Endangered and Threatened Wildlife and Plants; Critical Habitat Revised Designation for the Cape Sable Seaside Sparrow, 62736-62766 [07-5460]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 214 (Tuesday, November 6, 2007)]
[Rules and Regulations]
[Pages 62736-62766]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5460]



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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; Critical Habitat Revised 
Designation for the Cape Sable Seaside Sparrow; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV79


Endangered and Threatened Wildlife and Plants; Critical Habitat 
Revised Designation for the Cape Sable Seaside Sparrow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
the designation of critical habitat for the endangered Cape Sable 
seaside sparrow (Ammodramus maritimus mirabilis) under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 84,865 
acres (ac) (34,344 hectares (ha)) fall within the boundaries of the 
designation. The critical habitat is located in Miami-Dade County, 
Florida.

DATES: This rule becomes effective on December 6, 2007.

FOR FURTHER INFORMATION CONTACT: Tylan Dean, South Florida Ecological 
Services Office (see ADDRESSES); telephone 772-562-3909; facsimile 772-
562-4288. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339, 7 days a week and 24 hours a day.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only topics directly relevant to the 
revised designation of critical habitat in this rule. For more 
information on the Cape Sable seaside sparrow, please refer to the 
South Florida Multi-species Recovery Plan, available at the South 
Florida Ecological Services Web site https://www.fws.gov/verobeach, and 
the proposed rule to designate critical habitat published in the 
Federal Register on October 31, 2006 (71 FR 63980).

Previous Federal Actions

    On December 20, 2000, Biodiversity Legal Foundation filed a lawsuit 
in the U.S. District Court for the District of Columbia alleging that 
the Service had not complied with the Act by failing to issue a 12-
month finding as to how it planned to proceed with the petitioned 
revision to critical habitat and that the revision was withheld or 
unreasonably delayed under the Administrative Procedure Act (5 U.S.C. 
551 et seq.). The Court ruled that the Service complied with the Act by 
issuing the finding and was exercising reasonable discretion in 
postponing developing a proposed rule to revise critical habitat 
(Biodiversity Legal Foundation v. Norton, 285 F. Supp. 2d (D.D.C. 
2003)), but ordered the Service to specify a date on which we would 
begin work on a rule to revise critical habitat for the Cape Sable 
seaside sparrow and estimate how long the process would take. The 
Service provided a proposed schedule for revision of critical habitat 
to the Court, and on December 31, 2003, the Court embodied the 
Service's proposed timeframe in a Court Order, directing the Service to 
complete the critical habitat rule no later than October 24, 2007. For 
more information on previous Federal actions concerning the Cape Sable 
seaside sparrow, refer to the proposed critical habitat designation 
published in the Federal Register on October 31, 2006 (71 FR 63980), 
and in our notice of availability of the draft economic analysis of the 
proposed revised critical habitat published on August 17, 2007 (72 FR 
46189).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the sparrow in the proposed rule 
published (71 FR 63980), and again in the notice of availability (72 FR 
46189). On both occasions, we contacted appropriate Federal, State, and 
local agencies; Tribal interests; species' experts; and other 
interested parties and invited them to comment on the proposed rule. 
One public hearing was held on August 29, 2007, in Homestead, Florida 
during the second comment period.
    During the first comment period that opened on October 31, 2006, 
and closed on January 2, 2007, we received comments from 16 entities 
that directly addressed the proposed critical habitat designation: 5 
from peer reviewers, 1 from a Tribe, 2 from State and local 
governmental agencies, and 8 from organizations or individuals. We 
received 3 requests for a public hearing, all from entities in the 
Miami-Dade County, Florida, area. During the second comment period that 
opened on August 17, 2007, and closed on September 17, 2007, including 
the public hearing, we received comments from 28 entities that directly 
addressed the proposed critical habitat designation and/or the draft 
economic analysis: 1 from a peer reviewer, 2 from Federal agencies, 2 
from a Tribe, 4 from State and local governmental agencies, and 19 from 
organizations or individuals. Nine commenters supported the designation 
of critical habitat for the sparrow and 20 opposed the designation. 
Fifteen commenters provided suggestions or information, but did not 
indicate support or opposition to the critical habitat designation. 
Comments received were grouped into 70 issues specifically relating to 
the proposed critical habitat designation for the sparrow, and are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we made formal requests for peer reviewers from the Florida 
Fish and Wildlife Conservation Commission (FWC), the South Florida 
Water Management District (SFWMD), and the Miccosukee Tribe of Indians 
of Florida. As a result, we solicited expert opinions from nine 
knowledgeable individuals with scientific expertise that included 
sparrow biology, conservation biology, endangered species issues, 
hydrology, and/or Everglades restoration. We received responses from 
five of these experts. Four of the peer reviewers generally concurred 
with our methods and conclusions, and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. One of the peer reviewers was not in agreement with our methods 
or conclusions. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the sparrow, and addressed them in the following summary.

Peer Reviewer Comments

    (1) Comment: Critical habitat should include all locations occupied 
during point count surveys, because specific locations may be 
contiguous with the larger meta population and subsequently essential 
to the conservation of the sparrow. Connectivity between occupied 
locations is extremely important.
    Our Response: Critical habitat designation does not include all 
areas that may be used by sparrows or all areas that are important to 
sparrows. The units proposed for designation focused on areas that 
contain physical and biological features in the spatial arrangement and 
quantity that are essential to the conservation of the sparrow that 
require special management consideration or protection. Additionally, 
areas not

