Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus, 29294-29321 [E8-10742]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 98 (Tuesday, May 20, 2008)]
[Proposed Rules]
[Pages 29294-29321]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10742]



[[Page 29293]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 73, No. 98 / Tuesday, May 20, 2008 / Proposed 
Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0055; 92210-1117-0000-FY08-B4]
RIN 1018-AV46


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

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 
designate revised critical habitat for the wintering population of the 
piping plover (Charadrius melodus) in 18 specific units in Texas under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 138,881 acres (ac) (56,206 hectares (ha)) fall within the 
boundaries of the proposed revised critical habitat designation. The 
proposed revised critical habitat is located in Cameron, Willacy, 
Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and Brazoria 
Counties, Texas. Other previously designated critical habitat for the 
wintering piping plover in Texas or elsewhere in the United States is 
unaffected by this proposal.

DATES: Send your comments on or before July 21, 2008. We must receive 
requests for public hearings, in writing, at the address shown in the 
FOR FURTHER INFORMATION CONTACT section by July 7, 2008.

ADDRESSES: You may submit comments by one of the followingmethods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2008-0055; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all comments on http:/
/www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S. 
Fish and Wildlife Service, Corpus Christi Ecological Services Office, 
6300 Ocean Drive, TAMU-CC, Unit 5837, Corpus Christi, TX 78412-5837; 
telephone 361-994-9005; facsimile 361-994-8262. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons we should or should not designate habitat as 
``critical habitat'' in the 19 court-vacated units and adjacent areas 
in Texas under section 4 of the Act (16 U.S.C. 1531 et seq.), including 
whether there are threats to the species from human activity, the 
degree of which can be expected to increase due to the designation, and 
whether that increase in threat outweighs the benefit of designation 
such that the designation of critical habitat is not prudent.
    (2) Specific information on:
     The amount and distribution of wintering piping plover 
habitat in the 19 court-vacated units and areas adjacent to those 19 
units in Texas, and
     What areas occupied at the time of listing, but located 
within or adjacent to these specific units, are 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 amended 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, and the benefits of including or excluding 
areas that exhibit these impacts.
    (5) The appropriateness of the possible exclusion of approximately 
28,474 acres (ac) (11,523 hectares (ha)) of wintering piping plover 
habitat from the final designation based on the benefits to the 
conservation of the species and its habitat provided by the 
Comprehensive Conservation Plans (CCPs) being drafted for National 
Wildlife Refuge (NWR) lands (see the Areas Considered for Exclusion 
Under Section 4(b)(2) of the Act section for further discussion). 
Specifically:
    (a) The benefits to the conservation of the species provided by a 
CCP;
    (b) How the CCPs address the physical and biological features in 
the absence of designated critical habitat;
    (c) The specific conservation benefits to the wintering piping 
plover that would result from designation;
    (d) The certainty of implementation of the CCPs; and
    (e) The benefits of excluding from the critical habitat designation 
the areas covered by the CCPs.
    We are particularly interested in knowing how existing or future 
NWR partnerships may be positively or negatively affected by a 
designation, or through exclusion from critical habitat;
    (6) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (7) Whether there are areas we previously designated, but are not 
proposing for revised designation here, that we should include in our 
critical habitat designation.
    (8) The existence of any conservation or management plans being 
implemented by public or private land management agencies or owners on 
lands proposed for designation that we should consider in connection 
with possible exclusion of those lands from the designation under 
section 4(b)(2) of the Act. Please include information on any benefits 
(educational, regulatory, etc.) of including or excluding lands from 
this proposed designation. We are interested in knowing how 
partnerships may be positively or negatively affected by a designation, 
or through exclusion from critical habitat, and costs and other 
relevant impacts associated with the designation.
    (9) Any foreseeable impacts on energy supplies, distribution, and 
use resulting from the proposed designation and, in particular, any 
impacts on seismic studies for oil and gas drilling, and the benefits 
of including or excluding areas that exhibit these impacts.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the website. If you submit a hardcopy comment that includes personal 
identifying information, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we

