Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus) in North Carolina, 62816-62841 [E8-23206]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Rules and Regulations]
[Pages 62816-62841]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23206]



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Part V





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 North Carolina; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0041; 92210-1117-0000-B4]
RIN 1018-AU48


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
revised critical habitat for the wintering population of the piping 
plover (Charadrius melodus) in North Carolina under the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 2,043 
acres (ac) (827 hectares (ha)), in Dare and Hyde Counties, North 
Carolina, fall within the boundaries of the revised critical habitat 
designation.

DATES: This final rule becomes effective on November 20, 2008.

ADDRESSES: This final rule and final economic analysis are available on 
the Internet at https://www.regulations.gov and at https://www.fws.gov/
raleigh/es_piplch.html. Supporting documentation we used in preparing 
this final rule is available for public inspection, by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Raleigh Ecological Services Field Office, 551-F Pylon Drive, Raleigh, 
NC 27606; telephone 919-856-4520; facsimile 919-856-4556.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, 
Raleigh Ecological Services Field Office (see ADDRESSES section). If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of revised critical habitat in this 
final rule. For more information on the biology and ecology of the 
wintering population of the piping plover, refer to the final listing 
rule published in the Federal Register on December 11, 1985 (50 FR 
50726). For information on piping plover wintering critical habitat, 
refer to the final rule designating critical habitat for the wintering 
populations of the piping plover published in the Federal Register on 
July 10, 2001 (66 FR 36038), the proposed rule to designate revised 
critical habitat for the wintering population of the piping plover in 
North Carolina published in the Federal Register on June 12, 2006 (71 
FR 33703), and the revised proposed rule published in the Federal 
Register on May 15, 2008 (73 FR 28084). Information on the associated 
draft economic analysis and draft environmental assessment for the 
proposed rule to designate revised critical habitat was published in 
the Federal Register on May 31, 2007 (72 FR 30326) and revised on May 
15, 2008 (73 FR 28084).

Previous Federal Actions

    We first designated critical habitat for the wintering population 
of the piping plover in 142 areas along the coasts of North Carolina, 
South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and 
Texas on July 10, 2001 (66 FR 36038). In February 2003, two North 
Carolina counties (Dare and Hyde) and a beach access group (Cape 
Hatteras Access Preservation Alliance) filed a lawsuit challenging our 
designation of four units of critical habitat on the Cape Hatteras 
National Seashore (CAHA), North Carolina (Units NC-1, NC-2, NC-4, and 
NC-5). In 2004, the U.S. District Court for the District of Columbia 
remanded to us the 2001 designation of the four units (Cape Hatteras 
Access Preservation Alliance v. U.S. Department of the Interior, 344 F. 
Supp 2d 108). In response to the court's order, on June 12, 2006, we 
published a proposed rule to designate critical habitat for the 
wintering population of the piping plover in North Carolina (71 FR 
33703). That proposed rule described four coastal areas (units renamed 
NC-1, NC-2, NC-4, and NC-5), totaling approximately 1,827 acres (ac) 
(739 hectares (ha)) entirely within CAHA. On May 31, 2007, we announced 
in the Federal Register the availability of a draft economic analysis 
and environmental assessment for the June 12, 2006, proposed rule (72 
FR 30326). On May 15, 2008, we announced a revision to the proposed 
critical habitat unit NC-1, to include the islands DR-005-05 and DR-
005-06 (Dare County), owned by the State of North Carolina, and 
portions of Pea Island National Wildlife Refuge (PINWR; Dare County), 
and to proposed critical habitat unit NC-4, to include island DR-009-
03/04 (Dare and Hyde Counties), owned by the State of North Carolina 
(73 FR 28084). The revised critical habitat units for the proposed rule 
total approximately 2,043 ac (827 ha) in Dare and Hyde Counties.
    On October 18, 2007, an action was filed against the National Park 
Service (NPS) in the United States District Court for the Eastern 
District of North Carolina, alleging that the management of off-road 
vehicles at CAHA, which includes the proposed critical habitat areas, 
was inadequate (Defenders of Wildlife et al. v. National Park Service 
et al., No 2:07-CV-45-BO (E.D.N.C.)). On April 16, 2008, all parties 
filed with the court a proposed Consent Decree. The Consent Decree, 
approved April 30, 2008, continues management described in the NPS's 
Interim Protected Species Management Strategy (hereafter referred to as 
Interim Strategy), but also requires pre-nesting areas for piping 
plover as well as other shorebirds to be closed to vehicles and 
pedestrians at historic nesting areas at Bodie Island spit, Cape Point, 
Hatteras spit, and the north and south ends of Ocracoke Island. It also 
includes expanded buffers around breeding sites with nests and chicks 
that vary depending on the sensitivity or vulnerability of the 
particular species. These closures are a result of agency actions 
affecting the species and reports on species protected by the Migratory 
Bird Treaty Act (16 U.S.C. 703-712) and would occur regardless of our 
proposed critical habitat designation.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the piping plover during three 
comment periods. The first comment period, associated with the 
publication of the proposed rule (71 FR 33703), opened on June 12, 
2006, and closed on August 11, 2006. We also requested comments on the 
proposed critical habitat designation, associated draft economic 
analysis, and draft environmental assessment during a second comment 
period which opened May 31, 2007, and closed on July 30, 2007 (72 FR 
30326). During this comment period, we held a public hearing on June 
20, 2007. Finally, we requested comments on the revised proposed 
critical habitat designation, revised associated draft economic 
analysis, and revised draft environmental assessment during a third 
comment period which opened May 15, 2008, and closed June 16, 2008 (73 
FR 28084). During these three comment periods we also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule

