed rule published 
December 17, 2004. Subsequent changes to our proposal reflected in the 
final rule resulting from comments received during the second comment 
period did not receive peer review comment.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the western snowy plover, and addressed them in the 
following summary.

Peer Reviewer Comments

    1. Comment: A peer reviewer who conducts shorebird research in 
northern California through an academic institution agreed with the 
general biology presented in the proposed rule; however, the reviewer 
felt that describing the Pacific Coast WSP's social system as 
territorial was misleading. Although true for breeding areas where the 
densities of nesting plovers is high, the reviewer stated that plovers 
in many parts of the Pacific Coast WSP's range do not defend a well-
defined space (i.e. territory). This point may be important when 
estimating the number of individual breeders that can be supported by 
an area of particular size.
    Our Response: We agree with the peer reviewer regarding the 
territorial nature of the Pacific Coast WSP, and his point relative to 
estimating the number of breeders capable of using a specified area. 
Our estimates provided in the unit descriptions were based on the best 
historical information we had from surveys conducted in the late 1970s. 
It is unknown if those estimates were

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based on an already declining population, or a population that was at 
carrying capacity. In addition, changing conditions in the dynamic 
habitats preferred by the Pacific Coast WSP likely affects an area's 
capacity to support breeding plovers.
    2. Comment: One peer reviewer is investigating the importance of 
social attraction in relation to the settlement of inexperienced 
Pacific Coast WSPs (i.e. first-time breeders). Preliminary data from 
Coal Oil Point suggest that social factors play a role in attracting 
plovers to nest in an area. If true, the management of wintering flocks 
may be important relative to determining where plovers nest (e.g. Coal 
Oil Point Preserve at U.C. Santa Barbara, California).
    Our Response: We agree with the commenter's preliminary assessment 
of the Coal Oil Point Preserve study. Our designation of critical 
habitat recognizes the importance of both wintering and breeding areas.
    3. Comment: Two of the peer reviewers commented on our proposal to 
designate critical habitat only in areas currently occupied, or 
occupied at the time of listing. Specifically, the 1993 listing was 
based, in part, on the absence of breeding plovers at formerly occupied 
sites, and the former critical habitat designation in 1999 made use of 
former and current site (1998) occupancy. Birds absent from formerly 
occupied sites may be an outcome of low population size, not 
necessarily because habitat has become unsuitable at a site. The 
proposed units place a higher emphasis on occupied sites than 
unoccupied. As the Pacific Coast WSP recovers, it will presumably need 
areas in which to expand; some of which are currently suitable, but 
unoccupied.
    Our Response: Although we acknowledge that unoccupied areas may be 
important for the conservation of many species, the Service determined 
that no unoccupied units were essential for conservation of this DPS.
    4. Comment: A peer reviewer suggested that the Eel River gravel 
bars below (i.e. downstream) of Fernbridge be included as designated 
critical habitat due to their importance as breeding habitat both 
locally, and in northern California and southern Oregon region.
    Our Response: We acknowledge the importance of the lower gravel 
bars on the Eel River to plover conservation in northern California; 
however, our data show that the pre-listing discovery of plovers on the 
Eel River system were above Fernbridge, and subsequent data from the 
mid to late 1990s indicates that most plover use was also between 
Fernbridge and the Van Duzen River. We also acknowledge that plover 
surveys outside of the area proposed for critical habitat (CA 4D) were 
inadequate during that time period. Without supporting data, we did not 
propose the lower portions of the Eel River as critical habitat.

Comments From States

    Section 4(i) of the Act states, if a State agency files comments 
disagreeing with a proposed regulation, and the Service issues a final 
regulation in conflict with the State's comments, or fails to adopt a 
regulation petitioned by a State agency, the Secretary shall submit to 
the State agency a written justification for her failure to adopt 
regulation consistent with the agency's comments or petition. Comments 
received from States regarding the proposal to designate critical 
habitat for the western snowy plover are addressed below.
    5. State Comment: The California Department of Boating and 
Waterways commented that designation of critical habitat at Dillon 
Beach would restrict and prohibit boat launching along the beach and at 
the Lawson's Landing facility, resulting in a significant fiscal 
impact.
    Our Response: Critical habitat has been designated at the proposed 
location since 1999 (64 FR 68508). The draft economic analysis for the 
proposed critical habitat rule (70 FR 48094) differs from the State's 
assessment, and concludes there is no significant economic impact at 
the proposed Dillon Beach unit. However, this unit was excluded from 
critical habitat designation under section 4(b)(2) of the Act (see 
section titled Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act).
    6. State Comment: The Oregon Department of Fish and Wildlife (ODFW) 
supports the proposed designations in occupied units with the exception 
of unit boundaries for OR 8A and OR 10A. The State would like those 
unit boundaries to more closely coincide with the State's draft HCP. 
Additionally, ODFW proposes designation of Bayocean and Clatsop River 
Spit as critical habitat.
    Our Response: Where possible, unit boundaries have been adjusted to 
conform more closely to the management boundaries presented in the 
State's draft HCP. Bayocean Spit (OR 3) is designated as critical 
habitat. We believe that ODFW was referring to the Columbia River Spit 
regarding their comment on the Clatsop River Spit because of the 
underlying federal ownership at that location. We are not designating 
the Columbia River Spit (subunit OR 1A in the proposed rule) because it 
was determined not to be essential to the conservation of the species.
    7. State Comment: The Oregon Parks and Recreation Department also 
generally supported designation of the proposed units; however, 
believes that only the occupied units should be designated to conform 
to the State's HCP effort.
    Our Response: We have made adjustments to our occupied proposed 
units to have them more closely aligned with the State's HCP effort.