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used in preparing this proposed rule, will be available for public 
inspection on https://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Corpus 
Christi Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
designating revised critical habitat in this proposed rule. 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, p. 2). Information 
from observation of color-banded piping plovers indicates that the 
winter ranges of the breeding populations overlap to a significant 
degree. Therefore, we cannot determine the source breeding population 
of a given wintering individual 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. 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, p. 4). Individual plovers tend to return to the same wintering 
sites year after year as evidenced by multi-year observations of 
uniquely marked individuals (Nicholls and Baldassarre 1990; Drake 
1999a).
    Wintering plovers are dependent on a mosaic of habitat patches, and 
move among these patches depending on local weather and tidal 
conditions. One study by Drake (1999a) monitored the movement of 48 
piping plovers in south Texas for one season. She found that these 
birds had a mean home range of 3,117 ac (1,262 ha). Drake (1999a) also 
noted that the mean linear distance moved per individual bird was 2 
miles (mi) (3.3 kilometer (km)) from the fall through the spring. 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 are listed as 
threatened under the Act due to the difficulty of knowing where they 
bred or were hatched.
    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 mi (2,892 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, Dare and Hyde Counties, North Carolina, and the 
Cape Hatteras Access Preservation Alliance challenged the designation 
of four critical habitat units on the Cape Hatteras National Seashore, 
North Carolina. A November 1, 2004, court opinion vacated and remanded 
these units for reconsideration (Cape Hatteras Access Preservation 
Alliance v. U.S. Department of the Interior (344 F.Supp.2d108(D.D.C. 
2004)). On June 12, 2006, we published a proposed rule in the Federal 
Register (71 FR 33703) to amend the Service's critical habitat 
designation in North Carolina. We anticipate publishing a final 
designation in late 2008.
    The Texas General Land Office (GLO) filed suit on March 20, 2006, 
challenging our designation of 19 units of critical habitat along the 
Texas coast (Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 22, 23, 
27, 28, 31, 32, and 33). In a July 26, 2006, stipulated settlement 
agreement and court order, the court vacated and remanded the 
designation for these units to us for reconsideration (Texas General 
Land Office v. U.S. Department of the Interior, et al., No. 06-cv-00032 
(S.D. Tex.). This proposed rule addresses only those 19 court-vacated 
and remanded units (referenced above). It also addresses 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), including Texas units 1, 2, 5, 6, 11, 12, 13, 20, 21, 
24, 25, 26, 29, 30, 34, 35, 36, and 37.
    For 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). We are proposing this action in accordance with section 4(b)(2) 
of the Act and in compliance with the above-mentioned settlement 
agreement and court order.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protections; and
    (2) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7 of the Act requires consultation on Federal actions 
that may affect critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by the landowner. Where the landowner seeks or 
requests Federal agency funding or authorization that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7 would apply, but even in the event of a destruction or 
adverse modification finding, the landowner's obligation is not to 
restore or recover the species, but to implement reasonable and prudent

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alternatives to avoid destruction or adverse modification of critical 
habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain 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 (areas on which are found the 
primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)), 
laid out in the appropriate spatial arrangement essential to the 
conservation of the species.
    Occupied habitat that contains the features essential to the 
conservation of the species meets the definition of critical habitat 
only if those features may require special management considerations or 
protections. Under the Act, we can designate unoccupied areas as 
critical habitat only when we determine that the best available 
scientific data demonstrate that the designation of that area is 
essential to the conservation needs of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas should be proposed as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic (shifting spatially over time) 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 we may eventually determine, based on scientific data not 
now available to the Service, are necessary for the recovery of the 
species. For these reasons, a critical habitat designation does not 
signal that habitat outside the designated area is unimportant now or 
may not be required for recovery of the species in the future.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions we implement under section 7(a)(1) of the Act. These areas are 
also subject to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard for Federal agency actions, as determined on 
the basis of the best available scientific information at the time of 
the agency action. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
sometimes result in jeopardy findings. Similarly, if new information 
available to these projects and associated planning efforts calls for a 
different outcome, 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.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas occupied at the time of listing 
that contain the physical or biological features essential to the 
conservation of the wintering population of the piping plover, areas 
unoccupied at the time of listing that are essential to the 
conservation of the wintering population of the piping plover, or both. 
We are not currently proposing any areas outside the geographical area 
presently occupied by the species because occupied areas are sufficient 
for the conservation of the species.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. These sources included, but were 
not limited to, 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 wintering piping plovers in Texas, we 
evaluated these areas using wintering piping plover occurrence data 
from 1991, 1996, 2001, and 2006 international piping plover winter 
population censuses. We considered these data along with other 
occurrence data (including presence or 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 the wintering 
population of the piping plover (see final rule at 66 FR 36038).
    To map bayside areas containing 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, 1992 National Wetlands Inventory (NWI) data (except for Unit 
TX-22 which had 2001 data available) fitted to 2005 National 
Agriculture Imagery Program (NAIP) aerial photographs, and regional 
Geographic Information System (GIS) coverages that defined shorelines. 
The NWI data allowed non-PCEs to be removed from critical habitat 
designation and PCEs to be delineated more precisely. Based on their 
NWI classification, 10 wetland habitats for the bayside areas met our 
definition of PCEs (see Primary Constituent Elements section below). 
Their codes and brief descriptions are provided here; for a more 
complete description of each wetland habitat, go to https://www.fws.gov/
nwi/mapcodes.htm.