[[Page 62817]]

and/or draft economic analysis and draft environmental assessment.
    During the first comment period, we received 84 comments directly 
addressing the proposed critical habitat designation. During the second 
comment period, we received 1,441 comments directly addressing the 
proposed critical habitat designation and the draft economic analysis 
and environmental assessment. Of the comments received during the 
second comment period, approximately 800 were submitted as two 
different form letters from individuals or organizations. During the 
June 20, 2007, public hearing, 36 individuals or organizations made 
comments on the designation of critical habitat for the wintering 
piping plover. During the third comment period, we received 489 
comments directly addressing the proposed critical habitat designation. 
Comments received were grouped into nine general issues specifically 
relating to the proposed critical habitat designation for the wintering 
piping plover, and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from eight knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of the 
eight peer reviewers. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer stated that the data used in the 
2006 proposed rule to evaluate the distribution and abundance of piping 
plover along the Outer Banks was satisfactory to determine key 
locations where wintering piping plover had been observed, but 
expressed concern that such data were generally not the results of 
thorough and complete censuses of all beach, island, and intertidal 
habitats. The reviewer also expressed concern for the absence of 
reference to studies, such as Nicholls and Baldassarre 1990 [Nicholls, 
J.L., and G.A. Baldassarre. 1990. Winter distribution of piping plovers 
along the Atlantic and Gulf coasts of the United States. 102:400-412 
and Nicholls, J.L., and G.A. Baldassarre. 1990. Habitat associations of 
piping plover wintering in the United States. Wilson Bulletin 102:581-
590] and Dinsmore et al. 1998 [Dinsmore, S.J., J.A. Collazo, and J.R. 
Walters. 1998. Seasonal numbers and distribution of shorebirds on North 
Carolina's Outer Banks. Wilson Bulletin 110:171-181] that provide 
information on the distribution and abundance of piping plovers.
    Our Response: We reviewed and cited the two studies by J.L. 
Nicholls and G.A. Baldassarre in our July 10, 2001, designation of 
critical habitat for the wintering population of the piping plover (66 
FR 36038). Although we did not specifically cite the Dinsmore et al. 
1998 study in the June 12, 2006, proposed rule or May 15, 2008, revised 
proposed rule, we did review and cite more recent data that incorporate 
the data of Dinsmore and others on the abundance and distribution of 
piping plovers. The data reviewed and referenced in this rule are cited 
as unpublished and were extracted from the North Carolina Wildlife 
Resources Commission's (NCWRC) statewide database on the occurrence of 
piping plovers. Because we were reevaluating only the issues addressed 
by the courts and only for the four units (Units NC-1, NC-2, NC-4, and 
NC-5) vacated and remanded back to us (Cape Hatteras Access 
Preservation Alliance v. U.S. Department of the Interior, 344 F. Supp 
2d 108), we did not repeat the analysis on the abundance or 
distribution of piping plovers in these four areas to the extent that 
they were analyzed in the July 10, 2001, rule.
    (2) Comment: Several peer reviewers noted that certain activities 
that may adversely affect piping plover habitat that were known to be 
occurring within the proposed critical habitat areas, such artificial 
dune building and the destruction of wrack (marine vegetation) from 
recreational activities, were not specifically identified in the June 
12, 2006, proposed rule.
    Our Response: In the June 12, 2006, proposed rule (71 FR 33703) and 
May 15, 2008, revised proposed rule (73 FR 28084), we referenced the 
July 10, 2001, rule (66 FR 36038), which stated the activities that may 
destroy or adversely modify critical habitat by altering the primary 
constituent elements (PCEs) to an extent that the value of critical 
habitat for both the survival and recovery of the piping plover would 
be appreciably reduced. While we did not specifically address 
artificial dune building or the destruction of wrack as examples that 
may destroy the piping plover's habitat, we did cite ``Beach 
nourishment, cleaning, and stabilization (e.g., construction and 
maintenance of jetties and groins, planting of vegetation, and 
placement of dune fences)'' and ``Certain types and levels of 
recreational activities, such as vehicular activity that impact the 
substrate, resulting in reduced prey or disturbance to the species.'' 
We believe these actions are representative in their effects to the 
piping plover's habitat of artificial dune building and the destruction 
of wrack from recreational activities.
    (3) Comment: Several peer reviewers noted that areas, such as 
portions of Pea Island National Wildlife Refuge (PINWR) and several 
sound-side and inlet channel islands, that provide the physical and 
biological features necessary for the survival and recovery of the 
piping plover were absent from the June 12, 2006, proposed rule. 
Several of the peer reviewers provided data or referenced studies that 
supported their assertion of the importance of these sites. They also 
stated that the management plans identified in support of our exclusion 
of these sites in the June 12, 2006, proposed rule (i.e., PINWR's 
Comprehensive Conservation Plan and the NCWRC's Wildlife Action Plan) 
were insufficient to protect habitats for the wintering population of 
the piping plover.
    Our Response: In our May 15, 2008, revised proposed rule (73 FR 
28084), we modified two of the four units (Unit NC-1, Oregon Inlet and 
NC-4, Hatteras Inlet) described in the June 12, 2006, rule (71 FR 
33703). In the June 12, 2006, rule, we had determined that the islands 
DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare and Hyde 
Counties) owned by the State of North Carolina, and about 137 ac (96 
ha) of PINWR (Dare County) did not meet the definition of critical 
habitat under section 3(5)(A) of the Act. However, we reconsidered our 
preliminary analysis of section 3(5)(A) of the Act and special 
management or protection needs of the PCEs on these lands and 
determined that these areas should be proposed as critical habitat. 
That determination was based on Center for Biological Diversity v. 
Norton, 240 F. Supp 2d 1090, 1099 (D. Ariz. 2003), which held that if a 
habitat is already under some sort of management for its conservation, 
that particular habitat required special management considerations or 
protection and, therefore, meets the definition of critical habitat. 
These additional areas of the revised units are located within the 
range of the population, were occupied at the time of