Comments Related to Previous Federal Actions, the Act, and Implementing 
Regulations

    8. Comment: Several commenters noted that the Service has pending 
action on the 12-month finding for a petition to delist the Pacific 
Coast WSP as a threatened species.
    Our Response: We are currently in the process of completing our 
status review for this species. The court's deadline for completing 
this designation does not permit us to take into account whatever 
actions, if any, might ultimately result from our status review. If we 
conclude that the species remains in need of the protections of the 
Act, the critical habitat designated here will remain in place. If we 
determine that the species is not in need of the protection of the Act, 
and ultimately remove it from the list, then this critical habitat 
designation would be vacated.
    9. Comment: Several commenters indicated that the Service was 
violating the National Environmental Policy Act (NEPA) by not preparing 
an environmental assessment or environmental impact statement on the 
proposed designation of critical habitat for the Pacific Coast WSP.
    Our Response: It is our position that we do not need to comply with 
NEPA in connection with designating critical habitat under the Act 
outside the jurisdictional areas of the Tenth Circuit Court. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld by the Ninth Circuit Court (Douglas County v. Babbitt, 48 F.3d 
1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996)).
    10. Comment: A commenter stated that the Service's contention that 
several areas could be excluded because ``existing management is 
sufficient to conserve the species'' is incorrect. They state that 
areas where management activities are being implemented to conserve the 
plover by definition ``require special management

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considerations or protection.'' Otherwise, management activities would 
not have been implemented (e.g., Center for Biological Diversity v. 
Norton, 240 F. Supp 2d 1090 (D. Az. 2003)). They also state that 
excluding areas under section 4(b)(2) based on the Service's conclusion 
that the benefits of designating any area as critical habitat is 
insignificant, is also incorrect. They maintain that critical habitat 
designation can provide significant protection to a species' habitat, 
particularly as that habitat pertains to recovery (as opposed to mere 
survival) (see Natural Resources Defense Council v. Department of 
Interior, 113 F. 3d 1121, 1125-1127 (9th Cir. 1997); Conservation 
Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280, 1285-1286 (D. Ha. 
1998)).
    Our Response: Rationale for any exemptions and exclusions of 
particular areas have been included in this document. We believe that 
the commenter has oversimplified the process by which lands are 
determined to be included, exempted, or excluded from a critical 
habitat determination. It is incorrect to state that the Service views 
the all benefits of designating critical habitat in any particular area 
as insignificant. Our analyses under section 4(b)(2) of the Act weigh 
the benefits of exclusion against the benefits of inclusion and 
determine within any particular area whether it is appropriate to 
exclude.
    11. Comment: A commenter disagreed with the statement in the 
proposed rule, that ``In 30 years of implementing the Act the Service 
has found that the designation of statutory critical habitat provides 
little additional protection to most listed species * * *'' The 
commenter stated that the proposal includes absolutely no evidence to 
bolster these assertions, which are inconsistent with recent, 
controlling judicial decisions, congressional intent, and sound 
science. They asserted that the fact that the Service's critical 
habitat decisions are driven by lawsuits and court-ordered deadlines is 
irrelevant to the Service's mandatory obligation to designate critical 
habitat for the plover and other listed species. They also assert that 
the Service's budget requests typically fall short of the amount of 
money necessary to address the backlog of listing and critical habitat, 
and that limited resources should not be used as an excuse for not 
designating critical habitat.
    Our Response: Comment noted. As discussed in the sections 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species,'' ``Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act,'' and ``Procedural and Resource 
Difficulties in Designating Critical Habitat'' and other sections of 
this and other critical habitat designations, we believe that, in most 
cases, conservation mechanisms provided through section 7 
consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative 
programs with private and public landholders and tribal nations provide 
greater incentives and conservation benefits than does the designation 
of critical habitat.
    12. Comment: A commenter stated that the Service improperly 
excluded habitat areas that are essential to the conservation of the 
species and that were included in the 1999 designation because they did 
not qualify based on either the criteria for breeding sites or the 
criteria for wintering sites. The Service failed to provide an adequate 
explanation of these criteria or any justification for the application 
of the criteria. Any areas included in the 1999 designation that are 
not included in the proposed designation must be identified and the 
reasons for the reversal must be explained. They state that an agency 
changing a prior decision must apply a reasoned analysis.
    Our Response: The Service in issuing this new designation of 
critical habitat for the West Coast WSP conducted a new evaluation in 
order to determine what habitat features are essential. Further, new 
information has become available since the previous designation of 
critical habitat. We do not believe it is necessary to identify all 
changes from the previous CH designation; this new designation 
supercedes the previous designation. We also believe that a reasoned 
analysis is provided to justify the final designation of critical 
habitat for this population.

