Endangered and Threatened Wildlife and Plants; Amended Designation of Critical Habitat for the Wintering Population of the Piping Plover, 33703-33721 [06-5192]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 112 (Monday, June 12, 2006)]
[Proposed Rules]
[Pages 33703-33721]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5192]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU48


Endangered and Threatened Wildlife and Plants; Amended 
Designation of Critical Habitat for the Wintering Population of the 
Piping Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend 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 1,827 
acres (ac) (739 hectares (ha)) fall within the boundaries of the 
proposed amended critical habitat designation, located in Dare and Hyde 
counties, North Carolina.

DATES: We will accept comments from all interested parties until August 
11, 2006. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by July 27, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of the following methods:
    1. You may submit written comments and information to Pete 
Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh 
Fish and Wildlife Office, P. O. Box 33726, Raleigh, North Carolina 
27636-3726.
    2. You may hand-deliver written comments to our office, at Raleigh 
Field Office, 551-F Pylon Drive, Raleigh, North Carolina 27606.
    3. You may send comments by electronic mail (e-mail) to 
ncplovercomments@fws.gov. Please see the ``Public Comments Solicited'' 
section under SUPPLEMENTARY INFORMATION for file format and other 
information about electronic filing.
    4. You may fax your comments to 919-856-4556.
    5. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Raleigh Fish and Wildlife Office, 551-F Pylon Drive, 
Raleigh, North Carolina 27606 (telephone 919-856-4520).

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, 
Raleigh Fish and Wildlife Office, telephone 919-856-4520, facsimile 
919-856-4556.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. We particularly 
seek comments concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of 
wintering piping plover habitat in North Carolina, and what areas 
should be included in the designation that were occupied at the time of 
listing that contain the features that are essential for the 
conservation of the species and why, and what areas were not occupied 
at the listing is essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (6) Whether our determination that areas identified as not being in 
need of special management is accurate; and
    (7) Information to assist the Secretary of the Interior in 
evaluating habitat with physical and biological features essential to 
the conservation of the piping plover on Cape Hatteras National 
Seashore, administered by the National Park Service, based on any 
benefit provided by the Interim Protected Species Management Strategy/
Environmental Assessment (Interim Strategy) to the conservation of the 
wintering piping plover.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of

[[Page 33704]]

several methods (see ADDRESSES section). Please submit e-mail comments 
to ncplovercomments@fws.gov in ASCII file format and avoid the use of 
special characters or any form of encryption. Please also include 
``Attn: Wintering Piping Plover Critical Habitat'' in your e-mail 
subject header and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, contact us directly by calling our 
Raleigh Fish and Wildlife Office at phone number 919-856-4520. Please 
note that the e-mail address ncplovercomments@fws.gov will be closed 
out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment, but you should be aware that the Service may be required to 
disclose your name and address under the Freedom of Information Act. 
However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the Raleigh 
Fish and Wildlife Office (see ADDRESSES).

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat, but it does not 
require specific actions to restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,312 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,312 
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, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, 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.

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, 
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 limited ability to provide for 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 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, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the

[[Page 33705]]

economic effects and the cost of requesting and responding to public 
comment, and in some cases the costs of compliance with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These costs, 
which are not required for many other conservation actions, directly 
reduce the funds available for direct and tangible conservation 
actions.