[[Page 62818]]

listing and are considered currently occupied, and contain habitat 
features essential for the conservation of the wintering population of 
piping plover, as described in the ``Primary Constituent Elements'' 
section of our June 12, 2006, rule.
    (4) Comment: One peer reviewer stated that piping plovers regularly 
use a portion of the beach habitat just west of the proposed critical 
habitat area at Unit 4 (Hatteras Inlet) on Ocracoke Island, and that 
the area had many features that make it attractive for piping plovers. 
The reviewer also suggested that we include an additional \1/2\ mile of 
beach habitat west of the proposed critical habitat area (Unit 4, 
Hatteras Inlet) on Ocracoke Island described in our June 12, 2006, 
proposed rule.
    Our Response: We agree that the area in question may provide 
features that are attractive to piping plovers, including containing 
PCEs, and that the area is used by piping plovers. However, in the 
course of our analysis we did not find sufficient information to 
conclude that the half-mile of beach habitat suggested for inclusion as 
designated critical habitat meets the definition of critical habitat 
(i.e., occurrence data or observations indicated a consistent use by 
piping plovers) as described in our July 10, 2001, final rule (66 FR 
36038) or our June 12, 2006, proposed rule (71 FR 33703). In fact, 
there are many areas of coastal habitats throughout the species' range 
that are not designated as critical habitat that are occupied by piping 
plovers under specific conditions and during various times of the year 
and that have features that are attractive to piping plovers. Not 
including these areas as critical habitat does not imply that the areas 
are not important for the recovery of the species, or that these areas 
do not provide important biological and physical conditions for 
wintering piping plovers. Rather, these areas have not been included 
because they do not meet the definition of critical habitat as defined 
in section 3 of the Act (see ``Critical Habitat'' section below).
    (5) Comment: One peer reviewer questioned the accuracy over time of 
the use of GIS technology to define areas as critical habitat since the 
coastal areas proposed as critical habitat in our June 12, 2006, 
proposed rule were extremely dynamic and regularly erode and accrete. 
They also noted that the exclusion of areas that did not provide the 
PCEs was appropriate, but questioned the status of the areas proposed 
as critical habitat should these structures be removed and/or the PCEs 
form in their place. A similar comment made by another peer reviewer 
questioned the exclusion of suitable unoccupied habitats, and suggested 
that we review and update critical habitat areas on a frequency 
consistent with the formation and destruction of the PCEs.
    Our Response: As required by section 4(b) of the Act and stated in 
the ``Methods'' section of the June 12, 2006, proposed rule, we use the 
best scientific data available in determining areas that contain the 
physical and biological features that are essential to the conservation 
of the wintering population of the piping plover. As noted by several 
of the reviewers, designating specific locations of critical habitat 
for the wintering piping plovers is difficult because the coastal areas 
they use are constantly changing due to storm surges, flood events, and 
other natural geo-physical alterations of beaches and shoreline. Thus, 
to best insure that areas containing features considered essential to 
the piping plover were included in the proposed designation, we 
developed textual unit descriptions that would constitute the 
definitive determination if an area is within the critical habitat 
boundary. Our textual unit descriptions describe the geography of the 
area using reference points, including the areas from the landward 
boundaries to the mean lower low water (which encompasses intertidal 
areas that are essential foraging areas for piping plovers), and 
describe areas within the unit that are utilized by the piping plover 
and contain the PCEs (e.g., upland areas used for roosting and wind 
tidal flats used for foraging). Our textual descriptions also exclude 
features and structures (e.g., buildings, roads, etc.) that are not or 
do not contain PCEs. This method accounts for normal erosion and 
accretion processes occurring within the boundaries of the critical 
habitat unit description.
    (6) Comment: One peer reviewer questioned a statement in the 
methodology of our June 12, 2006, proposed rule that areas may be 
excluded from consideration as critical habitat if ``the area was 
small, highly fragmented, or isolated and may provide little or no 
long-term conservation value.'' The peer reviewer requested 
clarification of this statement.
    Our Response: In the ``Criteria Used To Identify Critical Habitat'' 
section of our June 12, 2006, proposed rule, we listed the conditions 
under which critical habitat was identified and considered. The 
identification of areas that were ``small, highly fragmented, or 
isolated and may provide little or no long-term conversation value'' 
was one of several criteria used in the decision process. Not including 
such areas as critical habitat does not imply that these areas are not 
important for the long-term conservation of the species, or that the 
areas do not provide important biological and physical conditions for 
wintering piping plovers. Rather, such areas area not included as 
critical habitat because they do not meet the definition of critical 
habitat as defined in section 3 of the Act (see ``Critical Habitat'' 
section below).
    (7) Comment: One peer reviewer stated that the sentence ``managing 
access might also improve the available habitats for the conservation 
of piping plovers'' in our June 12, 2006, proposed rule was lacking and 
understated. The reviewer provided references to six additional studies 
that support the premise that managing access, and particularly off-
road vehicle use, improves habitat quality for the piping plover.
    Our Response: While we were not able to review all of the studies 
referenced by the reviewer because those documents were not readily 
available to us, we did find the information published in the 
referenced scientific peer-reviewed journals or papers (3 of the 6 
referenced by the peer reviewer) to be supportive of our statement and 
that managing access can improve habitat quality for the piping plover. 
Our comment in the June 12, 2006, proposed rule was intended to 
indicate that managing access is one way to improve habitats for the 
conservation of piping plovers at the individual areas identified as 
proposed revised critical habitat.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the wintering piping plover are addressed below.
    (8) Comment: The NCWRC expressed concern that certain areas, such 
as the north end of PINWR and several sound-side and inlet islands, 
that provide the physical and biological features necessary for the 
survival and recovery of the piping plover were absent from the June 
12, 2006, proposed rule. The State agency provided data and referenced 
studies and reports that supported their assertion of the importance of 
these sites. They also stated that the management plans identified in 
support of our exclusion of these sites in the June 12, 2006, proposed 
rule (i.e., PINWR's

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Comprehensive Conservation Plan and the NCWRC's Wildlife Action Plan) 
were insufficient to protect habitats for the wintering population of 
the piping plover.
    Our Response: See our response to comment 3.
    (9) Comment: The NCWRC asked for clarification of the ownership of 
``emergent sandbars'' within the inlet channels as described in our 
June 12, 2006, proposed rule. Specifically, the agency asked for a 
description of the extent of the proposed critical habitat south and 
west of Oregon Inlet. The agency also recommended that all emergent 
sandbars be included as critical habitat.
    Our Response: In our June 12, 2006, proposed rule and May 15, 2008, 
revised proposed rule, we identified specific islands as critical 
habitat and acknowledged their ownership. These islands were identified 
as DR-005-05 and DR-005-06 (Dare County) and DR-009-03/04 (Dare and 
Hyde Counties) owned by the State of North Carolina, and Green Island 
(Dare County), owned by NPS. Our textual unit descriptions describe the 
geography of the area using reference points, and describe areas within 
the unit that are utilized by the piping plover and contain the PCEs. 
Future islands and/or emergent sandbars created or formed within the 
boundary limits of critical habitat identified in this designation will 
be considered critical habitat if they contain the habitat features 
essential for the conservation of the wintering population of piping 
plover, regardless of their ownership. The designation of critical 
habitat does not affect, and is not affected by, the ownership of the 
property.