Comments Related to Site-Specific Areas and Unoccupied Areas Identified 
for Possible Inclusion

    13. Comment: One commenter stated that the Service's assertion that 
human activity is the primary threat to plovers is erroneous as animal 
predators are more responsible for plover kills. The commenter opines 
that the Service should focus its efforts on predator controls over 
global land use and development restrictions. Another commenter states 
that human activity reduces the adverse effects of predators and 
increases the plover's success.
    Our Response: We agree with the commenter that predators may 
directly kill and injure more plovers than humans do. However, we don't 
agree that human activity in an area reduces the adverse effects of 
predators on plovers. Red foxes, crows, and ravens all may be equally 
or more effective at preying upon plovers in areas which are subject to 
human activity; plovers in contact with humans are probably more likely 
to be flushed from their nests and subject to subsequent predation. We 
do agree that a reduction of predation is beneficial to plovers; nest 
exclosures, predator-proof trash receptacles, and both lethal and non-
lethal control of predators have been successful in reducing the 
impacts of predators on plover reproduction and survival. We believe 
that effective conservation measures for enhancing reproduction and 
survival can include a combination of actions to reduce both predator 
and human effects, depending upon the specific threats which need to be 
addressed.
    14. Comment: Two commenters recommended that Clatsop Spit (OR-1) be 
considered occupied because the Necanicum River Spit (OR-1B) had 
confirmed breeding plovers in 2000 and 2002.
    Our Response: Our definition of occupancy required that the unit be 
occupied by snowy plovers at the time of listing. The definition of 
critical habitat in the ESA refers to habitat occupied at the time of 
listing, and Congress has established different criteria for 
designating habitat not occupied at the time of listing. Monitoring 
data from 1991 to 1995 indicate that the area in question was likely 
unoccupied in 1993 at the time of the plover's listing. Consequently, 
critical habitat units that were unoccupied during that period, but 
later occupied, were considered unoccupied for the purposes of this 
designation. The units described above were not designated as critical 
habitat because they were not found to be essential to the conservation 
of the species.
    15. Comment: One commenter believed that Sand Lake North (OR-5A) 
should not be included in the critical habitat designation because it 
was viewed as having little recovery benefit in the draft Oregon coast-
wide Habitat Conservation Plan (DHCP) process.
    Our Response: We agree with the commenter. Sand Lake North (OR-5A) 
has not been designated as critical habitat.
    16. Comment: Three commenters recommended adjusting the northern 
boundary of the Siltcoos River Spit unit (OR-8A) to correspond with the 
edge of the dry sand nesting season restriction that is approximately 
0.6 mile (0.96 kilometer) north of the Siltcoos River