[[Page 62737]]

known to be occupied by sparrows that may serve to maintain 
connectivity among disjunct units are not readily identifiable, and we 
do not currently possess information about the habitat characteristics 
necessary to support movement by sparrows. Consequently, we cannot make 
the determination required by the Act to designate unoccupied habitat, 
that the area is essential to the conversation of the species. 
Therefore, such areas are not designated as critical habitat. See 
``Critical Habitat'' section below for additional information on the 
methods and criteria for designating critical habitat and the 
regulatory protections for areas designated as critical habitat, as 
well as areas outside of the designation that may be important to the 
species.
    (2) Comment: Specific information on what constitutes a typical 
sparrow territory within the marl prairie habitat type and a broad 
mention (based on Werner (1975) and Pimm et al. 2002) of the special 
foraging microhabitat patch-type used by Cape Sable seaside sparrows 
should be included along with comments on nest sites.
    Our Response: We agree that specific information on what 
constitutes a ``typical'' territory, or information on detailed 
microhabitat characteristics of foraging or nesting sites, is not 
discussed in detail. While these characteristics may be important to 
sparrows, we do not think the information presented in the publications 
referenced has been sufficiently confirmed across the full breadth of 
area, habitats, and conditions occupied by sparrows to allow us to 
characterize these features adequately. We instead chose to describe 
the habitat on a broader, more general level while discussing the 
functions the habitat must provide (e.g., structural support for nests, 
cover and refugia from predators, foraging substrate under a variety of 
hydrologic conditions).
    (3) Comment: Designating Unit 1 as critical habitat is crucial and 
well-justified to protect what historically was a major subpopulation 
(A) of the Cape Sable seaside sparrow, the restoration of which recent 
analyses suggest is essential to recovery.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding 
proposed Unit 1 outweigh the benefits of inclusion and that such 
exclusion will not result in the extinction of the species. Therefore, 
we have excluded Unit 1 from critical habitat. See ``Application of 
section (4)(b)(2) of the Act'' below for further explanation.
    (4) Comment: Unit 2 should be included in the designation as it 
provides the only area of what historic evidence suggests was an 
important habitat type for the Cape Sable seaside sparrow.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Unit 
2 outweigh the benefits of inclusion and that such exclusion will not 
result in the extinction of the species. Therefore, we have excluded 
Unit 2 from critical habitat. See ``Application of section (4)(b)(2) of 
the Act'' below for further explanation.
    (5) Comment: Cordgrass marshes should be designated as critical 
habitat to protect them for possible future reestablishment of sparrow 
populations.
    Our Response: There are two areas within the range of the Cape 
Sable seaside sparrow (Cape Sable and Ochopee) that contain cordgrass 
that are no longer occupied by sparrows. The first area is the sparrow 
habitat in Cape Sable which has been changing significantly from 
cordgrass marshes to mangroves and mud flats since a 1935 hurricane, 
and sparrows are considered to have been extirpated from this area 
since 1981 (Kushlan and Bass 1983, p. 142). The second area is Ochopee, 
for which Werner (1975, p. 42) reported that habitat occupied by 
sparrows was changing from cordgrass marshes to other species, and 
mangroves were encroaching. Sparrows were extirpated from this area by 
1981 (Kushlan and Bass 1983, p. 143), and there is little or no 
remaining suitable habitat in the area.
    The Act provides for designating areas that are occupied at the 
time of listing that contain those physical and biological features 
essential to the conservation of the species. The Act also provides for 
designating areas that are unoccupied at the time of listing when such 
areas are essential for the conservation of a listed species. For the 
sparrow, an area was considered for designation as critical habitat 
when it supports some portion of a subpopulation and meets either of 
the following criteria: (1) Possesses one or more of the primary 
constituent elements (PCEs) and was occupied at the time of listing by 
sparrows, or (2) is determined to be currently occupied by the Cape 
Sable seaside sparrow through annual surveys conducted during the 
period 1981 to present. Those areas where sparrows were recorded from 
1981 to present represent the areas that we have determined were 
occupied at the time of listing of the species. We considered 
designating units for the sparrow where it is entirely extirpated from 
those units and determined that doing so is not essential for its 
conservation.
    (6) Comment: Where are the 100,000 acres that are proposed to be 
eliminated from critical habitat and what is the justification for 
their removal?
    Our Response: The revised critical habitat is not based on the 
previous designation, and all areas of potential sparrow habitat were 
considered equally when developing this final designation. The critical 
habitat boundaries in the 1977 designation were based on section-
township-range boundaries, and only delineated relatively large, 
general areas within which sparrows were known to occur at that time. 
Consequently, many areas originally designated were never Cape Sable 
seaside sparrow habitat, such as forested areas of Long Pine Key in 
Everglades National Park, dwarf cypress forests (also Everglades 
National Park), deep water slough communities, and agricultural areas. 
These areas, therefore, are not being proposed for inclusion in the 
revised critical habitat designation, and we have instead sought to 
accurately delineate only the specific areas that were important to 
sparrows in the proposed revision. Differences may be reviewed by 
comparing the boundaries identified in this rule and in the 1977 (42 FR 
47840) rule, and a general discussion of the differences is provided in 
the section titled ``Critical Habitat Designation,'' below.
    (7) Comment: Several commentors were either for or against the 
decision to include National Park Service (NPS) and State lands as 
critical habitat.
    Our Response: We are designating critical habitat on NPS and State 
lands because these areas are within the geographical area occupied at 
the time of listing that contains the features essential to the 
conservation of the sparrow and, which may require special management 
considerations or protections. We excluded in this final decision two 
proposed units within NPS lands (Everglades National Park (ENP) and Big 
Cypress National Preserve (BCNP)), but other units within ENP remain in 
the final designation.
    (8) Comment: The conclusion that the designation will have no 
impact on Tribal lands, since none are included as critical habitat, 
can be questioned, given the inter-connectedness of land units with the 
Greater Everglades Ecosystem.
    Our Response: In the final rule, we considered potential direct and 
indirect impacts to Tribal lands and resources that might result from 
designation of critical habitat when weighing the benefits of exclusion 
and inclusion in the ``Application of Section 4(b)(2) of