Public Comments

General Biological Comments

    (10) Comment: Several commenters questioned differences in the 
status of the piping plover recognized under the Act and by other 
organizations, stating that the species was listed only as ``Near 
Threatened'' by Birdlife International. One commenter also appeared 
confused by its listing status under the Act and its ability to migrate 
between its breeding grounds and its wintering grounds, stating the 
piping plover is ``not an endangered species, but a migratory 
species.''
    Our Response: The listed status of a species may vary among 
organizations based on their individual listing categorizations and/or 
criteria for listing a species and may depend on many factors important 
solely for the designating organization (e.g., local and/or regional 
population size, geographical range and conditions, threats, and the 
probability of extinction/extirpation). The Act is the only Federal law 
that designates a species as endangered or threatened with a regulation 
to provide specific Federal protections for the species.
    The ``Near Threatened'' status assigned to the piping plover by 
Birdlife International is based on the International Union for 
Conservation of Nature (IUCN) Red List Category and Criteria (ver. 3.1 
(2001)), which defines Near Threatened species as ``a taxon [that] has 
been evaluated against the criteria but does not qualify for Critically 
Endangered, Endangered or Vulnerable now, but is close to qualifying 
for or is likely to qualify for a threatened category in the near 
future.'' Birdlife International provides the following justification 
for the Near Threatened status for the piping plover: ``This species 
has a small population which has declined significantly since the 
1950s. However, there have been overall population increases since 1991 
as a result of intensive conservation management, so the species is 
listed as Near Threatened. It is still dependent on intensive 
conservation efforts, so if these cease, or if trends reverse, then it 
would warrant immediate uplisting again.''
    Under the Act, species are listed as endangered or threatened. A 
species is added to the list when it is determined to be endangered or 
threatened because of any of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; or (5) the natural or manmade factors 
affecting its survival. Using these criteria, we published a final rule 
listing the piping plover as endangered in the Great Lakes watershed 
and threatened elsewhere within its range on December 11, 1985 (50 FR 
50726). All piping plovers on migratory routes outside of the Great 
Lakes watershed or on their wintering grounds are considered threatened 
under Federal law. The ability of a species to migrate between breeding 
grounds and wintering grounds does not affect its listing status under 
the Act.
    (11) Comment: Several commenters stated that CAHA does not provide 
much environmental value for the piping plover or is not essential to 
the existence of the species because CAHA is on the fringe of the 
species' wintering and breeding grounds. Many of these commenters 
argued that for these reasons critical habitat should not be designated 
at CAHA.
    Our Response: For sites that were occupied at the time a species is 
listed, as these sites were, the criterion for designating sites as 
critical habitat is not whether sites are essential to prevent 
extinction; it is whether the sites provide the features essential for 
the conservation of the species and may require special management 
consideration or protection. The areas we have designated as critical 
habitat are areas which contain the physical and biological features 
essential to the conservation of the species. These areas contain 
sufficient features to support piping plover life processes and, 
therefore, provide environmental value for the piping plover. The 
designation of critical habitat for the wintering population of the 
piping plover includes habitats important for both wintering and 
migrating piping plovers.
    Although CAHA is on the fringe of the species' wintering and 
breeding grounds, it is regularly used by piping plovers. We note that 
few piping plovers use the areas during the winter months (i.e., most 
sites have fewer that 20 birds during these months); however, these 
sites are very important for migrating piping plovers. As many as 100 
birds have been recorded at sites designated as critical habitat on a 
single day during the migratory period.
    (12) Comment: One commenter stated that the decline in the piping 
plover can be attributed to extinction and that extinction was a 
natural selection process at work. However, the commenter provided no 
data or other documentation that suggested the decline in piping 
plovers was attributed to extinction.
    Our Response: Extinction is a natural process. Normally, new 
species develop through a process known as speciation at about the same 
rate that other species become extinct. However, because of air and 
water pollution, over-hunting, extensive deforestation, the loss of 
wetlands, and other human-induced impacts, extinctions are now 
occurring at a rate that far exceeds the speciation rate. Congress, on 
behalf of the American people, passed the Act to prevent extinctions 
facing many species of fish, wildlife, and plants. The purpose of the 
Act is to conserve endangered and threatened species and the ecosystems 
on which they depend as key components of America's heritage.
    We published a final rule listing the piping plover as endangered 
and threatened under the Act on December 11, 1985 (50 FR 50726). While 
hunting is thought to have been a major factor

[[Page 62820]]