Background

    In this proposed rule, it is our intent to discuss only those 
topics directly relevant to the amended designation of critical habitat 
for the wintering population of piping plover in North Carolina. For 
more information on piping plover wintering critical habitat, refer to 
the final rule designating critical habitat for the wintering 
population of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038).
    The piping plover is a small, pale-colored shorebird that breeds in 
three separate areas of North America--the Northern Great Plains, the 
Great Lakes, and the Atlantic Coast. The piping plover winters in 
coastal areas of the United States from North Carolina to Texas, along 
the coast of eastern Mexico, and on Caribbean islands from Barbados to 
Cuba and the Bahamas (Haig and Elliott-Smith 2004). Information from 
observation of color-banded piping plovers indicates that the winter 
ranges of the breeding populations overlap to a significant degree. 
Therefore, the source breeding population of a given wintering 
individual cannot be determined in the field unless it has been banded 
or otherwise marked.
    Piping plovers begin arriving on the wintering grounds in July, 
with some late-nesting birds arriving in September. A few individuals 
can be found on the wintering grounds throughout the year, but 
sightings are rare in late May, June, and early July. Migration is 
poorly understood, but a recent study suggests that plovers use inland 
and coastal stopover sites when migrating from interior breeding areas 
to wintering grounds (V.D. Pompei and F. J. Cuthbert, unpublished 
data). Concentrations of spring and fall migrants also have been 
observed along the Atlantic Coast (USFWS 1996). In late February, 
piping plovers begin leaving the wintering grounds to migrate back to 
breeding sites. Northward migration peaks in late March, and by late 
May most birds have left the wintering grounds (Haig and Elliott-Smith 
2004). North Carolina is uniquely positioned in the species' range, 
being the only State where the piping plover's breeding and wintering 
ranges overlap and the birds are present year-round. A complete 
description of the biology and ecology of the piping plover can be 
found in Haig and Elliott-Smith (2004).

Previous Federal Actions

    The piping plover was listed 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 (which include 
the State of North Carolina) are listed as threatened under the Act.
    On July 10, 2001, we designated 137 areas along the coasts of North 
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, 
Louisiana, and Texas as critical habitat for the wintering population 
of the piping plover (66 FR 36038). This designation included 
approximately 1,798.3 miles (mi) (2,891.7 kilometers (km)) of mapped 
shoreline and approximately 165,211 ac (66,881 ha) of mapped areas 
along the Gulf and Atlantic coasts and along margins of interior bays, 
inlets, and lagoons.
    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, North Carolina (Units NC-1, NC-
2, NC-4, and NC-5). In its November 1, 2004 opinion, the court vacated 
and remanded the designation for these units to us for reconsideration 
(Cape Hatteras Access Preservation Alliance v. U.S. Department of 
Interior (344 F. Supp. 2d 108 (D.D.C. 2004)). The court indicated that 
the descriptions of critical habitat for the four units did not 
sufficiently exclude certain hard structures and other areas that did 
not contain primary constituent elements (PCEs) and ordered us to 
demonstrate that PCEs are found on areas that are designated. Also, 
although the court did not invalidate the PCEs themselves, it ordered 
us to clarify that the PCEs may require special management or 
protection pursuant to the Act. It also found that the designation of 
critical habitat must include compliance with NEPA. Furthermore, the 
court found that our economic analysis of the critical habitat 
designation was arbitrary and capricious in that it considered the 
impact of off-road vehicles and other human use of beaches but did not 
address information in the record about the possibility of closures of 
the beaches to such use or how off-road vehicle use might be affected 
by the designation. Finally, the court also found that we may have 
omitted from the economic analysis the costs of consulting on National 
Park Service actions, and ordered us to reconsider them. This proposed 
rule will address only those four court-vacated and -remanded units 
(Units NC-1, NC-2, NC-4, and NC-5), with the exception of corrections 
to the List of Endangered and Threatened Wildlife found at 50 CFR 
17.11(h) and minor edits to the regulatory language found in 50 CFR 
17.95(b). All other areas remain as designated in the July 10, 2001, 
final critical habitat rule (66 FR 36038).
    For more information on previous Federal actions concerning the 
piping plover, refer to the final listing rule published in the Federal 
Register on December 11, 1985 (50 FR 50726), or the final rule 
designating critical habitat for the wintering population of the piping 
plover published in the Federal Register on July 10, 2001 (66 FR 
36038).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management, such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse