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the Act'' section below. In addition, potential impacts to Tribal 
resources were described and considered in the economic analysis 
associated with the critical habitat designation.
    (9) Comment: Designation of Units 1 and 2 as critical habitat would 
sanction artificial drying of areas in ENP and flooding of other areas 
of the Everglades in perpetuity resulting in destruction of the largest 
expanse of sawgrass Everglades in existence in direct contravention to 
the Comprehensive Everglades Restoration Plan (CERP).
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Units 
1 and 2 from this final designation outweigh the benefits of inclusion, 
see ``Application of section (4)(b)(2) of the Act'' below for further 
explanation.
    (10) Comment: The hydrological management PCE (4) is based on a 
hypothesis that has not been shown to be true.
    Our Response: The specific PCEs identified for the Cape Sable 
seaside sparrow, including PCE4, are derived from the biological needs 
of the sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule (71 FR 63980). The PCEs are 
based on the best scientific data available and their scientific 
foundation is detailed in this rule and the referenced proposed rule. 
It should be noted that PCE 4 describes the hydrologic conditions that 
are required to support and maintain the vegetation composition that 
sparrows require, as well as those conditions that allow for successful 
nesting. PCE 4 is used as a basis for the evaluation during 
consultation under section 7 of the Act to determine whether a proposed 
action may result in destruction or adverse modification of designated 
critical habitat. It is not intended to be a specific objective.
    (11) Comment: PCE 4 could force the Army Corps of Engineers (USACE) 
to manage water levels in subpopulation A at unnaturally low levels 
forever, to the detriment of other areas in the Everglades ecosystem. 
The conclusion in the proposed rule that ``Water management plans 
continue to have the potential to result in damage to sparrow habitat 
in these areas, and special management of hydrologic conditions is 
necessary'' has no apparent factual or scientific basis, and is reached 
based on faulty and superficial logic, misrepresentation of the facts, 
and ignoring the blindingly obvious.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below). Regarding water 
management plans and their potential to damage to sparrow habitat, the 
Service believes this statement is accurate. The hydrologic regime 
affects sparrows indirectly through its effects on the vegetation 
community as detailed in this rule. While these effects may be a result 
of natural rainfall, such effects have also been the result of water 
management plans.
    (12) Comment: The proposed rule states that ``From 1993 to 1995, 
the sparrow population in subpopulation A declined precipitously, from 
an estimated 2,608 individuals in 1992 to 240 individuals in 1995 
(Pimm, et al. 2002, p. 70).'' This is contrary to the available 
evidence in that the precipitous decline occurred between 1992 and 1993 
when subpopulation A went from 2,608 to 432 individuals. This 
information should be revised to reflect the relative certainty and 
uncertainties that have contributed to the decline, not speculation.
    Our Response: Sparrow surveys do indicate that a large decline 
occurred between the 1992 survey and the 1993 survey. The 1994 survey 
was incomplete in the area of subpopulation A, and only approximately 
25 percent of the area was surveyed. Consequently, the number of 
sparrows counted in 1994 should not be used to characterize population 
changes. In addition, the estimates of sparrow numbers resulting from 
the point counts are recognized as incorporating a significant degree 
of uncertainty (see Pimm et al. 2002, pp. 151-160). As a result of the 
uncertainty in individual estimates, we chose to refer to sparrow 
population changes across several years, which we believe are more 
representative of sparrow population trends.
    (13) Comment: There is no scientific justification presented that 
the decline in subpopulation A resulted from the hydrologic flow 
regime, and, even if there was an abnormal increase in flows, which 
there was not, it is impossible to imagine an 84 percent drop in the 
population in one year because of increased flows alone. The decline is 
much more likely attributable to a sudden event such as a fire or 
hurricane.
    Our Response: We recognize that we will not be able to ever 
conclusively determine the cause for the observed decline of sparrow 
subpopulation A. However, the specific attribution for the observed 
decline has been the subject of several peer-reviewed journal articles 
as well as independent scientific review. In their 2000 review of 
sparrow science, Walters et al. (2000, p. 1104) indicated that ``the 
panel views as reasonable Nott et al.'s (1998) conclusion that the 
concentrated releases of water from the S-12 structures from 1992 to 
1995, above and beyond existing water depth and seasonal rainfall, 
directly led to the deep-water conditions west of Shark River Slough. 
These in turn probably caused habitat in the range of Population A to 
be unsuitable for breeding, and we conclude that this likely played a 
major role in the apparent decline of Population A.'' The panel further 
writes that ``The panel explicitly considered the possibility that 
Hurricane Andrew * * * caused the decline, especially in Population A. 
However, we find Curnutt et al.'s (1998) arguments that Andrew was not 
a primary factor in the decline of Population A to be reasonable. Most 
importantly, Population A continued to decline for years after Andrew, 
whereas Population B received only slightly less extreme wind 
conditions than did Population A, but exhibited no decline.'' The 
Service echoes the uncertainty inherent in their assessment, but 
supports their conclusions. We are not aware of additional information 
presented since 2000 that refutes their conclusions.
    (14) Comment: Comprehensive Everglades Restoration Plan is not 
considered in the proposed rule nor is it disclosed that the PCEs 
require unnatural conditions.
    Our Response: The proposed and final rules include discussions of 
activities involving a Federal action that may destroy or adversely 
modify such habitat, or that may be affected by designation of critical 
habitat. As such we do not discuss specific projects such as CERP. 
However, CERP is addressed in this final rule in our discussion of 
exclusions pursuant to section (4)(b)(2) of the Act, which was not in 
the proposed rule. Designation of critical habitat is a rulemaking 
procedure, and as such, does not consider or accommodate future plans 
as we are required to make our determination on the best information 
available to us at the time of our decision. The Service believes that 
the PCEs will be maintained by natural conditions. The PCEs of Cape 
Sable seaside sparrow critical habitat are derived from the biological 
needs of the sparrows, as described in the Background and Primary 
Constituent Elements sections of our proposed rule (71 FR 63980). The 
PCEs are based on the best scientific data available and their 
scientific