contributing to the decline of the piping plover in the late 19th and 
20th centuries, shooting of the piping plover and other migratory birds 
has been prohibited since 1918 under the provisions of the Migratory 
Bird Treaty Act. Habitat loss and degradation, disturbance by humans 
and pets, and increased predation were cited as important causes of the 
downward trend that started in the late 1940s (50 FR 50726) and 
continues to the present time in some portions of the species' range. 
Several factors continue to contribute to the decline of the piping 
plover along the Atlantic Coast. These factors include:
     Commercial, residential, and recreational development, 
which have decreased the amount of coastal habitat available for piping 
plovers to nest and feed.
     Human disturbance, which often curtails breeding success. 
Foot and vehicular traffic may crush nests or young. Excessive 
disturbance may cause the parents to desert the nest, exposing eggs or 
chicks to the summer sun and predators. Interruption of feeding may 
stress juvenile birds during critical periods in their development or 
wintering birds trying to obtain food resources for energy reserves to 
complete long migrations.
     Pets, especially dogs, which may harass the birds.
     Developments near beaches, which provide food that 
attracts increased numbers of predators such as raccoons, skunks, and 
foxes. Domestic and feral cats are also very efficient predators of 
plover eggs and chicks.
     Storm-tides, which may inundate nests.
    (13) Comment: Many commenters stated that it is not necessary to 
designate critical habitat at CAHA because populations of the piping 
plover have been stable or increasing in CAHA and overall for the last 
20 years. Many argued that no more than 15 breeding pairs have been 
recorded at CAHA and less than 1 percent of the total population of 
piping plovers can be found using CAHA at any time. Many wondered how 
habitat can be critical to a species' survival when less than 1 percent 
of the population will ever nest, breed, feed, or rest at CAHA.
    Our Response: In general, the breeding population of the piping 
plover at CAHA has declined since the species was listed under the Act; 
however, the breeding population has increased in recent years from the 
lowest number of breeding pairs recorded in 2002 and 2003 (two pairs 
each year). It is more difficult to ascertain the exact number of 
piping plovers using CAHA during the migration and wintering periods 
because regular and comprehensive surveys are not conducted during 
these times. However, CAHA is geographically important for piping 
plovers. Many of the piping plovers nesting north of CAHA along the 
Atlantic Coast will migrate through CAHA to the wintering grounds. 
Likewise, those same birds may use the habitats at CAHA during their 
return migration north to the breeding grounds. Piping plovers from the 
Great Lakes and possibly the Great Plains populations also use CAHA 
during these migrations (Pompei and Cuthbert 2004). One-day bird counts 
have recorded as many as 100 piping plovers at a single location within 
CAHA (NCWRC unpublished data).
    In this designation, we identified areas along the coast that 
contain the PCEs and where occurrence data indicate a consistent use by 
wintering piping plovers. The essential features found on the 
designated areas may require special management consideration or 
protection. We believe that the designated areas are sufficient, and 
are needed to support piping plovers for recovery.
    (14) Comment: One commenter asked about the need for further 
closures since piping plover numbers have more than doubled at CAHA 
since 2004. Another commenter stated that under the existing NPS 
management plan, piping plovers are witnessing an increase in number 
and moving toward the goal of recovery.
    Our Response: We assume that the commenters are referring to 
increases in the number of breeding pairs of piping plovers at CAHA. 
Though this increase is real and represents positive and encouraging 
progress toward piping plover recovery, we note that this rule 
identifies and designates critical habitat for wintering piping 
plovers. As such, it is not intended to address issues related to the 
breeding season. We also note that closures are implemented by NPS 
under the Interim Strategy and Consent Decree; any additional closures 
are at the discretion of NPS.
    (15) Comment: One commenter asked why the Service does not raise 
piping plovers in captivity like the bald eagle. Another commenter 
asked why the Service does not move the piping plover to PINWR since 
that area was established for wildlife.
    Our Response: Piping plovers exhibit relatively high site fidelity, 
returning year after year to the same wintering sites on both the 
Atlantic and Gulf Coasts (e.g. , Johnson and Baldassarre 1988; USFWS 
1996; Zonick and Ryan 1993). Furthermore, the purpose of the Act is to 
provide a means to protect the ecosystems upon which endangered and 
threatened species depend. Captive propagation is used in certain rare 
cases in which populations of the species in question are at extremely 
low numbers such that the species is very close to extinction and where 
the species' life history lends itself to captive propagation. Neither 
is the case with the piping plover. Instead, our general strategy for 
endangered species conservation is to work with others to ensure that 
the ecosystems upon which listed species depend are healthy enough to 
support recovered populations. We note again that this critical habitat 
designation is intended to address habitat for wintering piping 
plovers. As such, the reproductive capacity of the piping plover 
populations was not a factor in evaluating which areas we would 
designate as critical habitat.
    (16) Comment: Three commenters asked the Service to consider 
closing areas once nests have been identified rather than closing the 
entire seashore.
    Our Response: As stated above, this critical habitat designation is 
for the wintering population of the piping plover. These designations 
will have no effect on actions on CAHA, PINWR, or the State-owned 
islands related to the management of breeding piping plovers. Decisions 
regarding the management of areas used by breeding piping plovers on 
CAHA are under the exclusive purview of the NPS.
    (17) Comment: A few commenters suggested that we consider 
controlling predators such as foxes, feral cats, and weasels that 
destroy piping plover eggs and chicks.
    Our Response: See our response to comment 16 above.
    (18) Comment: One commenter stated that storms have a significant 
impact on piping plover habitat and questioned why we did not consider 
the effect of large storms in our designation. The commenter referenced 
a decline in the breeding piping plover population at CAHA during the 
late 1990s when a series of large storm events affected the North 
Carolina coastline and an increase in breeding piping plovers since 
2005 when no major storm events were recorded.
    Our Response: This critical habitat designation is for the 
wintering population of the piping plover. The effect of storms on 
breeding piping plover numbers at CAHA was not a point considered in 
the designation of critical habitat for the wintering population of 
piping plovers.

[[Page 62821]]

Site-Specific Biological Comments

    (19) Comment: We received numerous comments requesting that CAHA be 
excluded from critical habitat on the basis that PINWR was excluded in 
our June 12, 2006, proposed rule.
    Our Response: In our May 15, 2008 revised proposed rule, we revised 
Unit 1 to include PINWR as proposed critical habitat (See our response 
to comment 3). We have determined that all areas identified as critical 
habitat on CAHA meet the definition of critical habitat and have 
designated it as such in this final rule. All areas of the revised 
units are located within the range of the population, were occupied at 
the time of listing and are considered currently occupied, and contain 
habitat features essential for the conservation of the wintering 
population of piping plover that require special management, as 
described in the ``Primary Constituent Elements'' section of our June 
12, 2006, rule and the ``Special Management Considerations or 
Protections'' section of this rule.
    (20) Comment: Several commenters stated that we failed to provide 
evidence that the increase in park visitation and ORV use was the 
reason for a decline in the piping plover population at CAHA.
    Our Response: In our proposed designation, we made a correlation 
between increasing park visitation and ORV use and piping plover 
habitat use and population numbers at CAHA. Our use of these data in 
this context is intended to indicate that the critical habitat areas 
contain the physical and biological features essential to the 
conservation of the species and that the features may require special 
management and protections.
    (21) Comment: With regard to pedestrian disturbances to piping 
plover, one commenter wrote that piping plovers are recovering nicely 
at Nantucket, Massachusetts, where the beach is closed to vehicles 
only, but not to pedestrians. Another commenter asked that the areas 
remain open to pedestrians, while one additional commenter stated that 
the literature on pedestrian disturbance lacks any statistics on 
mortality.
    Our Response: As stated above, this critical habitat designation is 
for the wintering population of the piping plover. It will have no 
effect on actions on CAHA, PINWR, or the State-owned islands related to 
the management of breeding piping plovers. Furthermore, the designation 
of critical habitat for wintering piping plovers does not establish 
closures, refuges, or other restrictions on use or access to the 
designated areas. Decisions regarding pedestrian and vehicle access to 
portions of CAHA are under the purview of the NPS. We note that the 
Service and NPS previously conferred on the effects of the Interim 
Strategy on the proposed critical habitat units and determined that the 
Interim Strategy would not result in adverse modification of wintering 
piping plover critical habitat.