[[Page 33706]]

modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (i.e., areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but not known to be 
occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing rule for the species. Additional 
information sources include the recovery plan for the species, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge. All information is used in accordance with the 
provisions of section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the 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 new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b) of the Act, 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. We reviewed available 
information that pertains 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 North Carolina Wildlife Resources Commission, 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 (see final rule at 66 FR 36038). To map areas 
containing the physical and biological features determined to be 
essential to the conservation of the species (see Primary Constituent 
Elements for the Wintering Population of the Piping Plover section 
below), 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. We do not propose any areas outside the 
geographical area presently occupied by the species.
    Delineating specific locations for designation as critical habitat 
for the piping plovers is 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 proposed 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

[[Page 33707]]

legal descriptions also exclude features 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.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to, space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific primary constituent elements required for the 
wintering population of the piping plover are derived from the 
biological needs of the species, as described in the Background section 
of the final rule designating critical habitat for the wintering 
population of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038).

Primary Constituent Elements for the Wintering Population of the Piping 
Plover

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (i.e., primary constituent elements 
(PCEs)) essential to the conservation of the wintering population of 
the piping plover. All areas proposed as critical habitat for the 
wintering population of the piping plover are occupied, within the 
species' historic geographical range, and contain sufficient PCEs to 
support at least one life history function.
    In Cape Hatteras Access Preservation Alliance v. U.S. Dept of the 
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court upheld the PCEs 
identified in our July 10, 2001, final rule designating critical 
habitat for the wintering population of the piping plover (66 FR 
36038). Thus, based on the best available scientific information, we 
are not changing PCEs previously identified. They constitute the 
features that are essential for the conservation of wintering piping 
plovers. The PCEs are found in geologically dynamic coastal areas that 
support intertidal beaches and flats (between annual low tide and 
annual high tide) and associated dune systems and flats above annual 
high tide.
    Essential components (primary constituent elements) of wintering 
piping plover habitat include sand and/or mud flats with no or very 
sparse emergent vegetation. In some cases, these flats may be covered 
or partially covered by a mat of blue-green algae. Adjacent unvegetated 
or sparsely vegetated sand, mud, or algal flats above high tide are 
also essential, especially for roosting piping plovers. Such sites may 
have debris, detritus (decaying organic matter), or micro-topographic 
relief (less than 50 cm above substrate surface) offering refuge from 
high winds and cold weather. Essential components of the beach/dune 
ecosystem include surf-cast algae for feeding of prey, sparsely 
vegetated backbeach (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) for roosting and 
refuge during storms, spits (a small point of land, especially sand, 
running into water) for feeding and roosting, salterns (bare sand flats 
in the center of mangrove ecosystems that are found above mean high 
water and are only irregularly flushed with sea water) and washover 
areas for feeding and roosting. Washover areas are broad, unvegetated 
zones with little or no topographic relief that are formed and 
maintained by the action of hurricanes, storm surge, or other extreme 
wave action. Several of these components (sparse vegetation, little or 
no topographic relief) are mimicked in artificial habitat types used 
less commonly by piping plovers, but that are considered critical 
habitat (e.g., dredge spoil sites).
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions of piping plover. 
Because not all life history functions require all the PCEs, not all 
proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the wintering population of the piping plover. In some 
cases, the PCEs exist as a result of ongoing Federal actions. As a 
result, ongoing Federal actions at the time of designation will be 
included in the baseline in any consultation conducted subsequent to 
this designation.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat on certain lands in 
North Carolina that we have determined contain habitat with features 
essential to the conservation of the wintering population of the piping 
plover. As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of the wintering 
population of the piping plover, as discussed in the ``Methods'' 
section above.
    The units were delineated by compiling existing relevant spatial 
data of the unit descriptions described in our 2001 final rule 
designating critical habitat for the wintering population of the piping 
plover (66 FR 36038), generating new on-the-ground GPS base-mapping to 
refine the existing descriptions, and mapping the descriptions in such 
a manner that the units contain the PCEs (as described) and do not 
contain any structures or other features that are not identified as 
PCEs. To the maximum extent possible, unit boundaries were drawn to 
exclude manmade structures or their ancillary facilities. To ensure 
that no manmade features are included in critical habitat,