M2USN--Marine (gulfside) sandy coastline (beach), regularly 
inundated by tides
M2USP--Marine (gulfside) sandy coastline (beach), irregularly 
inundated by tides
E2AB1N--Estuarine (bayside) algal mud or sand flats, regularly 
inundated by tides
E2AB1P--Estuarine (bayside) algal mud or sand flats, irregularly 
inundated by tides
E2AB3M--Estuarine (bayside) grass flats of mud or sand, irregularly 
inundated by tides
E2USM--Estuarine (bayside) sandy shore (beach/sandbar), rarely 
exposed by tidal fluctuation
E2USN--Estuarine (bayside) sandy shore (beach/sandbar), regularly 
inundated by tides
E2USP--Estuarine (bayside) sandy shore (beach/sandbar), irregularly 
inundated by tides
L1UBKhs--Impounded, artificially flooded open water dredge spoil 
pit, greater than 20 ac (8 ha)
L2USKhs--Impounded, artificially flooded sandy bottom dredge spoil 
pit, greater than 20 ac (8 ha)

    We are aware that wintering piping plovers in Texas also use a NWI 
wetland

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habitat that is classified as subtidal with rooted vascular vegetation 
which is usually five or more species of seagrass. Although that 
habitat is classified as subtidal and appears in the NAIP aerial 
photographs as such, when portions of it are exposed at very low tides, 
wintering plovers forage in them. However, because we are unable to 
identify those exposed portions on the aerial photographs, we are 
unable to map them and, therefore, we are unable to propose them for 
critical habitat designation.
    To map the gulfside, we used 2005 NAIP imagery as a base from which 
the vegetation and water lines were digitized at a scale of 1:5,000 
(using ESRI ArcMap 9.2 software) to produce polygons of critical 
habitat. The mean lower low waterline (MLLW) was used as the lower 
limit of the intertidal habitat used by wintering piping plovers. Due 
to the dynamic nature of the gulfside shoreline, the MLLW vector data 
from the National Oceanic and Atmospheric Administration (NOAA) was 
often misaligned with the shoreline in the 2005 NAIP aerial 
photography. To correct misalignments, we worked with unit TX-3, which 
had a well-aligned MLLW line. In that unit, we measured the average 
distance from the well-aligned MLLW line to the shoreline in the 2005 
NAIP aerial photographs. We took measurements every 328 feet (ft) (100 
meters (m)) along unit TX-03, and averaged them. The 184 ft (56 m) 
average distance was then used as an estimated MLLW line that was 
applied in all coastal (gulfside) areas. The landward limit of the 
gulfside critical habitat units was usually defined by densely 
vegetated dunes, which do not provide habitat for piping plovers.
    We measured the accuracy of the aerial photographs we used by 
gathering Global Positioning System (GPS) readings at 29 locations and 
plotting them over the photographs to determine how close those photo 
points were to actual locations. The offset distance ranged from 10 to 
43 ft (3 to 13 m). This information is in the GIS metadata to document 
the data's horizontal accuracy.
    We included those areas within or adjacent to the 19 court-vacated 
units that contain essential physical or biological features along bay 
and gulf shorelines for which occurrence data indicate a consistent use 
by piping plovers, with observations over two or more wintering seasons 
between 1997 and 2007. We have not included the area of Allyn's Bight 
(court-vacated unit TX-17) because the PCEs have been reduced to two 
small, disjunct fragments that are not of sufficient size and spatial 
arrangement for wintering plovers. Therefore, we do not consider the 
vacated unit to be suitable for critical habitat designation. Within 
the remaining 18 court-vacated units, we also did not include very 
small areas (generally less than 5 ac (2.0 ha)) and areas disjunct from 
larger polygons containing the PCEs. We are assuming that when these 
areas were included in our original designation in 2001, either there 
were PCEs present that connected them to the larger polygons of PCEs or 
they were included in error because our mapping methodology was not as 
precise as the methodology we are using for this proposed revised 
designation. As a consequence, some of the units are smaller than when 
we originally designated them. In contrast, we expanded the boundaries 
of some units to capture complete polygons of PCEs, which we believe 
have shifted outside the boundaries we designated originally due to 
storms or other natural events. By expanding some boundaries to capture 
larger polygons and shrinking other boundaries to remove small and 
disjunct polygons, we believe we have provided a sufficient quantity of 
critical habitat in the appropriate spatial arrangement for the 
wintering population of the piping plover in Texas.
    Delineating specific locations for designation as critical habitat 
for the wintering population of the piping plover 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. To ensure that areas containing features considered 
essential to the piping plover are included in this proposed 
designation, the textual unit descriptions in the regulation, 
definitively determine whether an area is within the critical habitat 
boundary. Our textual descriptions of the boundaries of each unit use 
reference points (such as roads or channels), latitude/longitude 
coordinates, the edge of a PCE (such as the edge of a sand flat or mud 
flat), the MLLW line, or the edge of a management unit (such as a park 
or municipality). Within the described boundary for each unit, the unit 
itself is restricted to only those areas that are utilized by the 
piping plover and contain the physical and biological features needed 
(the PCEs). These proposed unit boundaries are static and will not move 
over time unless we re-designate the boundaries. Unit boundaries were 
drawn to exclude manmade structures, such as roads or cuts to allow 
boat traffic. However, bollards, which are small posts placed to 
preclude driving on the beach, are not PCEs and we propose to exclude 
them from the boundary of critical habitat, although they are too small 
to digitally delete from maps at the scale of 1:5,000 that we used to 
delineate the critical habitat boundaries. Although we are not 
publishing UTM coordinates for the boundaries of the proposed critical 
habitat units in this proposed rule, they will be included in the final 
rule.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas occupied by 
the species at the time of listing to propose as critical habitat, we 
consider the physical and biological features that are essential to the 
conservation of the species to be the primary constituent elements laid 
out in the appropriate spatial arrangement for conservation of the 
species. These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific PCEs required for the wintering population 
of the piping plover from the biological needs of the 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).