Section 7 Consultation

    (22) Comment: Many commenters expressed concern or raised questions 
regarding the effects of critical habitat designation on the 
consultation process under section 7 of the Act, specifically the 
effect of designation on the replacement of the Herbert C. Bonner 
Bridge over Oregon Inlet and the repair of the North Carolina Highway 
12 transportation corridor. Many also expressed concern for 
implementation of emergency services (e.g. , ferry service, power/
electrical systems services from Hatteras Island to Ocracoke Island) to 
the islands.
    Our Response: With regard to the replacement of the Herbert C. 
Bonner Bridge over Oregon Inlet, we prepared a biological and 
conference opinion that concludes replacement of the bridge and the 
transportation corridor is not likely to destroy or adversely modify 
proposed critical habitat for the wintering population of the piping 
plover. We also note that critical habitat for wintering piping plovers 
has been designated and in place at 119 units along the Atlantic and 
Gulf coasts since 2001 (n.b., 142 units designated before courts 
vacated 4 units in North Carolina in 2004, and 19 units in Texas in 
2006). During that time, to the best of our knowledge, no Federal 
projects have been delayed or substantially altered by the presence of 
designated critical habitat.
    With regard to emergency situations, the Service has provisions 
under the Act that recognize that an emergency (natural disaster or 
other calamity) may require expedited coordination and/or consultation. 
Where emergency actions are required that may affect listed species 
and/or critical habitats, consultations are handled with as much 
understanding of the action agency's critical mission as possible while 
ensuring that anticipated actions will not violate the Act. Emergency 
consultation procedures allow action agencies to incorporate endangered 
species concerns into their actions during the response to an 
emergency. For example, the initial stages of emergency consultations 
usually are done by telephone or facsimile, followed by written 
correspondence from the Service. During this initial contact, or soon 
thereafter, the Service offers recommendations to minimize the effects 
of the emergency response action on listed species or their critical 
habitat. This written record provides the requesting agency with a 
formal document reminding them of the commitments made during the 
initial step in emergency consultation. As soon as practicable after 
the emergency is under control, the action agency initiates formal 
consultation with the Service if listed species or critical habitat 
have been adversely affected. This process is designed to provide 
protective measures for listed species and their habitats and will not 
prevent necessary action when human life is at stake.
    (23) Comment: Many commenters referenced the inclusion of emergent 
sandbars in the designation of critical habitat and are concerned that 
they have the potential to stop or delay dredging to maintain critical 
channels in Oregon, Hatteras, and Ocracoke Inlets. They stated that 
closed channels would affect commercial fishing vessels, charter 
fishing vessels, and recreational use at these three inlets, as well as 
ferry traffic to Ocracoke Island. One commenter specifically asked the 
Service to consider the impact of new inlets, erosion, and sand 
shifting relative to their impacts on commerce and safety and suggested 
that any new rules should not significantly delay the maintenance of 
current inlets and channels used by commercial fishermen or the ferry 
system.
    Our Response: The U.S. Army Corps of Engineers (Corps) is the 
Federal agency responsible for maintaining navigational channels, and 
as such, they are required to ensure that their actions do not 
jeopardize the continued existence of listed species or adversely 
modify critical habitat for listed species. Should channels be 
obstructed by sediment or emergent sandbars, the Corps may consult with 
the Service in order to determine how best to provide access to these 
areas while minimizing effects to piping plovers or their critical 
habitat. Again, we note that critical habitat for wintering piping 
plovers has been designated and in place for 119 units since 2001, and 
that during that time, to the best of our knowledge, no Federal 
projects have been delayed or substantially altered by the presence of 
designated critical habitat.

Public Involvement/Coordination

    (24) Comment: Several commenters stated that the June 20, 2007, 
public hearing was poorly advertised and unknown to a majority of the 
affected public entities and local businesses.

[[Page 62822]]

One organization requested a second public hearing on Ocracoke Island.
    Our Response: The June 20, 2007, public hearing was announced in a 
press release and in the notice of availability published in the 
Federal Register on May 31, 2007 (72 FR 30326). The press release was 
submitted to 14 newspapers in North Carolina and Virginia, Federal and 
State representatives, Dare and Hyde County commissioners, other 
Federal and State agencies, conservation organizations and other non-
governmental organizations, special interest groups, and other 
interested parties. The Service also purchased advertisements 10 days 
prior to the public hearing in the following newspapers: Outer Banks 
Sentinel, Coastland Times, and News and Observer. In addition, the 
announcement for the public hearing was provided on the Service's 
Raleigh Ecological Services Field Office Web site beginning May 31, 
2007.
    Section 4(b)(5) of the Endangered Species Act states, ``[w]ith 
respect to any regulation proposed by the Secretary to implement a 
determination, designation, or revision referred to in subsection 
(a)(1) or (3) [proposed or final rule to list a species as endangered 
or threatened, or proposed or final rule to designate any habitat of 
such species to be critical habitat], the Secretary shall * * * 
promptly hold one public hearing on the proposed regulation if any 
person files a request for such a hearing within 45 days after the date 
of publication of general notice.'' We have met this requirement.
    (25) Comment: Over the course of the rulemaking process and the 
three public comment periods, a few commenters wrote to request that 
each public comment period be extended for an additional 6 months.
    Our Response: We requested written comments from the public on the 
proposed designation of critical habitat for the wintering population 
of the piping plover during three comment periods totaling 150 days. 
The first comment period, associated with the publication of the 
proposed rule (71 FR 33703), opened on June 12, 2006, and closed on 
August 11, 2006. We also requested comments on the proposed critical 
habitat designation, associated draft economic analysis, and draft 
environmental assessment during a comment period that opened May 31, 
2007, and closed on July 30, 2007 (72 FR 30326). During this comment 
period, we also held a public hearing on June 20, 2007. Finally, we 
requested comments on the revised proposed critical habitat designation 
and associated revised draft economic analysis and environmental 
assessment during a comment period that opened May 15, 2008, and closed 
June 16, 2008 (73 FR 28084). We have provided ample time for the public 
to comment on the proposed rules and associated draft economic analysis 
and draft environmental assessment.
    (26) Comment: A few commenters wrote with regard to the public 
review process. Specifically, during the 2006 public comment period, a 
commenter asked for information about submitting comments on the 
proposed designation electronically. Another commenter requested the 
Service provide access to reports and other information about the 
critical habitat designation in both electronic (online) and printed 
forms. One other commenter requested copies of all public comments 
received.
    Our Response: During the first two comment periods (2006 and 2007), 
the Service accepted comments in either hard copy or electronic format. 
During the 2008 comment period, commenters were allowed to provide 
comments electronically through the Web site https://
www.regulations.gov. Information regarding the submission of public 
comments was provided in the Federal Register at the opening of each 
comment period. All documents associated with the designation of 
critical habitat were posted on the Service's Raleigh Ecological 
Services Field Office Web site. A complete copy of the supporting 
record, including reports used to make our decisions, public comments 
received, and other information relevant to this critical habitat 
designation, are on file in the Raleigh Ecological Services Field 
Office and available for public review by appointment.