[[Page 33708]]

these features are expressly excluded by text in the Regulations 
Promulgation section of the rule. Critical habitat starts immediately 
at the edge of such features. Using the information compiled above, GIS 
was used to analyze and integrate the relevant data layers for the 
areas of interest in order to determine those areas that include PCEs. 
See ``Methods'' section above for additional discussion of mapping 
techniques.
    We excluded areas from consideration that did not contain one or 
more of the proposed PCEs or where: (1) The area was highly degraded 
and may not be restorable; (2) the area was small, highly fragmented, 
or isolated and may provide little or no long-term conservation value; 
and (3) other areas within the geographic region were determined to be 
sufficient to meet the species needs for conservation. We included 
areas containing one or more PCEs where occurrence data exists and 
where the area: (1) Provided a patchwork of the features essential for 
the conservation of the species; (2) offered dispersal capabilities or 
were in proximity to other wintering piping plover occurrences that 
would allow for survival and recolonization following major natural 
disturbance events (e.g., nor'easters, hurricanes); (3) were of 
sufficient size to maintain the physical and biological features that 
support occurrences; and (4) were representative of the historic 
geographic distribution of occupied areas that will help prevent 
further range collapse of the species. Areas are proposed based on them 
containing sufficient PCEs to support wintering piping plover life 
processes.
    Within the area (NC-1, NC-2, NC-4, NC-5) vacated and remanded to 
the Service for reconsideration in Cape Hatteras Access Preservation 
Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 
2004), we found no unoccupied areas essential to the conservation of 
the species and therefore propose no areas in North Carolina outside 
the geographical area presently occupied by the species. We are 
proposing to designate critical habitat on lands that we have 
determined were occupied at the time of listing and contain sufficient 
PCEs to support life history functions essential for the conservation 
of the species.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and containing the 
primary constituent elements may require special management 
considerations or protections. As we undertake the process of 
designating critical habitat for a species, we first evaluate lands 
defined by those physical and biological features essential to the 
conservation of the species for inclusion in the designation under 
section 3(5)(A) of the Act. Secondly, we evaluate lands defined by 
those features to assess whether they may require special management 
considerations or protection. Primary threats to the wintering 
population of piping plover that may require special management or 
protection are disturbance of foraging and roosting plovers (e.g., by 
flushing birds or disrupting normal feeding or roosting times and 
causing excessive alertness or abandonment of the area) by humans 
(e.g., walking on the beach, flying kites, shooting fireworks), 
vehicles (e.g., driving on the beach), and domestic animals (e.g., pets 
being turned loose on the beach); predation (e.g., increased numbers of 
predators that are attracted to the human presence); and disturbance to 
and loss of habitat due to uncontrolled recreational access (e.g., off-
road vehicles, pedestrians, domestic animals) and beach stabilization 
efforts (e.g., beach nourishment, sediment dredging and disposal, inlet 
channelization, construction of jetties and groins and other hard 
structures) that prevent natural coastal processes (i.e., the natural 
transfer and erosion and accretion of sediments along the ocean 
shoreline). To address the threats affecting the wintering population 
of the piping plover within each of the proposed critical habitat 
units, certain special management actions may be needed. For example, 
the high level of off-road vehicle (ORV) and pedestrian use of the 
areas, as discussed in the critical habitat unit descriptions below, 
may require managing access to piping plover foraging habitat and 
adjacent upland roosting habitat during migration and overwintering 
periods. Managing access to these foraging and roosting areas may 
assist in the protection of PCEs and piping plovers by reducing 
disturbance to PCEs potentially caused by ORV use, pedestrians, and 
pets. Managing access might also improve the available habitats for 
conservation of piping plovers.
    In addition, in evaluating areas proposed for the designation of 
critical habitat, we have determined that the following areas which 
contain the PCEs do not require special management or consideration and 
therefore are not proposed for designation. Please see ``Application of 
Section 3(5)(A) and Exclusions Under Section 4(b)(2) of the Act'' for 
additional discussion concerning our determination on these lands.
    (1) The following islands owned by the State of North Carolina 
located within or in proximity to Oregon, Hatteras, and Ocracoke 
inlets, in Dare and Hyde counties: DR-005-05 and DR-005-06 (Oregon 
Inlet, Dare County) and DR-009-03/04 (Hatteras Inlet, Dare and Hyde 
counties). These islands are specifically managed for waterbirds by the 
North Carolina Wildlife Resources Commission. The Commission has 
developed a conservation strategy that identifies the piping plover as 
a priority species needing research, survey, and monitoring efforts to 
assist in restoration and conservation efforts.
    (2) 237 ac (96 ha) of Pea Island National Wildlife Refuge (Dare 
County). The refuge has a statutory mandate to manage the refuge for 
the conservation of listed species, and a draft Comprehensive 
Conservation Plan (USFWS 2006) provides a detailed implementation plan 
which includes preserving, protecting, creating, restoring and managing 
foraging and roosting habitats for the piping plover.