Space for Individual and Population Growth and for Normal Behavior

    Behavioral observations of piping plovers on the wintering grounds 
suggest that they spend the majority of their time foraging (Nicholls 
and Baldassarre 1990; Drake 1999a, 1999b). When not foraging, plovers 
can be found roosting, preening, bathing, in aggressive encounters with 
other piping plovers and other shorebird species, and moving among 
available habitat locations (Zonick and Ryan 1996).
    The habitats used by wintering birds support these behaviors and 
include beaches, mud flats, sand flats, algal flats, spits, and 
washover areas. The intertidal sand or mud flats are used by the 
plovers for foraging, bathing and

[[Page 29298]]

aggressive encounters and have no or very sparse emergent vegetation. 
In some cases, these flats may be covered or partially covered by a mat 
of blue-green algae or fine shell. Spits are small points of land, 
especially sand, surrounded by water; they are used by wintering 
plovers for feeding and roosting. Washover areas, also used for 
foraging and roosting, are broad, unvegetated areas on the back side of 
sand dunes with little or no topographic relief formed by breaks in the 
dunes that are caused and maintained by extreme wave actions. 
Unvegetated or sparsely vegetated sand, mud, or algal flats above high 
tide are also used, especially for roosting. These sites may have 
debris or detritus (decaying organic matter). Some of these components 
(sparse vegetation, little or no topographic relief) are mimicked in 
artificial habitat types, particularly dredge spoil sites. Although 
they are used less commonly by piping plovers, we proposed them for 
critical habitat designation when occupancy has been confirmed.
    Wintering plovers are dependent on a mosaic of these habitat 
patches, and move among them depending on local weather and tidal 
conditions. The habitats 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. The most dynamic of these areas are those that are on 
barrier islands or on mainland areas that are not protected by barrier 
islands; these areas are adjacent to the Gulf of Mexico. Areas that are 
on the barrier islands or mainland and adjacent to the bay between the 
barrier islands and mainland are less dynamic.