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mouth. A separate commenter noted that the ``breach'' just north of the 
Siltcoos River is a winter site that warrants special management 
consideration.
    Our Response: We agree with the commenters, and have adjusted the 
northern boundary of the critical habitat unit to correspond with the 
2005 snowy plover management area.
    17. Comment: One commenter suggested adjusting the southern 
boundary of the Dunes Overlook/Tahkenitch Creek Spit (OR-8B) critical 
habitat unit to match the off-highway vehicle closure boundary.
    Our Response: We agree with the commenter and have made this 
adjustment.
    18. Comment: One commenter recommended that Tenmile Creek Spit (OR-
8D) be reduced in size to no more than 100 feet north and 100 feet 
south of Tenmile Creek to maintain the current population and no more 
than 100 yards north and south to accommodate recovery.
    Our Response: We did not modify the critical habitat designation. 
Reducing the size of this critical habitat unit would reduce 
protections afforded by the designation to highly mobile chicks during 
the rearing period, and to nesting and wintering adults.
    19. Comment: Two commenters suggested the southern boundary of Coos 
Bay North Spit (OR-9) be moved from \1/3\ to \1/2\ mile north of the 
jetty because western snowy plovers do not nest on the beach in that 
area. Another commenter recommended that we move the northern boundary 
of OR-9 about \1/4\ mile south of the New Carrissa because western 
snowy plovers do not nest on the beach in that area.
    Our Response: We did not make the requested adjustment. Reducing 
the size of this critical habitat unit would reduce protections 
afforded by the designation to highly mobile chicks during the rearing 
period, and to nesting and wintering adults.
    20. Comment: Two commenters wanted to exclude the sand road behind 
the foredune in OR-9 as this is used for recreation and access by Corps 
of Engineers.
    Our Response: The foredune road at Coos Bay North Spit (OR-9) 
currently bisects a large habitat restoration (HRA) area that is 
managed and maintained as a breeding area. The management of the site 
includes closing the foredune road from 15 March to 15 September each 
year to reduce human disturbance and to facilitate brood movement from 
the HRA to the beach. Two alternate routes are available to access the 
north jetty, both of which avoid the HRA. These alternate routes are 
suitable to accommodate routine use. Consequently, we did not modify 
the designation in response to the commenters' suggestion.
    21. Comment: Three commenters suggested moving the southern 
boundary of Bandon to Floras Lake unit (OR-10A) about 0.6 miles north 
since the area immediately west of Floras Lake is managed cooperatively 
with Curry County. Another commenter wanted to reduce the size of OR-
10A to just those sites actually used by breeding snowy plovers with no 
more than a 100-yard buffer to the north and south of those sites.
    Our Response: We did not make the requested adjustments. Reducing 
the size of the critical habitat unit reduces protections afforded by 
the designation to highly mobile chicks during the rearing period, and 
to nesting and wintering adults as the Pacific Coast WSP expands with 
recovery.
    22. Comment: Many commenters (including a number of form letters) 
suggested removing the proposed Lake Earl unit (CA 1) from the final 
designation, while other commenters suggested eliminating the northern 
part, or the entire unit due to economic reasons, its narrowness, steep 
slope, and unsuitability resulting from dense European beachgrass. 
Commenters also questioned the value of designating critical habitat at 
the Lake Earl lagoon, stating that the Service has failed to show that 
nesting ever occurred at the unit's location.
    Our Response: We agree with those commenters that provided 
information regarding the unsuitability of the narrow, northern portion 
of the proposed Lake Earl unit. The boundaries of the Lake Earl unit 
have been adjusted to remove the narrow, unsuitable portion to the 
north. The unit has been expanded to the State Park boundary to the 
south, resulting in an overall reduction in the unit's size. However, 
we believe that the remainder of the unit is important geographically 
to other essential habitat areas for the conservation of the Pacific 
Coast WSP. Lake Earl was designated as critical habitat because of its 
importance as a wintering area and its potential to support significant 
breeding populations. Plovers have been observed in the Lake Earl 
lagoon system during the breeding season in 1991 (PRBO, unpublished 
data) and nesting at Lake Talawa in 1997 (Page et al. 1981). We believe 
the economic impact presented by commenters is overstated because the 
current importance of the unit to plovers is based primarily on its 
utility as wintering habitat. Impacts to OHV and other recreational 
uses are minimal because much of the revised unit is difficult to 
access in winter due to the open breach of the Lake Earl lagoon.
    23. Comment: One commenter states that the Arcata Fish and Wildlife 
Office has failed to meet with the representatives and citizens of Del 
Norte County to discuss how critical habitat designation may restrict 
recreational use, reduce land values, and effect the breaching of 
lakes.
    Our Response: Staff from the Arcata Fish and Wildlife Office 
provided a presentation on the proposed critical habitat and answered 
questions at a Del Norte County Board of Supervisors (Board) meeting on 
March 8, 2005. The Arcata office held an additional public meeting in 
the Board's chambers on June 9, 2005, to discuss issues with the public 
regarding critical habitat designation. At both meetings, staff stated 
that restrictions applied to recreation and other uses within suitable 
plover habitat are dependant on the managing entity's actions, and are 
usually implemented in an effort to avoid take of a listed species 
rather than as a result of critical habitat designation. Service staff 
also stated that they are not qualified to make economic determinations 
regarding land values, and advised the Board and meeting participants 
to review the economic analysis when it became available. Service staff 
also discussed their January 05, 2005 biological/conference opinion for 
the 10-year Permit to breach the Lake Earl sandbar. In that biological 
opinion, no restrictions were imposed as a result of the proposal to 
designate critical habitat at the breach site (Section 7 consultation 
8-14-05-2577).
    24. Comment: A few commenters believed that the Clam Beach/Little 
River subunit should not be designated as critical habitat because of 
impacts to recreational uses and the resultant impacts to the local 
economy. One commenter mentioned that he had in his possession an 
informal survey support the impacts attributed to plover management 
activities.
    Our Response: The draft Economic Analysis does not attribute a 
significant fiscal impact to designating critical habitat at the Clam 
Beach/Little River subunit (CA 3A). Additionally, the Humboldt County 
Public Works Department has stated that visitation is increasing at 
Clam Beach County Park (within subunit CA 3A), further indicating that 
visitor use is not significantly affected by plover management or 
potential critical habitat designation.

[[Page 56975]]