Proposed Amended Critical Habitat Designation

    We are proposing four units of critical habitat in North Carolina 
for the wintering population of the piping plover. The critical habitat 
units described below constitute our best assessment, at this time, of 
the areas determined to be occupied at the time of listing, that 
contain one or more of the primary constituent elements and that may 
require special management or protection. The four areas proposed as 
critical habitat in this amendment are: Unit NC-1 Oregon Inlet, Unit 
NC-2 Cape Hatteras Point, Unit NC-4 Hatteras Inlet, and Unit NC-5 
Ocracoke Island, as described below. These units cover the same general 
areas as those vacated by Cape Hatteras Access Preservation Alliance v. 
U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), although 
they have been refined to exclude areas that do not contain the PCEs or 
require special management or protection and to reflect mapping 
techniques conducted in compliance with the court order. For ease of 
future management, these units are retaining the same naming as used in 
the July 10, 2001, critical habitat designation (66 FR 36038). In 
addition, this rule does not propose to alter or in any way amend the 
remaining 133 units of designated critical habitat that were not 
vacated by Cape Hatteras Access Preservation

[[Page 33709]]

Alliance v. U.S. Dept of the Interior, 344 F. Supp. 2d 108 (D.D.C. 
2004).
    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 1.

 Table 1.--Critical Habitat Units Proposed for the Wintering Population
                 of the Piping Plover in North Carolina.
      [Area estimates reflect all land within critical habitat unit
                              boundaries.]
------------------------------------------------------------------------
     Critical habitat unit          Land ownership       Acres/Hectares
------------------------------------------------------------------------
Unit NC-1 Oregon Inlet........  Federal..............      284.0 (114.9)
Unit NC-2 Cape Hatteras Point.  Federal..............      645.8 (261.4)
Unit NC-4 Hatteras Inlet......  Federal..............      395.6 (160.1)
Unit NC-5 Ocracoke Island.....  Federal..............      501.8 (203.0)
                                                      ------------------
    Total.....................  .....................     1827.2 (739.4)
------------------------------------------------------------------------

    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. These units contain the features essential to 
the conservation of the species. Areas within the units contain a 
contiguous mix of intertidal beaches and sand and/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 and/or mud flats above annual high tide. While no 
one portion of the proposed units contains every PCE, each unit 
contains sufficient PCEs to support life history functions essential 
for the conservation of the species.