Food

    Primary prey of wintering plovers include polychaete marine worms, 
various crustaceans, insects, and occasionally bivalve mollusks 
(Nicholls 1989; Zonick and Ryan 1996). Wintering piping plovers peck 
for prey from on top of or just beneath the surface. Foraging usually 
takes place on moist or wet sand or mud flats, or fine shell that 
covers the sand or mud. These substrates may sometimes contain surfcast 
algae or be covered by a mat of blue-green algae.

Cover or Shelter

    Wintering piping plovers roost and take shelter from storms and 
cold weather in backbeach areas that are above mean high tide and 
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. 
These backbeach areas consist of unvegetated or sparsely vegetated 
sand, mud, or algal flats. These flats may have microtopographic relief 
(less than 20 in (50 cm) above the substrate surface), which offers 
important shelter from high winds, storms, and cold weather.

Primary Constituent Elements for the Wintering Population of the Piping 
Plover

    Within the geographical area we know to be occupied by the 
wintering population of the piping plover, we must identify the primary 
constituent elements (PCEs) laid out in the spatial arrangement 
essential to the conservation of the species (i.e., essential physical 
and biological features) that may require special management 
considerations or protections. All areas proposed as critical habitat 
units in Texas in this proposed revised rule are currently occupied 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, we are not changing PCEs previously identified which 
remain based on the best available scientific information. They 
constitute the features that are essential for the conservation of 
wintering piping plovers along the coasts of North Carolina, South 
Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. 
The PCEs in Texas are found in geologically dynamic coastal areas along 
the Gulf of Mexico and along the shores of bays linked to the Gulf.
    Based on the above needs, our current knowledge of the life 
history, biology, and ecology of the species, and the habitat 
requirements for sustaining the essential life history functions of the 
species on its wintering grounds, we have determined that PCEs for the 
wintering population of the piping plover are:
    (1) Intertidal sand beaches (including sand flats) or mud flats 
(between annual low tide and annual high tide) with no or very sparse 
emergent vegetation for feeding. In some cases, these flats may be 
covered or partially covered by a mat of blue-green algae.
    (2) Unvegetated or sparsely vegetated sand, mud, or algal flats 
above annual high tide for roosting. Such sites may have debris or 
detritus and may have micro-topographic relief (less than 20 in (50 cm) 
above substrate surface) offering refuge from high winds and cold 
weather.
    (3) Surf-cast algae for feeding.
    (4) Sparsely vegetated backbeach, which is the beach area above 
mean high tide seaward of the dune line, or in cases where no dunes 
exist, seaward of a delineating feature such as a vegetation line, 
structure, or road. Backbeach is used by plovers for roosting and 
refuge during storms.
    (5) Spits, especially sand, running into water for foraging and 
roosting.
    (6) Salterns, or bare sand flats in the center of mangrove 
ecosystems that are found above mean high water and are only 
irregularly flushed with sea water.
    (7) Unvegetated washover areas with little or no topographic relief 
for feeding and roosting. Washover areas are formed and maintained by 
the action of hurricanes, storm surges, or other extreme wave actions.
    (8) Natural conditions of sparse vegetation and little or no 
topographic relief mimicked in artificial habitat types (e.g., dredge 
spoil sites).
    We have designed this proposed revised designation for the 
conservation of the PCEs necessary to support the life history 
functions of the species and the areas containing those PCEs in the 
appropriate spatial arrangement essential for the conservation of the 
species where it winters.
    Because not all life history functions require all the PCEs, not 
all proposed revised critical habitat units in Texas will contain all 
the PCEs. We propose units for designation based on sufficient PCEs 
being present to support at least one of the species' wintering life 
history functions.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the occupied 
areas contain features essential to the conservation of the species 
that may require special management considerations or protections.
    Primary threats to the wintering population of piping plover that 
may require special management or protection are:
    (1) Disturbance of foraging and roosting plovers by humans, 
vehicles, and domestic animals;
    (2) Predation, especially falcons, hawks, coyotes, bobcats and 
feral cats; and
    (3) Modification and loss of habitat due to uncontrolled 
recreational access and beach stabilization efforts (e.g., beach 
nourishment, beach maintenance, sediment dredging and disposal, inlet 
channelization, construction of jetties and other hard structures).