Best Information/Science

    (27) Comment: Several commenters were concerned that the Service 
was designating critical habitat without using the current and best 
available science, stating that insufficient justification was provided 
in the documents, that no current scientific information was provided 
which proves that the proposed areas are essential to the recovery of 
the piping plover, and that we ignored some current studies which 
suggest that the piping plover has made significant strides towards 
recovery. One commenter specifically wrote that recent studies were ill 
conceived and did not take long range numbers into respect. Another 
commenter wrote that critical habitat designation is not needed and 
that the Service failed to justify the designation with contemporary 
peer-reviewed science.
    Our Response: The commenters did not provide any additional 
scientific information on which they based their comments. As required 
by the Act, we used the best available scientific information on which 
to base our decision. In this way, we identified areas that contain the 
PCEs, where occurrence data indicate a consistent use by piping 
plovers, and where the essential features of the areas may require 
special management consideration or protection to ensure their 
contribution to the species' recovery. Thus, we believe that the 
designated areas are sufficient, are needed to support the conservation 
and recovery of the piping plover, are based on the best available 
science, and meet the definition of occupied critical habitat. As a 
result, we have not designated areas which were not occupied at the 
time of listing and thus would have required a determination that 
designation of those areas is essential to the conservation of the 
species.
    (28) Comment: Many commenters urged the implementation of a 
balanced process for critical habitat designation that takes 
recreational anglers, ORV users, and local sport fishing and related 
businesses into consideration. They further stated that it is important 
that the process of piping plover critical habitat designation rely on 
a balanced mix of biological and economic information and provide solid 
evidence of a conservation benefit.
    Our Response: Section 4(b)(2) of the Act states that critical 
habitat shall be designated and revised on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact, of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of including that area 
in critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion as to which 
factors and how much weight will be given to any factor.
    With regard to economic impacts, the primary purpose of the 
economic analysis is to estimate the potential economic impacts 
associated with the designation of critical habitat for the wintering 
population of the piping plover. This information is intended to assist 
the Secretary in making decisions about whether the benefits of 
excluding

[[Page 62823]]

particular areas from the designation outweigh the benefits of 
including those areas in the designation and assessing whether the 
effects of the designation might unduly burden a particular group or 
economic sector. Under section 4(b)(2) of the Act, we must consider 
relevant impacts in addition to economic ones. This process ensures a 
balanced approach to the designation of critical habitat. In other 
words, in designating critical habitat we were required to consider 
economic and other relevant impacts, and we did so (see ``Application 
of Section 4(b)(2)'' below). As a result, we did not exclude any areas 
under section 4(b)(2) of the Act in this final rule.

Definition of Critical Habitat

    (29) Comment: Several commenters questioned why critical habitat is 
designated in otherwise protected areas, such as State lands, national 
seashores, or refuges. We also received many comments questioning the 
need for the critical habitat designation given the protections to the 
piping plover provided by the NPS's Interim Strategy and the on-going 
Off-Road (ORV) Vehicle Management Plan rulemaking process. Conversely, 
several commenters expressed concern over the adequacy of such plans in 
protecting the piping plover and its habitats.
    Our Response: Although lands managed by the State, the NPS, and the 
Service have management plans in place to protect the piping plover and 
its habitat, we have determined, as stated several times within this 
rule, that the essential features require special management and, 
therefore, meet the definition of critical habitat.
    (30) Comment: Several commenters stated that the piping plover 
already receives substantial protections, such as under sections 7 and 
9 of the Act, and questioned why additional protection was necessary.
    Our Response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for species listed as threatened or endangered 
unless such designation would not be prudent. In our proposed rule (71 
FR 33703) we published our determination that designating critical 
habitat would be prudent in that it would not increase the degree of 
threat from human activity and that it would benefit the species. 
Therefore, we are proceeding with the designation.