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foundation is detailed in this rule and the referenced proposed rule.
    (15) Comment: If the proposed rule is finalized as proposed, it 
will make manmade structures and associated unnatural management of 
water essential in perpetuity. It is impossible for any person or 
agency to achieve PCE 4 short of totally isolating the area with a wall 
and constructing an engineered plumbing system; man-made controls will, 
in all probability, have to be increased given PCE 4 as proposed.
    Our Response: The critical habitat designation does not require 
implementation of specific management measures, and favorable 
conditions may be achieved through a variety of means. We have modified 
PCE 4 to incorporate a broader array of environmental conditions that 
may occur under natural conditions. We do not intend or expect that PCE 
4 will require intensive management of hydrology. This PCE is based on 
the best available science, and was derived from water levels that have 
been recorded within sparrow habitats throughout their range over the 
past 50 years. We do not think these conditions have resulted 
exclusively from isolating these areas.
    (16) Comment: Over 68 percent of the tree island area in the 
Everglades was destroyed by 1995 primarily due to high water; this 
destruction will continue by designating critical habitat within 
subpopulation A based on the prescription of PCE 4.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (17) Comment: Designating critical habitat within subpopulation A 
is not scientifically justified, and with precise, artificial water 
management mandates, is inconsistent with the principle of multi-
species recovery and ecosystem restoration.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (18) Comment: The proposed rule, with prescribed unnatural 
hydrological management mandates, will adversely impact the Everglades, 
the sparrow, and other endangered species by preventing the restoration 
of natural flows and levels and the full implementation of CERP.
    Our Response: We recognize some habitats currently occupied by 
sparrows, particularly in the vicinity of sparrow subpopulation A, may 
have been wetter historically than they are presently, and conditions 
may become wetter in some portions of this area under restoration. This 
was a consideration in our decision to exclude these areas from the 
designation. The critical habitat designation does not prescribe 
unnatural hydrological management mandates. It identifies a single 
hydrologic characteristic that is consistent with the occurrence of 
sparrows in the Everglades wetlands and is based on the best available 
information. This condition will be used to evaluate potential effects 
of Federal actions on designated critical habitat.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the sparrow are addressed below.
    (19) Comment: Units 1 and 2 should not be designated as critical 
habitat.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding units 
1 and 2 (subpopulation A) from this final designation outweigh the 
benefits of inclusion, see ``Application of section (4)(b)(2) of the 
Act'' below for further explanation.
    (20) Comment: The proposed designation will detrimentally affect 
the abilities of the South Florida Water Management District to 
effectively operate the Central & Southern Florida system; will prevent 
the State from achieving the Minimum Flow and Level for Shark River 
Slough; and fails to consider SFWMD's responsibilities for flood 
protection, agriculture, and the urban environment.
    Our Response: The Service's exclusion of critical habitat in the 
area of subpopulation A is expected to reduce potential impacts to 
water management options, including Everglades restoration. One of the 
purposes of designating critical habitat is to evaluate the potential 
impact of proposed Federal actions on habitats that support sparrows. 
Individual proposals will be evaluated to determine whether they will 
result in destruction or adverse modification of critical habitat, and 
such proposals will require modification to avoid impacting areas that 
contain the features that are essential for the conservation of the 
sparrow.
    (21) Comment: The designation will directly impact the SFWMD's 
ability to operate the features constructed by the State's Acceler8 
program and fails to evaluate the impacts on the Foundation Projects, 
CERP, and Acceler8. The Service's narrow focus on the sparrow 
contradicts CERP and restricts water flow to Everglades National Park.
    Our Response: The exclusion of critical habitat from the area of 
subpopulation A is expected to reduce or eliminate potential conflicts 
between hydrologic restoration efforts, including CERP, and the 
designated critical habitat. We do not believe that any CERP 
components, as currently planned, will be incompatible with the 
designation. However, there are components of CERP that have not been 
planned sufficiently to date to allow evaluation and determination of 
whether they will be completely compatible with the designated critical 
habitat, and we expect CERP project designs to continue to change in 
the future. In the Adverse Modification Standard section of this final 
rule we discuss activities that, when carried out, funded, or 
authorized by a Federal agency, may affect critical habitat and, 
therefore, result in consultation for the sparrow. However, this does 
not mean that those activities cannot go forward as planned or proceed 
with some project modifications.
    (22) Comment: An Avian Ecology Workshop was held in August 2007, 
the initial advice and recommendations from the avian ecology experts 
who participated in the workshop will be available in December 2007. 
Given the imminent release of this information, the Service is failing 
to consider the best scientific data available.
    Our Response: On June 14, 2007, the Service filed a motion with the 
U.S. District Court for the District of Columbia to extend the deadline 
to complete critical habitat until December 15, 2008. The motion was 
based in part on waiting for the results of the Avian Ecology Workshop. 
On July 18, 2007, our request for an extension was denied by the Court. 
As a result, the Service must complete the final critical habitat rule 
by October 24, 2007, using the best scientific information available.
    The Service participated in the avian ecology workshop, and 
incorporated and considered scientific and technical information into 
the final rule that was presented at the workshop and provided in 
subsequent technical reports from scientists who gave presentations at 
the

[[Page 62740]]