[[Page 29299]]

    Foraging and roosting piping plovers may be disturbed by events 
that result in flushing birds or disrupting normal feeding or roosting 
times and causing excessive alertness or abandonment of the area. Such 
disturbance can be caused by humans carrying out recreational 
activities such as walking on the beach, flying kites, or shooting 
fireworks. Driving vehicles on the beach also can disturb foraging and 
roosting plovers, as can pets being allowed to run or roam freely on 
the beach. Predation rates on piping plovers may increase above normal 
because human activities attract predators thereby increasing their 
numbers. Wintering piping plover habitat can be modified or lost by 
uncontrolled recreational access, such as off-road vehicle (ORV) use, 
pedestrians, and domestic animals. Additionally, habitat modification 
and loss occurs with beach stabilization activities that prevent the 
natural transfer and erosion and accretion of sediments along the ocean 
shoreline. Beach stabilization efforts that threaten to impact 
wintering piping plover habitat include beach nourishment, beach 
maintenance, sediment dredging and disposal, inlet channelization, and 
construction on jetties and other hard structures. However, when these 
efforts, in particular sediment dredging and disposal, result in PCEs 
that mimic natural PCEs, habitat is created. 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 vehicle and pedestrian 
use of some areas 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 all of the PCEs and reduce piping 
plover disturbance and predation caused by vehicle use, pedestrians, 
and pets. Managing access might also improve the available habitats for 
conservation of piping plovers.

Criteria Used To Identify Critical Habitat

    All proposed revised critical habitat units in Texas are within 
areas that we have determined were occupied at the time of listing, and 
that contain sufficient PCEs in the quantity and spatial arrangement to 
support life history functions essential for the conservation of the 
species where it winters. All units for which we are proposing to 
designate critical habitat have occurrence data that indicate a 
consistent use. That is, occupancy has been documented over more than 
one wintering season, which is the same criterion used in the original 
2001 designation. We used 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), refining the existing descriptions using our 
National Wetlands Inventory data, and mapping 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. However, as 
described in the Methods section, bollards are excluded, but are too 
small to be removed digitally from our maps. We have no information 
indicating that bollards negatively affect piping plovers. To further 
ensure that no manmade features are included in critical habitat, 
bollards are expressly excluded by text in the proposed rule and are 
not proposed for designation as critical habitat. 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 the Methods section above for additional discussion 
of mapping techniques.
    We did not consider for designation areas that do not contain one 
or more of the PCEs or areas that: (1) Are highly degraded and may not 
be restorable; and (2) are small, highly fragmented, or isolated and 
may provide little or no long-term conservation value. We included 
areas containing one or more PCEs where occurrence data exist and where 
the area: (1) Provides a patchwork of the features essential for the 
conservation of the species; (2) offers dispersal capabilities or are 
in proximity to other wintering piping plover occurrences that would 
allow for survival and recolonization following major natural 
disturbance events (e.g., hurricanes); (3) are of sufficient size to 
maintain the physical and biological features that support occurrences; 
and (4) are representative of the historic geographic distribution of 
occupied areas that will help prevent further range collapse of the 
species and will provide for the conservation of the species.
    Within the areas (TX-3, TX-4, TX-7, TX-8, TX-9, TX-10, TX-14, TX-
15, TX-16, TX-18, TX-19, TX-22, TX-23, TX-27, TX-28, TX-31, TX-32, and 
TX-33) vacated and remanded to the Service for reconsideration in Texas 
General Land Office v. U.S. Department of the Interior, et al., No. 06-
cv-00032 (S.D. Tex.), we had found no unoccupied areas that we 
considered essential to the conservation of the species. The 18 units 
in Texas we are considering for designation cover a small area relative 
to the total area used by wintering piping plovers along the coasts of 
the Gulf of Mexico, Atlantic Ocean and Caribbean islands. That total 
occupied wintering area is vast. In comparison, unoccupied areas along 
the Texas coast are relatively small. Thus, we do not consider 
unoccupied areas in Texas to be essential to the conservation of the 
species. Therefore, we propose no areas in Texas outside the 
geographical area occupied by the species at the time of listing. In 
vacated unit TX-17 the PCEs have been reduced to two small and disjunct 
fragments and it has not been observed to have been occupied since 
1997. Therefore, we do not consider it suitable now for critical 
habitat designation. When it was originally designated in 2001, it had 
been occupied at least 2 of the previous 10 years, and the PCEs covered 
a larger, less fragmented area. We are proposing to designate critical 
habitat on lands that we have determined were occupied at the time of 
listing, are currently occupied, and contain sufficient PCEs to support 
life history functions essential for the conservation of the species.