    25. Comment: Many people (including signers of several petitions 
and form letters) commented on the proposed Dillon Beach (CA 7) unit. 
Overall, six supported designation of the unit; 14 did not state their 
position but requested information or public hearings, or suggested 
foci for the economic assessment; and the rest were opposed to the 
designation. Of those opposed, all but three indicated concern over 
loss of access to the beach. Other concerns raised included potential 
negative impacts to small businesses and local property values due to 
loss of beach access (94 commenters); and a perception that the 
proposed unit is not important to WSP conservation since snowy plovers 
do not nest there (458 commenters). People also disputed the 
conservation importance of the site, claiming that some other site 
would be better (39 commenters), and that the plovers are doing well 
enough at Dillon Beach to make critical habitat designation unnecessary 
(39 commenters). Four commenters pointed out that the identification of 
humans and pets as potential threats in the unit description implies an 
intent to restrict access by humans and pets. One hundred eight 
commenters requested a public workshop or hearing. Additional points 
raised included a concern that designation would influence state or 
local agencies to restrict recreational activities or land-use permits 
in the area. One commenter also argued that since plovers from outside 
the listed coastal population over winter on California beaches, there 
is no way to know whether those at Dillon Beach are from the listed or 
unlisted population.
    Our Response: This unit was excluded from critical habitat 
designation under section 4(b)(2) of the Act, primarily based upon the 
landowner's willingness to enter a partnership ensure conservation (see 
section titled Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act). We identified the Dillon 
Beach site as essential to the conservation of the species because it 
has the essential habitat features, and because surveys have found 
higher populations of wintering plovers there than any other coastal 
site north of San Francisco (Page in litt. 2003). Adult over wintering 
survival is essential to the recovery of the population (Nur et al 
1999). The surveys have also consistently noted numerous plovers banded 
as chicks at other coastal beaches, indicating that all or a 
substantial portion of plovers at the site are from the listed 
population (Watkins, in litt. 2005). In response to the requests for a 
public workshop or hearing, we hosted a well-attended public workshop 
in the area on February 14th, 2005, where these points were explained.
    26. Comment: Several people commented on the units proposed for 
Sonoma, Marin and San Francisco Counties. One comment was on behalf of 
the Pt. Reyes National Seashore in support of the designation. Another 
was written at the public workshop held for Dillon Beach, and was 
generally supportive. A third letter provided information regarding 
pets at Limantour Spit (CA 9) but was otherwise neutral. The final two 
letters were neutral but encouraged us to include additional areas; 
specifically Ocean Beach, San Francisco County, and Salmon Creek and 
Doran Spit, Sonoma County.
    Our Response: We appreciate the information and support provided, 
and support the habitat restoration measures outlined by the Pt. Reyes 
National Seashore. We have decided not to include the suggested 
additional areas because they do not meet our three criteria from the 
Methods section: They do not support either sizeable nesting 
populations or wintering populations, nor do they provide unique 
habitat or facilitate genetic exchange between otherwise widely 
separated units. Although we do not consider these areas essential for 
recovery, we do consider them important, and will continue to review 
projects in these areas that might affect WSP as required by sections 7 
and 10 of the Act.
    27. Comment: One commenter requested the Service exclude, under 
section 4(b)(2) of the Act, certain lands within the Oceano Dunes State 
Vehicular Recreation Area (ODSVRA), from the designation of critical 
habitat for the western snowy plover for economic and other reasons. 
The commenter suggested that because no direct public access exists 
from the south, the structure of the park requires vehicles to drive 
along the shoreline, through areas proposed for critical habitat, to 
access areas of the dunes used by off-road vehicles.
    Our Response: In the final rule, we have removed the heavily 
disturbed open riding area of the ODSVRA from the entrance of the park 
and extending to the southern exclosure. The remainder of this unit was 
excluded from critical habitat designation under section 4(b)(2) of the 
Act based upon its high economic costs (see section titled Application 
of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act).
    28. Comment: The same commenter stated that economic costs of 
inclusion (at ODSVRA) are great.
    Our Response: This unit was excluded from critical habitat 
designation under section 4(b)(2) of the Act based upon its high 
economic costs (see section titled Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    29. Comment: The same commenter pointed out that conservation 
measures have been implemented at ODSVRA that have resulted in an 
increase in the number of nesting western snowy plovers, as well as an 
increase in their fledge rate, at this site.
    Our Response: We agree with the commenter that conservation 
measures implemented at ODSVRA have been very effective, resulting in 
increased numbers of nesting western snowy plovers. Consequently, 
during the 2004 nesting season, ODSVRA supported approximately 4.6 
percent of the coastal population of western snowy plovers. Of the 147 
nests located at this site in 2004, 95 percent were found within the 
areas managed for western snowy plovers (State Parks 2004).
    30. Comment: The same commenter stated that State Parks is 
currently preparing a Habitat Conservation Plan (HCP) for the San Luis 
Obispo Coast District including the ODSVRA.
    Our Response: We are aware that State Parks is preparing a draft 
HCP for this area. It is not our policy to exclude areas from critical 
habitat based upon management plans which have not yet been made 
available for our review. However, this unit was excluded from critical 
habitat designation under section 4(b)(2) of the Act based upon its 
high economic costs (see section titled Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    31. Comment: Two commenters requested exclusion of three parcels 
(identified as the McDonald site (16.2 acres), the Sterling site 
(approximately 7 acres), and the Lonestar site (39 acres)) along the 
coastline of Sand City from critical habitat for the western snowy 
plover, stating that a 1996 Memorandum of Understanding (1996 MOU) 
between the California Department of Parks and Recreation, Monterey 
Peninsula Regional Parks District, City of Sand City, and Sand City 
Redevelopment Agency established a plan that ``* * * would actively 
manage (western snowy plover)/human interaction, thus maximizing the 
likelihood of (western snowy plover) recovery * * *.''
    Our Response: We have reviewed the 1996 MOU. At no point does it 
mention