workshop. This information included recent results on sparrow 
population status and habitat, such as that cited in the final rule as 
Sah et al. 2007, and Pimm et al. 2007.
    (23) Comment: Are roadway rights-of-ways part of designated 
critical habitat? Clarify if an excepted area should be excluded based 
solely on containing one of the PCEs. The units should acknowledge and 
accommodate the existing roads and canals.
    Our Response: In developing our final designation, we attempted to 
avoid including developed areas such as buildings, paved areas, and 
other structures that lack PCEs for the sparrow on the boundaries of 
the designation. However, the scale of the maps prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed areas. As is our normal 
practice, any such structures and the land under them inadvertently 
left inside critical habitat boundaries shown on the maps of this rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Federal actions within such areas would not trigger 
consultation under section 7 of the Act, unless they affect the species 
or PCEs in adjacent critical habitat. The areas outside of this 
designation do not include buffers around such features, and impacts to 
habitat immediately adjacent to roads, buildings, canals, and similar 
features must be considered during consultation if federally funded 
maintenance and development actions affect designated areas.
    (24) Comment: Critical habitat designation must include other 
Federal and State listed species. The current direction of the Service 
to protect a single species to the detriment of other listed and non-
listed species is of concern.
    Our Response: Under the Act and its implementing regulations, there 
are no mechanisms associated with the proposed designation of critical 
habitat that consider addressing or accommodating other species besides 
the species for which critical habitat is designated. In accordance 
with section 3(5)(A) of the Act and regulations at 50 CFR 424.12, in 
determining which areas to designate as critical habitat, we consider 
the specific occupied areas that contain PCEs, and specific unoccupied 
areas that are essential for the conservation of the species for which 
we are designating critical habitat. However, we are able to consider 
most other species as well as other environmental concerns in our 
analysis of exclusions from critical habitat pursuant to section 
4(b)(2). In fact, our decision to exclude proposed Units 1 and 2 in the 
final rule includes consideration of such concerns. Other listed or 
sensitive species may also be afforded some conservation and 
protection, if they occur within the areas designated as critical 
habitat or share habitat components of the Cape Sable seaside sparrow.
    (25) Comment: The Service should examine the hydrologic data 
collected in Units 1, 2, and 5 over the last 10 years to determine the 
feasibility of attaining PCE 4 in these particular areas.
    Our Response: We have examined hydrologic records for the period of 
record for data sets across all areas occupied by sparrows. We have 
excluded proposed critical habitat Units 1 and 2, which correspond with 
sparrow subpopulation A, from the final designation (see ``Application 
of Section (4)(b)(2) of the Act'' below). Further, we have clarified 
PCE 4 to provide for a degree of environmental variability observed in 
these data sets. We have determined that attaining this modified PCE 4 
is feasible in the other units.
    (26) Comment: We should clarify how PCE 4 would be applied and 
interpreted in areas that are expansive and have ground elevations that 
vary by several feet.
    Our Response: There are numerous hydrological monitoring stations 
across the Everglades, including some that are in or adjacent to areas 
designated as critical habitat. These monitoring stations provide 
detailed information about the hydrological conditions in the areas 
near the gauges over the past decades. Obtaining information about the 
water levels and/or ground elevations at specific locations within 
critical habitat will allow estimation of the hydrologic conditions 
that have occurred over time by relating the conditions at the specific 
site to nearby hydrologic gauges. In addition, existing hydrologic 
models provide projections of water depths across the landscape. While 
these depths are understood to be generalized across relatively large 
spatial scales, they provide estimates of changes in water depths and 
the duration of specific water levels. These models can be used to 
evaluate whether proposed projects that are expected to alter 
hydrologic conditions may affect the occurrence of hydrological 
conditions described in PCE 4. In evaluating proposed projects that may 
affect hydrological conditions within critical habitat, the best 
available information, such as hydrological models or measured water 
depths and ground elevations, in combination with data from water 
monitoring stations, will be used to make a determination of whether 
the proposed project may result in hydrologic conditions consistent 
with the PCE. The specific information evaluated to make this 
assessment may vary depending on the location of the anticipated 
effects relative to nearby hydrologic monitoring sites, the 
availability of hydrologic modeling, and other factors.
    (27) Comment: The addition of a PCE describing an appropriate fire 
regime, perhaps based on soil depth characteristic, would strengthen 
the designation.
    Our Response: We agree, and considered including a PCE related to 
fire. However, there is currently insufficient scientific information 
available to identify the appropriate fire frequency and seasonality 
necessary to maintain the characteristics of sparrow habitat that are 
essential to the conservation of the sparrow. We are supporting ongoing 
research to assist in addressing this question, but information is 
currently lacking.

Public Comments

    (28) Comment: Units 1 and 2 should not be designated as critical 
habitat.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below).
    (29) Comment: Units 3 through 7 should be designated as critical 
habitat.
    Our Response: We agree and have included these areas in the final 
designation. However, since proposed Units 1 and 2 have been excluded 
from the final designation, we have renumbered the units so that 
proposed Units 3 through 7 are now identified as Units 1 through 5 in 
this final designation.
    (30) Comment: It must be made clear if there are any portions of 
CERP that cannot go forward. The Service's narrow focus on the sparrow 
contradicts CERP and restricts water flow to ENP.
    Our Response: The exclusion of critical habitat from the area of 
subpopulation A is expected to reduce or eliminate potential conflicts 
between hydrologic restoration efforts, including CERP, and the 
designated critical habitat. We do not believe that any CERP 
components, as currently planned, will be incompatible with the 
designation. However, there are components of CERP that have not been 
planned sufficiently to date to allow evaluation and determination of 
whether they will be completely

[[Page 62741]]