Unit NC-1: Oregon Inlet

    Unit NC-1 is approximately 1.7 mi (2.8 km) long, and consists of 
284 ac (114.9 ha) of sandy beach and inlet spit habitat on Bodie Island 
in Dare County, North Carolina. This is the northernmost critical 
habitat unit proposed within the wintering range of the piping plover 
and is entirely within the Cape Hatteras National Seashore. Oregon 
Inlet is the northernmost inlet in coastal North Carolina, 
approximately 12 mi (19.3 km) southeast of the Town of Manteo, the 
county seat of Dare County. The proposed unit at Oregon Inlet is 
bounded by the Atlantic Ocean on the east and Pamlico Sound on the west 
and 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 primary constituent elements 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. It begins at the edge of Ramp 4 
near the Oregon Inlet Fishing Center on Bodie Island and extends 
approximately 1.7 mi (2.8 km) south to Oregon Inlet, and includes Green 
Island and any emergent sandbars south and west of Oregon Inlet. This 
unit contains the features essential to the conservation of the species 
(i.e., PCEs), as discussed above.
    As we discuss in ``Application of Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) of the Act'' below, this unit does not include 
Pea Island National Wildlife Refuge or lands owned by the State of 
North Carolina such as islands DR-005-05 and DR-005-06. In addition, 
this unit does not include the Oregon Inlet Fishing Center, NC Highway 
12, and the Bonner Bridge or its associated structures, or any of their 
ancillary facilities (e.g., parking lots, outbuildings). All of these 
features occur outside the boundary of the unit except for a small 
number of supports for Bonner Bridge, which are within the boundary but 
are excluded from critical habitat by text. Critical habitat begins 
immediately at the base of these supports.
    Consistent use by wintering piping plovers has been reported at 
Oregon Inlet dating from the mid-1960s. As many as 100 piping plovers 
were 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 (J. Stucker, University of 
Minnesota unpublished data). However, 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 ORVs 
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 ORV 
users to congregate. A recent visitor use study of the park reported 
that Oregon Inlet is the second most popular ORV use area in the park 
(Vogelsong 2003). The majority of the Cape Hatteras National Seashore 
users in this area are ORV owners and recreational fishermen. As a 
result, sandy beach and mud and sand flat habitat being proposed as 
critical habitat 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 645.8 ac (261.4 ha) 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 features essential to 
the conservation of the species (i.e., PCEs), as discussed above. This 
unit does not include the ocean groin.

[[Page 33710]]

    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 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, sandy beach and mud and 
sand flat habitat being proposed as critical habitat 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 4.7 mi (7.6 km) long, and consists of 
395.6 ac (160.1 ha) 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 the edge of Ramp 55 near the Graveyard of the 
Atlantic Museum on the western end of Hatteras Island and continues 
southwest to the beach access at the edge of 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 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 proposed unit at Hatteras Inlet includes all 
emergent sandbars within Hatteras Inlet. This unit contains the 
features essential to the conservation of the species (i.e., PCEs), as 
discussed above.
    As we discuss in ``Application of Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) of the Act'' below, this unit does not include 
lands owned by the State of North Carolina such as Island DR-009-03/04. 
In addition, the unit 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). 
All of these features occur outside the boundary of the proposed unit.
    Consistent use by wintering piping plover has been reported at 
Hatteras Inlet 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 (J. Stucker, University of Minnesota unpublished data). 
However, 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 ORVs (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). As a result, sandy beach and mud and sand flat habitat being 
proposed as critical habitat in this unit may require special 
management considerations or protection, as discussed in ``Special 
Management Considerations or Protections'' above.

Unit NC-5: Ocracoke Island

    Unit NC-5 consists of 501.8 ac (203.0 ha) 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 primary 
constituent elements 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 features essential to the conservation of 
the species (i.e., PCEs), as discussed above. 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 (J. 
Stucker, University of Minnesota unpublished data).
    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 habitat being proposed as critical habitat 
in this unit may require special management considerations or 
protection, as discussed in ``Special Management Considerations or 
Protections'' above.

[[Page 33711]]

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the PCEs to be 
functionally established) to serve the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated that may be affected and the Federal 
agency has retained discretionary involvement or control over the 
action or such discretionary involvement or control is authorized by 
law. Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed, if those actions may affect subsequently listed species or 
designated critical habitat or adversely modify or destroy proposed 
critical habitat.
    Federal activities that may affect the wintering population of the 
piping plover or its designated critical habitat will require section 7 
consultation under the Act. Activities on State, tribal, local or 
private lands requiring a Federal permit (such as a permit from the 
Corps under section 404 of the Clean Water Act or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also continue to be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Wintering Population of the Piping 
Plover and Its Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for wintering population of the 
piping plover

[[Page 33712]]

jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of the wintering