Summary of Changes From Previously Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision of the areas we designated as critical habitat for the 
wintering population of the piping plover on July 10, 2001 (66 FR 
36038). The main differences include the following:
    (1) The 2001 final rule used a more generalized methodology for 
delineating critical habitat, which resulted in the inclusion of non-
PCEs within the 19 court-vacated critical habitat units for the 
wintering population of the piping plover in Texas. We based this 
proposed revised designation on a more specific methodology (see 
Methods section) that resulted in the proposal of 18 units, which are 
changed in size and configuration. It also resulted in the elimination 
of an additional unit (vacated unit TX-17). The boundaries of the 
proposed revised units exclude areas without PCEs. The exception is 
that we include areas with bollards, which are too small to detect at 
the mapping resolution we used (1:5,000), but which the text of the 
rule makes

[[Page 29300]]

clear are not part of the designation. Table 1 presents the size of the 
vacated and proposed units.

  Table 1.--Acres (ha) of Vacated and Proposed Revised Critical Habitat
    Units for the Wintering Population of the Piping Plover in Texas
------------------------------------------------------------------------
                                                    Acres (Hectares)
                     Unit                      -------------------------
                                                  Vacated      Proposed
------------------------------------------------------------------------
TX-03.........................................      168,725      107,673
                                                   (68,281)     (43,574)
TX-04.........................................       38,641       17,218
                                                   (15,638)      (6,969)
TX-07.........................................          208          295
                                                       (84)        (120)
TX-08.........................................          478          620
                                                      (194)        (251)
TX-09.........................................          447          171
                                                      (181)         (69)
TX-10.........................................          683          344
                                                      (276)        (139)
TX-14.........................................        1,103          590
                                                      (446)        (239)
TX-15.........................................        1,778          805
                                                      (719)        (325)
TX-16.........................................          927        1,376
                                                      (375)        (557)
TX-17.........................................          161          N/A
                                                       (65)
TX-18.........................................        8,423        2,467
                                                    (3,408)        (999)
TX-19.........................................        1,957        2,419
                                                      (792)        (979)
TX-22.........................................        1,823          545
                                                      (738)        (221)
TX-23.........................................        1,537        1,808
                                                      (622)        (732)
TX-27.........................................        1,464          906
                                                      (593)        (367)
TX-28.........................................          648          478
                                                      (262)        (193)
TX-31.........................................          849          399
                                                      (344)        (161)
TX-32.........................................          658          555
                                                      (266)        (225)
TX-33.........................................          770          212
                                                      (312)         (86)
                                               -------------------------
    Total.....................................      231,280      138,881
                                                   (93,596)     (56,206)
------------------------------------------------------------------------

    By eliminating areas without PCEs we decreased the overall area and 
increased the area of ``islands'' of non-PCEs surrounded by proposed 
units for the following proposed units: TX-04, TX-09, TX-15, TX-18, TX-
22, TX-27, TX-28, TX-31, TX-32, and TX-33. The overall area of proposed 
units TX-07, TX-08, TX-16, TX-19, and TX-23 increased from that 
originally designated in 2001 because, in addition to eliminating non-
PCEs, we expanded boundaries to capture entire polygons of PCEs. Those 
polygons appeared in recent aerial photographs (see Methods section) to 
have shifted since the original designation in 2001 due to storm 
events.
    (2) The area in unit TX-3 has been reduced to 68 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038), primarily due to a decrease in the size of subunit TX-3C. 
Approximately the northern one-third of what was originally designated 
no longer contains PCEs or the PCEs that remain have been reduced in 
size and are fragmented and disjunct from the large polygon that was 
originally designated. Based on our review of recent aerial 
photographs, we believe that the PCEs became lost or fragmented as a 
result of storm events.
    (3) The area in unit TX 0910 has been reduced to 50 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038), primarily due to a decrease in the size of subunit TX 0910 
C. Using revised mapping methodology (see Methods section), we expanded 
the boundaries of TX 0910C to include all PCEs surrounding a large 
lagoon. The entire polygon of each PCE was included within the boundary 
of the subunit unless we encountered a road. When that occurred, the 
boundary of the unit was the edge of the road. The lagoon itself does 
not contain PCEs and is not included within the boundaries of subunit 
TX 0910 C, although a large portion of it had been included in the 
original 2001 designation.
    (4) The area in unit TX 0914 has been reduced to 54 percent of what 
was designated in our July 10, 2001, critical habitat designation (66 
FR 36038). Approximately the western half of what was originally 
designated no longer contains PCEs or the PCEs that remain have been 
reduced in size and are fragmented and disjunct from the large polygon 
that was originally designated and remains in the eastern portion. We 
expanded the original northern and eastern boundary to capture complete 
polygons of PCEs that, based on our review of recent aerial 
photographs, appear to have shifted.
    (5) The court-vacated unit TX 0917 is an island. When it was 
designated in 2001, it was relatively small (Table 1). When we 
eliminated the non-PCEs in evaluating whether a proposed revised 
designation was appropriate, only two polygons, each less than 4 ac 
(1.6 ha) and separated by 0.8 mi (1.3 km), remained. In addition, we 
had no records of recent occupancy by wintering piping plovers. 
Therefore, we concluded that it was no longer essential to the 
conservation of the species.