compatible with the designated critical habitat, and we expect CERP 
project designs to continue to change in the future. In this final rule 
under the Adverse Modification Standard section we discuss activities 
that, when carried out, funded, or authorized by a Federal agency, may 
affect critical habitat and therefore result in consultation for the 
sparrow. However, this does not mean that those activities cannot go 
forward as planned or proceed with some project modifications.
    (31) Comment: Consideration of the cumulative and long-term effects 
of PCE 4 for Unit 1 on other avian species of concern has not been 
presented.
    Our Response: Upon further evaluation of the proposed critical 
habitat designation, we have found that the benefits of excluding Unit 
1 from this final designation outweigh the benefits of inclusion, see 
``Application of section (4)(b)(2) of the Act'' below for further 
explanation.
    (32) Comment: The PCEs need further clarification by unit and the 
methods by which the effects from rainfall and surface flows from 
surrounding natural areas were distinguished from C&SF projects 
operations needs further clarification.
    Our Response: The PCEs are derived from the biological needs of the 
sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule (71 FR 63980) and this final 
rule. The PCEs are based on the best scientific data available and 
their scientific foundation is detailed in this rule and the referenced 
proposed rule. Further, critical habitat units are delineated based on 
the presence of one or more of the PCEs. They were not developed in 
reference to past, current, or future operations of the C&SF project. 
The effects of future projects will be evaluated using the best 
available information to predict whether they will occur. The specific 
information available to make this determination may vary among 
projects.
    (33) Comment: There is no reference as to how and where water 
levels exceeding 7.9 inches (20 cm) (i.e., PCE 4) would be measured for 
each proposed critical habitat unit.
    Our Response: Measurements of water levels that relate to this PCE 
can be made in any location to determine whether that PCE is present at 
a site. In the absence of site-specific information, the best available 
information should be used to determine whether the PCE is present. In 
evaluating future projects, PCE 4, as well as the other PCEs, will be 
evaluated using the best available information to determine which ones 
are present and how they will be affected by the proposed project. The 
specific information available to make this determination may vary 
among projects, and the locations and extent of measurement will need 
to be determined based on the specific considerations of individual 
projects. The PCEs identified are those that are important to sparrows 
in general, and are not relevant to individual or specific units. The 
PCEs are derived from the biological needs of the sparrows, as 
described in the Background and Primary Constituent Elements sections 
of our proposed rule (71 FR 63980). The PCEs are based on the best 
scientific data available and their scientific foundation is detailed 
in this rule and the referenced proposed rule.
    (34) Comment: One commentor suggested that we lengthen the duration 
for PCE 4 in the breeding season and include hydrologic triggers for 
the non-breeding season.
    Our Response: We considered a broad variety of hydrologic 
characteristics in developing PCE 4, and we revised this PCE in the 
final rule (see the Primary Constituent Elements section below). The 
PCE that we identified is based on the best available science and 
detailed inspection of hydrological and meteorological data. 
Lengthening the period of evaluation may emphasize hydrologic 
characteristics that would provide better nesting habitat for sparrows, 
but they would not be consistent with natural hydrological and 
meteorological patterns and conditions. Hydrologic triggers during the 
non-breeding season may also be desirable, but we do not currently have 
detailed data on hydrological conditions and their specific effects on 
sparrow habitat during the non-breeding season. Consequently, we do not 
have sufficient information to define such a PCE and establish that it 
represents a feature that is essential to the conservation of the 
sparrow.
    (35) Comment: Options such as mechanical vegetation control, 
construction of levees and pumps to protect habitat, and restoration of 
formerly occupied habitat have not been included or considered in the 
analyses.
    Our Response: Such actions, while they may be important to managing 
and restoring sparrow habitat, are not addressed in the rule because 
critical habitat designation does not prescribe specific actions, and 
only establishes a baseline condition to allow evaluation of potential 
impacts resulting from future Federal actions. Other mechanisms, such 
as recovery plans and section 7 of the Act, provide for consideration 
of such actions.
    (36) Comment: The proposed rule is not based on the best scientific 
data available.
    Our Response: The Service's Policy on Information Standards Under 
the Endangered Species Act, published in the Federal Register on July 
1, 1994 (59 FR 34271), and Section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658) and the associated Information Quality Guidelines issued by 
the Service, provide criteria, establish procedures, and provide 
guidance to ensure that decisions made by the Service represent the 
best scientific data available. Section 4 of the Act requires that we 
designate critical habitat on the basis of the best scientific data 
available. For this rule, we reviewed all available published and 
unpublished literature about the ecology of the sparrow, including the 
1999 petition, the revised recovery plan (Service 1999a), and the 
previous recovery plan (Service 1983) (See ``Criteria Used to Identify 
Critical Habitat'' section). We evaluated management plans that address 
specific management needs of sparrows and their habitats and past 
section 7 consultations that addressed the needs of the sparrow. We 
reviewed reports received from section 7 consultations and from 
researchers who hold section 10(a)(1)(A) research permits. We reviewed 
past records of sparrow occurrence, distribution, and habitat use over 
time that were compiled by FWC personnel, NPS personnel, and 
independent researchers. We obtained and analyzed spatial information 
on the location of sparrow occurrences recorded on surveys from 1981 to 
present and spatial data that reflect vegetation type, fire history, 
and hydrologic conditions within these areas. We reviewed information 
resulting from hydrologic modeling of several water management regimes 
implemented in the region. We evaluated the conclusions and 
recommendations that resulted from an independent peer review of the 
science related to sparrows and their management conducted by the 
American Ornithologists' Union in 1999 (Walters et al. 2000), and the 
recommendations and conclusions of the 2003 South Florida Ecosystem 
Restoration Multi-species Avian Workshop (SEI 2003). We have also 
reviewed available information on the habitat requirements of this 
species. In determining PCEs, we reviewed all available published and 
unpublished literature on the ecology, habitat needs, and factors 
limiting the sparrow's

[[Page 62742]]