[[Page 56976]]

western snowy plovers or their management. It does state that the 
signatories ``desire'' to ``(s)upport efforts to restore sand dunes and 
associated dune vegetation and habitat'' and ``(c)reate and preserve a 
north/south habitat corridor for endangered and threatened species''. 
However, the 1996 MOU does not outline any specific actions to meet the 
habitat needs of western snowy. However, this unit was excluded from 
critical habitat designation under section 4(b)(2) of the Act based 
upon its high economic costs (see section titled Application of Section 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    32. Comment: Two commenters requested exclusion of three parcels 
(as described above) along the coastline of Sand City from critical 
habitat for the western snowy plover, stating that a habitat 
conservation plan (HCP) being developed for the area is likely to 
assist in the recovery of the species and that designation of critical 
habitat within the subject parcels could disrupt the HCP planning 
process.
    Our Response: We are available to assist non-federal landowners in 
development of HCPs that address listed species, including the western 
snowy plover. However, the ongoing development of a draft habitat 
conservation plan does not assure that the plan will be adequate or 
implemented. This unit was excluded from critical habitat designation 
under section 4(b)(2) of the Act based upon its high economic costs 
(see section titled Application of Section 3(5)(A) and 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act).
    33. Comment: A commenter requested exclusion of three parcels (as 
described above) along the coastline of Sand City from critical habitat 
for the western snowy plover, stating that there would be little 
benefit to designating critical habitat within the subject parcels 
(largely because the commenter believes that there would be no 
consultation under section 7 of the Act for activities within those 
parcels).
    Our Response: This unit was excluded from critical habitat 
designation under section 4(b)(2) of the Act based upon its high 
economic costs (see section titled Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act). The primary 
benefit of any critical habitat with regard to activities that require 
consultation pursuant to section 7 of the Act is to ensure that the 
activities will not destroy or adversely modify designated critical 
habitat. We believe that the commenter's conclusion that activities 
within the subject parcels would not require section 7 consultation(s) 
is premature. At a minimum, the Service would be required to conduct an 
internal section 7 consultation before any incidental take permit could 
be issued through the HCP process. Any other action authorized, funded, 
or carried out by a Federal agency that may affect a listed species 
would also require section 7 consultation.
    34. Comment: A commenter requested exclusion of three parcels along 
the coastline of Sand City (as described above) from critical habitat 
for the western snowy plover, stating that designation of critical 
habitat within the subject parcels would have adverse economic effects 
on the City of Sand City by preventing future development activities 
within the subject parcels.
    Our Response: This unit was excluded from critical habitat 
designation under section 4(b)(2) of the Act based upon its high 
economic costs (see section titled Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    35. Comment: A commenter requested exclusion of three parcels (as 
described above) along the coastline of Sand City from critical habitat 
for the western snowy plover, stating that because the subject parcels 
account for only approximately 20 percent of the Sand City coastline 
and represent marginal habitat, that their development would not impede 
recovery of the species.
    Our Response: The majority of documented western snowy plover nests 
along the Sand City coastline have occurred within the three subject 
parcels (Noda in litt. 2003). In addition to breeding habitat, Sand 
City beaches have provided habitat for wintering western snowy plovers 
(Noda in litt. 2003). However, this unit was excluded from critical 
habitat designation under section 4(b)(2) of the Act based upon its 
high economic costs (see section titled Application of Section 3(5)(A) 
and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    36. Comment: One commenter requested the Service minimize the areas 
of the Nipomo Dunes and Morro Bay designated as critical habitat for 
the ``coastal plover''.
    Our Response: This unit was excluded from critical habitat 
designation under section 4(b)(2) of the Act based upon its high 
economic costs (see section titled Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    37. Comment: One commenter suggested that two beaches in Santa 
Barbara County (East Beach and the breakwater Sand Spit in Santa 
Barbara Harbor) should be included in the final rule. The commenter 
also stated that these two sites were included in the 1999 final rule, 
but were excluded in our proposed rule without explanation. The 
exclusion of these two beaches without proper documentation and 
analysis is unsupported.
    Our Response: Our current designation of critical habitat is 
different from the 1999 rule in two primary ways. In this designation, 
we utilized a different methodology for determining essential areas, 
and we relied upon additional scientific information which was not 
available in 1999. Thus, this rule, while similar in many respects to 
that in 1999, is a new designation, and does not designate the same 
areas.
    38. Comment: Several commenters noted a discrepancy between the 
description of subunit CA 19A and the map for this subunit. The subunit 
is described as extending 6.1 mi (9.8 km) along the coast from the 
north jetty of the Channel Islands harbor. However the map of this 
subunit (Map 54) depicts it as starting about 1 mile north of the 
jetty. The commenters noted that the area immediately north of the 
jetty is known as Hollywood Beach and is an ``active critical habitat 
area of the western snowy plover.''
    Our Response: Although the description of subunit CA 19A in the 
proposed rule included the Hollywood Beach area, an error was made 
during the preparation of the maps and Hollywood Beach was 
inadvertently not shown. We have now corrected that error, and 
Hollywood Beach is included in this final designation for the plover.
    39. Comment: A commenter pointed out that, although the 2004 
proposed rule states that all 61 ac proposed for designation at unit CA 
13 (Pt. Sur Beach) are privately owned, a portion of the 61 ac is 
actually state lands. If the intent of the critical habitat designation 
is only to include private lands, then the commenter objects because 
the habitat features essential for the conservation of the plover are 
equally present in both the public and private portions of the unit and 
both public and private lands should be included.
    Our Response: A table in the proposed rule (69 FR 75608) 
erroneously listed unit CA 13 as being private land. In actuality, unit 
CA 13 is entirely made up of State-owned land as stated in the text 
description for the unit.