Proposed Revised Critical Habitat Designation

    We are proposing 18 units as revised critical habitat in Texas for 
the wintering population of the piping plover. The critical habitat 
units we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for wintering piping 
plovers. We have retained the same unit and subunit numbers that were 
vacated by the court. Units that were not vacated and remain critical 
habitat are not described, and vacated unit TX 0917 is not described 
because. we are not proposing that it be designated. Table 2 shows the 
occupancy, ownership, and approximate size of the proposed revised 
units.

 Table 2.--Occupancy and Threats to the Proposed Revised Critical Habitat Units for the Wintering Population of
                                           the Piping Plover in Texas
----------------------------------------------------------------------------------------------------------------
                                       Occupied at time of                            Threats requiring special
                Unit                         listing?         Currently occupied?     management or protections
----------------------------------------------------------------------------------------------------------------
Subunit TX-3A: South Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Gulf of Mexico Shoreline.                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
Subunit TX-3B: South Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Interior.                                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-3C: North Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Interior.                                                                           animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-3D: North Padre Island--   Yes..................  Yes..................  Human, vehicle and domestic
 Gulf of Mexico.                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.

[[Page 29301]]

 
Subunit TX-3E: Mesquite Rincon......  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-4. Lower Laguna Madre Mainland...  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-7. Newport Pass/Corpus Christi     Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-8. Mustang Island Beach..........  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-9. Fish Pass Lagoons.............  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-10A: Shamrock Island.....  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
Subunit TX-10B: Mustang Island--      Yes..................  Yes..................  Human, vehicle and domestic
 Unnamed sand flat.                                                                  animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and
                                                                                     rehabilitation.
Subunit TX-10C: Mustang Island--      Yes..................  Yes..................  Human, vehicle and domestic
 Lagoon Complex.                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and stabilization.
TX-14. East Flats...................  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-15. North Pass...................  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and restoration.
TX-16. San Jose Beach...............  Yes..................  Yes..................  Domestic animal disturbance,
                                                                                     predation, pedestrian
                                                                                     recreational access.
TX-18. Cedar Bayou/Vinson Slough....  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use; beach
                                                                                     cleaning and nourishment.
TX-19. Matagorda Island Beach.......  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-22. Decros Point.................  Yes..................  Yes..................  Domestic animal disturbance,
                                                                                     predation; pedestrian
                                                                                     recreational use., sea
                                                                                     turtle monitoring efforts.
TX-23. West Matagorda Peninsula       Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-27. East Matagorda Bay/Matagorda   Yes..................  Yes..................  Human, vehicle and domestic
 Peninsula Beach West.                                                               animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-28. East Matagorda Bay/Matagorda   Yes..................  Yes..................  Human, vehicle and domestic
 Peninsula Beach East.                                                               animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-31. San Bernard NWR Beach........  Yes..................  Yes..................  Human, vehicle and domestic
                                                                                     animal disturbance;
                                                                                     predation; uncontrolled
                                                                                     recreational use.
TX-32. Gulf Beach Between Brazos and  Yes..................  Yes..................  Domestic animal disturbance,
 San Bernard Rivers.                                                                 predation, pedestrian
                                                                                     recreational access.
TX-33. Bryan Beach and Adjacent       Yes..................  Yes..................  Human, vehicle and domestic
 Beach.                                                                              animal disturbance;
                                                                                     predation; uncontrolled