occurrence and distribution, including information in published, peer-
reviewed journal articles; unpublished reports and theses; and 
preliminary results from ongoing research. The original critical 
habitat designation (August 11, 1977, 42 FR 40685; corrected September 
22, 1977, 42 FR 47840) was evaluated thoroughly during our analysis. As 
such, we believe that this final designation is based on the best 
available scientific information available.
    (37) Comment: The Service did not conduct the National 
Environmental Policy Act analysis necessary to determine the 
environmental impacts of this major Federal action.
    Our Response: It is our position that, outside the jurisdiction of 
the U.S. Court of Appeals for the Tenth Circuit, we do not need to 
prepare environmental analyses pursuant to NEPA in connection with 
designating critical habitat pursuant to the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position has been upheld by the 
U.S. Court of Appeals for the Ninth Circuit (see, Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 516 U.S. 1042 
(1996)).
    (38) Comment: The Service failed to abide by Secretarial Order 
3206, Executive Order 13175 and Departmental Manual 512, Chapter 2 in 
completing its Trust duty to conduct meaningful, pre-decisional 
consultation with the Miccosukee Tribe of Indians on this action.
    Our Response: In accordance with the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951), Executive Order 13175, and 
the Department of Interior's manual at 512 DM 2, we readily acknowledge 
our responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to tribes. Accordingly, we provided verbal 
notification to the Tribe's representative in advance of publication of 
the proposed rule on October 26, 2006. Shortly after publication, the 
Service followed up with a letter dated November 7, 2006, requesting 
comments from the Tribe and offering our availability to answer 
questions and meet with the Tribe. The Service requested and received 
recommendations for peer reviewers from the Tribe and a Tribal 
representative was asked to peer review the proposed rule. Subsequent 
to the publication of the proposed rule we responded to numerous email 
and telephone requests from the Tribe's representative. In advance of 
the publication of the notice of availability in August 2007, we 
provided verbal, email, and written notification to the Tribe, and 
provided advanced verbal notification as to the date, time, and 
location of the public hearing. In our advanced written notification to 
the Tribal Chairman, we requested comments from the Tribe and offered 
our availability to answer questions and meet. Since October 2006, we 
have corresponded with the Tribe or its representative regarding this 
issue on more than 30 occasions.
    (39) Comment: The Service's contention that it anticipates no 
impacts to Tribal lands is disingenuous and inaccurate.
    Our Response: In the final rule, we considered potential direct and 
indirect impacts to Tribal lands and resources that might result from 
designation of critical habitat when weighing the benefits of exclusion 
and inclusion in the ``Application of Section 4(b)(2) of the Act'' 
section below. In addition, potential impacts to Tribal resources were 
described and considered in the economic analysis associated with the 
critical habitat designation
    (40) Comment: The Service is not legally obligated to designate the 
western area of ENP as critical habitat because the sparrow is 
protected under the Act and ENP is a protected area. Moreover, the 
Service has no obligation to adopt a rule that contains a hydrologic 
management objective.
    Our Response: While the existing management plans for NPS and State 
lands include provisions and actions intended to maintain the habitat 
type upon which sparrows depend, the existing plans do not provide 
sufficient assurances that hydrologic management in these areas will 
maintain sparrow habitat for the foreseeable future. Neither the NPS 
nor the Florida Fish and Wildlife Conservation Commission directly 
manage the hydrologic conditions on their properties. Inflows into the 
properties, as well as adjacent hydrologic conditions that affect the 
lands through groundwater seepage, are regulated by other Federal and 
State agencies. As such, we are designating critical habitat on NPS and 
State lands. However, upon further evaluation of the proposed critical 
habitat designation, we have excluded Units 1 and 2 (subpopulation A) 
from final designation after determining that the benefits of excluding 
them from the final designation outweigh the benefits of inclusion (see 
``Application of section (4)(b)(2) of the Act'' below). The specific 
PCEs, including PCE 4 (hydrologic condition), identified for the Cape 
Sable seaside sparrow are derived from the biological needs of the 
sparrows, as described in the Background and Primary Constituent 
Elements sections of our proposed rule published on October 31, 2006 
(71 FR 63980). The PCEs are based on the best scientific data available 
and their scientific foundation is detailed in this rule and the 
referenced proposed rule.
    (41) Comment: The peer review process was flawed in that the 
scientists were only given a short time to review the proposed rule and 
were not provided with all the ``science'' documents on which the 
Service claims it was based.
    Our Response: Eight of the peer reviewers were sent a letter on 
November 2, 2006, requesting that they complete their review and 
provide their comments by January 2, 2007. One peer reviewer was sent a 
letter on November 14, 2006, requesting their review and comments by 
January 2, 2007. In other words, most reviewers were provided 
approximately 60 days to review the proposal and the information it was 
based on and provide their comments. This is approximately the same 
period of time in which the public had to review the proposal and the 
time period required by our ESA regulations for public comment. 
Moreover, the letter sent to all nine reviewers indicated that the 
literature used to prepare the proposed rule was available upon 
request.
    (42) Comment: Management of water levels is not within the 
Service's jurisdiction and, thus, the hydrologic management objective 
is in excess of statutory authority.
    Our Response: The final rule does not prescribe specific water 
management regimes or water levels, and only describes a hydrologic 
characteristic that allows for the conservation of the species. 
Potential impacts of future Federal actions on the hydrologic 
conditions within designated critical habitat will be evaluated at the 
time of the action in accordance with section 7 of the Act.

[[Page 62743]]