[[Page 56977]]

    40. Comment: A commenter stated that one of the functions of the 
jetty at the south end of subunit CA 19A is to act as a sand trap. 
Every 2 years they are required to dredge sand from this location and 
transport it farther south along to coast where there is erosion 
occurring. The commenter further noted that the biannual dredging has 
been ongoing for 40 years, and that the discontinuation of dredging 
could result in the creation of extremely hazardous conditions to 
vessels in the area. The commenter urged the Service to remove this 
sand trap area from the designation.
    Our Response: Hollywood Beach, the area north of the jetty to which 
the commenter is referring is both a nesting and a wintering area for 
snowy plovers and has been determined to contain features essential to 
the conservation of the species. Therefore, we have included it in this 
final designation. We also point out that the designation of critical 
habitat does not prevent the sand dredging from occurring. If the 
action is permitted or authorized by a Federal agency, the Service 
would likely be involved with or without the critical habitat 
designation through a section 7 consultation with the Federal agency. 
We will continue to work with dredging operators to ensure endangered 
species conservation is made compatible with the safety of all vessels.
    41. Comment: A commenter requested that two areas within or near 
the city of Morro Bay not be included in the designation. The commenter 
characterized the area south of Highway 41/Atascadero Road to Morro Bay 
Rock in subunit CA 15B as being heavily used for recreation and 
including parking lots, restrooms, lifeguard towers. The commenter also 
stated that we were in error when we said that subunit 15B is near the 
city of Morro Bay and is managed entirely by the California Department 
of Parks and Recreation. The area south of Atascadero Road is within 
the city limits and is owned and managed by the city. Similarly, the 
commenter stated we were in error when we said that the area south of 
Atascadero Road is an important breeding area supporting up to 40 nests 
each year when in fact there has never been any documentation of 
nesting or breeding in this area.
    The second area the commenter requested not be included in subunit 
CA 15B extends north from Azure Street to the north end of the subunit. 
The commenter characterizes this area as being heavily populated with 
hundreds of homes and a State campground with thousands of visitors per 
year. The commenter further noted that few nests have been observed in 
this area and only in some years does nesting occur at all in the area.
    Our Response: When we stated in the proposed rule (69 FR 75608) 
that subunit 15B was an important breeding area supporting up to 40 
nests each year, we were discussing the entire subunit, not just the 
area south of Atascadero Road. However, as no nests have been 
documented for the area south of Atascadero Road and this area is 
highly disturbed, we have removed it from the designation as not being 
essential to the conservation of the plover. The remainder of this 
subunit was excluded from critical habitat designation under section 
4(b)(2) of the Act based upon its high economic costs (see section 
titled Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act).
    42. Comment: A commenter requested that Hueneme Beach Park in 
subunit CA 19B not be included in the designation. The commenter 
characterized the park as a highly disturbed and heavily used 
recreational resource that is not appropriate for critical habitat. The 
park includes a fishing pier, picnic tables, barbeques, restaurant, 
parking lots, dog walk, and volleyball courts, and is also the location 
of biennial sand replenishment activities.
    Our Response: Based on the information provided by the commenter 
and because there are no nesting plovers in the area, we have removed 
Hueneme Beach Park from subunit CA 19B because it is highly disturbed 
and not essential to the conservation of the western snowy plover. 
However, the remainder of subunit CA 19B has been designated as 
critical habitat.
    43. Comment: A commenter requested that the Santa Barbara Harbor 
from Pt. Castillo to Salinas Creek and including the sand spit at the 
end of the breakwater be included in the critical habitat designation 
as it was in 1999.
    Our Response: Although the area to which the commenter is referring 
was included in the 1999 designation (64 FR 68508) as CA-14 unit 2--
Point Castillo/Santa Barbara Harbor Beach, we used a different 
methodology and set of criteria to determine critical habitat in the 
2004 proposal (69 FR 75608). The Point Castillo/Santa Barbara Harbor 
Beach area was not included in the 2004 proposal because it did not 
meet the criteria for critical habitat established for the designation.
    44. Comment: A commenter believes that the expansion of critical 
habitat in CA-18, Devereux Beach would be an ineffective form of 
conservation for the plover. As stated in the proposed designation (69 
FR 75608), ``In 30 years of implementing the Act, the Service has found 
that the designation of statutory critical habitat provides little 
additional protection to most listed species, while consuming 
significant amounts of available conservation resources.'' Furthermore, 
research conducted by Lafferty (2001) at Coal Oil Point indicates that 
expansion of the fenced area on the beach did not provide comparable 
gains in plover protection.
    Our Response: This unit does not represent an expansion. This area 
was included in the original 1999 critical habitat designation for the 
plover (64 FR 68508) as CA-14, unit 1--Devereux Beach. In the original 
designation, the unit contained approximately 57 ac, while in the 2004 
proposed rule, the unit is only 36 ac. The referenced fenced area is 
for the protection of nesting plovers. However, nesting plovers may 
forage over the entire beach and plovers also winter over the entire 
beach. Therefore, we have designated Devereux Beach as critical habitat 
for the plover, not just the area that is fenced to protect nesting 
plovers.
    45. Comment: Another commenter noted that the California Coastal 
Commission has banned dogs from Devereux Beach (unit CA 18) where 
critical habitat has been designated and that the area designated at 
Devereux Beach should be reduced.
    Our Response: Devereux Beach is both a plover breeding area and a 
wintering area, with as many as 360 wintering birds. Unit CA 18 also 
contains the physical and biological features essential to the 
conservation of the species. Therefore, we have designated 36 ac in 
this area as critical habitat for the plover, which is reduced from the 
approximately 57 ac designated in this area in 1999 (64 FR 68508).
    46. Comment: Los Padres National Forest concurred with the decision 
of the Service not to include in the critical habitat designation 
location CA-69 (San Carpoforo Beach) from the draft recovery plan for 
the western snowy plover. San Carpoforo Beach is a very small beach 
that is occupied mainly by a few (about 35) wintering plovers.
    Our Response: We concur. San Carpoforo Beach was not included in 
the critical habitat designation because it did not meet the criteria 
we set forth in this final designation.
    47. Comment: One commenter applauded the Service for designating 
critical habitat for the plover in San Luis Obispo, Santa Barbara, and 
Ventura Counties, but also stated that all areas occupied by plovers 
should be designated.

[[Page 56978]]

    Our Response: The Act states, at section 3(5)(C), that except in 
particular circumstances determined by the Secretary, critical habitat 
shall not include the entire geographical area which can be occupied by 
the threatened or endangered species. We have designated habitat that 
contain sufficient features essential for the conservation of the 
species.
    48. Comment: One commenter asked that Morro Bay's sandspit and 
beach [CA 15C] not be designated.
    Our Response: This subunit was excluded from critical habitat 
designation under section 4(b)(2) of the Act based upon its high 
economic costs (see section titled Application of Section 3(5)(A) and 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act).
    49. Comment: One commenter believed that San Buenaventura Beach 
should be included as it was in the 1999 designation.
    Our Response: Although the area to which the commenter is referring 
was included in the 1999 designation, we used a different methodology 
and set of criteria to determine critical habitat in the 2004 proposal 
(69 FR 75608). The San Buenaventura Beach area was not included because 
it did not meet the criteria for critical habitat established for the 
designation.
    50. Comment: Two commenters stated that, since the criteria used to 
determine critical habitat for the western snowy plover are improper, 
those areas in San Luis Obispo, Santa Barbara, and Ventura Counties 
that were included in the 1999 designation but excluded in the 2004 
proposal (Arroyo Hondo, Arroyo Laguna, Torro Creek, Jalama, Point 
Castillo/Santa Barbara Harbor, Carpinteria Beach, and San Buenaventura) 
should be included as critical habitat. These beaches should be 
included in the final designation as they are utilized by the species 
for wintering, they contain the identified primary constituent elements 
that may require special management, and the sites are essential to the 
survival and recovery of the plover.
    Our Response: Although the areas to which the commenters are 
referring were included in the 1999 designation, we used a different 
methodology and set of criteria to determine critical habitat in the 
2004 proposal (69 FR 75608). These areas were not included in the 2004 
proposal because they did not meet the criteria for critical habitat 
established for the designation.
    51. Comment: A commenter stated that the Guadalupe/Nipomo Dunes 
National Wildlife Refuge should be included in the final designation 
and that the Service's exclusion of this area because it is subject to 
a ``plover management plan'' that has undergone section 7 review was 
improper. No information was provided on the management plan to 
determine whether or not the plan provides a conservation benefit or 
otherwise meets the Service's criteria for adequate plans. In addition, 
the fact that the plan has undergone section 7 consultation does not 
demonstrate that the plan provides any benefits for the plover. The 
Service also failed to adequately balance the benefits of inclusion vs. 
the benefits of inclusion for the area when it was excluded.
    Our Response: We have now included more detailed information on the 
Guadalupe/Nipomo Dunes National Wildlife Refuge plover management plan 
in this final rule. The refuges meet our criteria for management plans. 
See the Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under 
Section 4(b)(2) of the Act section below for a detailed discussion of 
our exclusion of this refuge.
    52. Comment: One commenter noted two areas in Orange County that 
were not proposed for critical habitat but are used by wintering 
plovers and constitute high quality habitat. One area is Surfside Beach 
in northern Orange County and the other is Newport Beach between Balboa 
Pier and the entrance to Newport Bay.
    Our Response: Snowy Plovers were not discovered using these sites 
until the fall of 2004. We recognize that both locations support high 
quality habitat with large concentrations of snowy plovers, and have 
the potential to support breeding birds. However, the Service did not 
determine these areas to be essential to the conservation of the DPS 
and they were not designated as critical habitat. We are working with 
local jurisdictions and managers to reduce the threats to snowy plovers 
at these sites.
    53. Comment: Two commenters stated that the Subunit CA 21D, Hermosa 
State Beach, is located in a heavily populated urban environment and 
should not be considered critical habitat. They also expressed concern 
over future restrictions on beach use.
    Our Response: Hermosa Beach annually supports a relatively large 
wintering flock of snowy plovers (69 FR 75627). This flock persists 
despite the heavy recreational use of the beach area. Nearly all 
beaches in southern California are subject to heavy recreational use. 
To restrict snowy plovers to beaches without heavy recreational use 
would limit the