    (43) Comment: The proposed rule violates the 5th Amendment of the 
U.S. Constitution (i.e., the taking of private property).
    Our Response: The mere promulgation of a regulation, like the 
enactment of a statute, does not take private property unless the 
regulation on its face denies the property owners all economically 
beneficial or productive use to their land (Agins v. City of Tiburon, 
447 U.S. 255, 260-263 (1980); Hodel v. Virginia Surface Minin and 
Reclamation Ass'n, 452 U.S. 264, 195 (1981); Lucas v. South Carolina 
Coastal Council, 505 U.S. 1003, 1014 (1992)). The Act does not restrict 
all uses of critical habitat, but only imposes limits under section 
7(a)(2) on Federal agency actions that may result in destruction or 
adverse modification of designated critical habitat. This limitation 
does not apply to private actions that do not need Federal approvals, 
permits, or funding. Furthermore, if a biological opinion concludes 
that a proposed action is likely to result in destruction or adverse 
modification of critical habitat, we are required to suggest reasonable 
and prudent alternatives, if we are able to develop such alternatives. 
In accordance with Executive Order 12630, we have concluded that this 
designation does not have significant takings implications (see 
``Required Determinations'' section below).
    (44) Comment: The Service needs to state whether the rule will or 
will not impact access or human use in Units 1 and 2 other than during 
the natural sparrow nesting season.
    Our Response: Units 1 and 2 have been excluded from this 
designation and, therefore, critical habitat is no longer a 
consideration. However, the areas that were considered in the proposed 
rule for designation as Units 1 and 2 (subpopulation A) contain 
sparrows and will continue to be subject to conservation actions 
implemented under section 7(a)(1) of the Act and to the regulatory 
protections afforded by the section 7(a)(2) jeopardy standard, as 
determined on the basis of the best available information at the time 
of the proposed action.
    (45) Comment: Under the proposed critical habitat designation how 
will the sparrow have the necessary habitat to substantially increase 
the population to 6,600 birds? There should be a discussion of total 
available habitat contrasted with critical habitat as well as how 
restoration of habitat can fit in with critical habitat strategies to 
attain the recovery goals.
    Our Response: Recovery of sparrows is expected to occur both within 
and outside of designated critical habitat, and the designation is 
consequently not intended to encompass all areas where sparrows may 
occur. There are areas outside of designated sparrow critical habitat 
that may currently be able to support sparrows, and additional areas 
where habitat may be restored through management or Everglades 
restoration efforts. Habitat is often dynamic, and species may move 
from one area to another over time. Consequently, it is difficult to 
accurately estimate the amount of suitable habitat that is available at 
a particular point in time. Furthermore, we recognize that designation 
of critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. We expect that some additional areas may become suitable for 
sparrows as Everglades restoration progresses. However, we have made 
the designations in this final rule consistent with the best available 
scientific information and are currently unable to predict the specific 
location or extent of such other areas. For these reasons, critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery.
    (46) Comment: In the discussion of the individual units, specific 
threats should be identified such as global warming or climate change, 
off-road vehicle use in Big Cypress National Preserve, exotic predators 
such as the Burmese python.
    Our Response: Global warming and climate change may threaten all 
units, although the precise impacts over time are not fully understood. 
Proposed Units 1 and 2, which were the only units in BCNP, have been 
excluded for the reasons described later in this rule. Exotic 
predators, similar to climate change, is a general threat that may 
affect all units, and the degree to which this potential threat may 
affect sparrows remains unknown. In our descriptions of specific units, 
we only addressed the main factors affecting sparrow habitat within the 
unit that may require special management consideration or protection.
    (47) Comment: How will critical habitat be effectively monitored 
and enforced?
    Our Response: Under the Act, critical habitat receives protection 
under section 7 of the Act through the prohibition against destruction 
or adverse modification of critical habitat with regard to actions 
carried out, funded, or authorized by a Federal agency. Section 7 
requires consultation on Federal actions that may affect critical 
habitat (see ``Section 7 Consultation'' section below). There are no 
special provisions to actively monitor critical habitat, and any 
monitoring will be conducted as a result of the implementation of Terms 
and Conditions associated with section 7 consultations that specify 
monitoring, and in conjunction with other research and monitoring 
activities.
    (48) Comment: The habitat on Rattlesnake Ridge (subpopulations A) 
is no longer suitable for sparrows.
    Our Response: Upon further evaluation of Units 1 and 2 
(subpopulation A), we have found that the benefits of excluding this 
from the final designation outweigh the benefits of their inclusion 
(see ``Application of Section 4(b)(2) of the Act'' below).
    (49) Comment: The sparrow is not native to the areas where it is 
currently nesting.
    Our Response: The best available information suggests that sparrows 
have occurred for a long time in areas where they currently occur. 
While the sparrow was originally only known to occur on Cape Sable in a 
different vegetation type than where it is found today, we believe that 
sparrows historically occurred in the marl prairie habitat where they 
occur today, and their documentation only on Cape Sable resulted from 
limited knowledge of their distribution, and not movement from Cape 
Sable into the marl prairies. The first prong of the definition of 
critical habitat under the ESA focuses on the areas occupied by the 
species at the time of listing.
    (50) Comment: The Miccosukee Tribe asserted that the Service 
violated the Administrative Procedure Act (APA) by not holding a public 
hearing on the proposed critical habitat during the first comment 
period.
    Our Response: Pursuant to section 4(b)(5)(E) of the Act, we are to 
hold one public hearing on a proposed regulation if a request for a 
hearing is filed within 45 days of the publication of our proposal. 
Further, we are required to hold a public hearing within an open 
comment period, provide notice to the public of a public hearing at 
least 15 days prior to hearing itself, and hold the comment period open 
for at least 10 days following the hearing. For this rulemaking, the 
proposed rule was published on October 31, 2006, and the public comment 
period closed on January 2, 2007. We received the request for a public 
hearing from the Tribe by facsimile on November 30, 2006, within the 45 
day time period required by the Act. It is commonly our practice, upon 
receiving a request for a public hearing on a proposed critical 
habitat, to hold at least one hearing in the general area

[[Page 62744]]

effected by the proposal either directly following the publication of a 
proposal or following the release of our draft economic analysis of the 
proposal. In the case of the Cape Sable seaside sparrow proposed 
critical habitat, there was insufficient time to coordinate, provide 
notice to the public and hold a public hearing on the proposal during 
the initial comment period. Consequently, we held one public hearing in 
Homestead, Florida, on August 29, 2007, which was during the open 
public comment period following the release of the draft economic 
analysis of the proposal. As such, we have abided by the provisions of 
the Act and our implementing regulations.

Economic Analysis--Policy Issues

    (51) Comment: Several commenters requested that the economic 
analysis consider those impacts attributable co-extensively to other 
causes and not just those that are due solely to the designation of 
critical habitat.
    Our Response: The main body of the Final Economic Analysis (FEA) 
estimates fully co-extensive impacts associated with the proposed 
critical habitat designation. Appendix B of the FEA estimates the 
potential incremental impacts of critical habitat designation for the 
sparrow. It does so by attempting to isolate those direct and indirect 
impacts that are expected to be triggered specifically by the critical 
habitat designation. The incremental conservation efforts and 
associated impacts included in Appendix B would not be expected to 
occur absent the designation of critical habitat for the sparrow. Total 
present value potential incremental impacts are estimated to be $64,000 
(discounted at three percent). All other impacts quantified in the FEA 
are considered baseline impacts and are not expected to be affected by 
the critical habitat designation.
    (52) Comment: One commenter states the Draft Economic Analysis 
should be peer reviewed.
    Our Response: For purposes of completing this economic analysis, 
the Service did consider whether external peer review, beyond that 
conducted by internal Service economists, was necessary. In this case, 
the reasonably foreseeable impacts were primarily related to direct 
costs of conservation efforts. Thus, the circumstances of the analysis 
did not give rise to a need for external peer review.
    (53) Comment: Several commenters state that potential benefits of 
critical habitat designation can and should be quantified and that by 
quantifying the costs and not the benefit of the proposed rule, public 
attention is focused on the costs of critical habitat designation while 
making benefits invisible.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, impact on national 
security, and any other relevant impact, of specifying any particular 
area as critical habitat. The Service's approach for estimating 
economic impacts includes both economic efficiency and distributional 
effects. The measurement of economic efficiency is based on the concept 
of opportunity costs, which reflect the value of goods and services 
foregone in order to comply with the effects of the designation (e.g., 
lost economic opportunity associated with restrictions on land use). 
Economic benefits can result when increased regulation on land has a 
beneficial effect due to the elimination of negative externalities 
caused by the regulation. For example, if designation of critical 
habitat results protects a viewshed thus increasing the value of the 
neighboring properties that benefit from the viewshed, the designation 
would eliminate a negative externality and have a measurable economic 
benefit. Our analysis consider such economic benefits, and if both 
economic costs and benefits can be quantified, we can measure the net 
economic impact. However, for the CSSS proposed crit