Effects of Designation

    (31) Comment: Most of the comments that we received in opposition 
to the designation of critical habitat were based on the desire for the 
beaches to remain open to ORV and pedestrian use for the purposes of 
fishing, collecting seashells, sunbathing, and other forms of beach-
related recreation. Some commenters said that CAHA was designated as a 
``Recreational Area'' and, therefore, should remain open for 
recreational use. One commenter believes that if the beaches are closed 
to ORVs, then tourists will park in front of driveways, use private 
boardwalks, trespass on private property, and walk across dunes, 
destroying them. Another commenter suggested that the Service or the 
NPS continue fencing individual nests as they have done in the past.
    Our Response: The closing of the beaches to ORV and pedestrian use 
is part of the NPS's Interim Strategy and the April 30, 2008, Consent 
Decree. The breeding and wintering closures implemented under the 
Interim Strategy and Consent Decree are based on the location of 
nesting sites and location of chicks (breeding closures) and foraging 
areas (wintering closures). Critical habitat is based on areas which 
the Service determined to contain physical or biological habitat 
features needed for the conservation of the piping plover. Closures 
associated with implementation of the Interim Strategy or the Consent 
Decree would occur regardless of our critical habitat designation. The 
designation of critical habitat for wintering piping plovers does not 
establish closures, refuges, or other restrictions on use or access to 
the designated areas.
    Decisions regarding pedestrian and vehicle access to portions of 
CAHA and other management strategies are under the purview of the NPS. 
We note that the Service and NPS previously conferred on the effects of 
the Interim Strategy on the proposed critical habitat units and 
determined that the Interim Strategy would not result in adverse 
modification of wintering piping plover critical habitat.
    (32) Comment: Many comments we received recommended the Service 
find a balance between piping plover protection and recreational 
access. One commenter wrote that the use of ORV corridors has worked in 
the past and continues to be a viable option for coexistence between 
man and nature.
    Our Response: We agree that piping plovers and people can co-exist 
in wintering areas. The NPS is responsible for the management of 
endangered and threatened wildlife on CAHA, and makes decisions 
regarding the protection of the wildlife and their habitats necessary 
for their survival and recovery. The Service has provided and will 
continue to provide technical assistance to the NPS in such matters of 
endangered and threatened wildlife and habitat management. However, as 
explained in this final rule, the Act requires that we designate 
critical habitat for listed species unless we find that designating 
critical habitat is not prudent or determinable. In addition, the fact 
that people use areas used by plovers does not provide sufficient 
justification for not designating critical habitat.

Economics

    (33) Comment: Many of the public comments raised issues related to 
management measures that are not directly related to the current 
critical habitat designation (e.g., NPS Interim Strategy and the 
Consent Decree). For example, one commenter noted that the Consent 
Decree has caused layoffs and trip cancellations which have resulted in 
economic impacts to local residents that are not considered in the 
draft economic analysis (DEA).
    Our Response: The Service recognizes that a high level of public 
concern exists regarding future ORV management at CAHA, including 
recent changes to that management under the Consent Decree. However, it 
is the role of this economic analysis to distinguish between economic 
impacts resulting from ongoing events and those that may occur due to 
critical habitat (see section 1.4 of the final economic analysis 
(FEA)). That is, this analysis focuses on the incremental impact of the 
designation-impacts that would not occur absent critical habitat. As 
stated in section 2.3.3 of the FEA, which discusses the low-end 
scenario, the NPS does not anticipate changing its management of CAHA 
due to the designation. Additional discussion of the Consent Decree can 
be found in section 2.2.1.2 of the FEA.
    (34) Comment: One commenter stated that the potential benefits of 
the critical habitat designation should be quantified.
    Our Response: Section 1.5 of the FEA discusses possible benefits of 
the designation. Based on the best information available, it is not 
possible to estimate a potential increase in other types of visitation 
that might result from a decrease in ORV traffic (i.e., there are no 
available data models to predict how non-ORV visitation will change in 
response to changes in ORV visitation). The NPS has not observed 
significant trends in visitation related to past management closures, 
and the NPS does not anticipate substantially increased visitation to 
the park resulting from management closures (see section 2.3.1.2 of the 
FEA).

[[Page 62824]]

    (35) Comment: Several commenters believed that the 20-year 
timeframe used in the draft economic analysis (DEA) is too long, 
stating that it is impossible to estimate impacts out over 20 years.
    Our Response: To produce credible results, the FEA must consider 
impacts that are reasonably foreseeable. Based on available data, the 
Service believes that the impacts presented are reasonably foreseeable 
(see section 1.6 of the FEA).
    (36) Comment: One commenter stated that the DEA does not accurately 
apply a baseline approach and instead includes all impacts of 
conservation activities since the listing of the species in 1985.
    Our Response: The commenter appears to refer to section 1.6, which 
states that the DEA ``estimates economic impacts to activities from 
1985 (year of the species' final listing) to 2026.'' However, the 
results presented in section 2 of the FEA do not include any past 
impacts resulting from wintering piping plover conservation activities, 
stating ``this analysis does not attribute the impacts of past closures 
to critical habitat.'' Section 3 does report some past administrative 
costs based on the assumption that, due to the previous critical 
habitat, NPS either was required, or believed it would be required, to 
conduct a consultation under section 7 of the Act on its management 
activities.
    (37) Comment: Several commenters stated that the DEA failed to 
conduct a survey of local businesses.
    Our Response: A survey regarding the specific potential effects of 
management closures on individual businesses is beyond the scope of 
this analysis. The DEA used best available data on such factors as the 
size and annual sales of businesses collected by Dun & Bradstreet.
    (38) Comment: Several commenters noted the high level of 
uncertainty inherent in both estimated impacts and forecasts of future 
management. Several commenters stated that the designation of critical 
habitat will not necessarily lead to a total closure of designated 
areas, and that closure of certain sections of the beach is likely to 
simply shift ORV activity to other open areas. Other commenters stated 
that management of ORV use is likely to change in the future due to 
changes in NPS staff.
    Our Response: The FEA acknowledges uncertainty by providing a range 
of impacts based on two scenarios (see section 2.3.1). The low-end 
scenario assumes that no trips will be lost either because NPS will not 
close additional areas of the beach to ORV use, or because ORV users 
will move their recreational activities to other areas of the park 
without diminishing the value they hold for trips to the park. The 
high-end scenario assumes that all ORV trips to the designated areas 
are lost, and that the value of these lost trips is a cost of the 
rulemaking.
    (39) Comment: One commenter stated that ORV driving at CAHA is 
currently ``illegal,'' and thus no impacts associated with ORV 
recreational activity should be forecast.
    Our Response: Whether or not ORV activity is legal, there is no 
question that it currently takes place at CAHA. Moreover, the court in 
Cape Hatteras Access Preservation Alliance ordered the Service to 
analyze the possible economic impacts of designation on ORV recreation. 
Accordingly, the DEA and FEA both address these impacts.
    (40) Comment: Several commenters noted that the total park acreage 
is not accessible to ORV use. Rather only 10 percent of the park is 
open to ORV use due to various seasonal, safety, and species-related 
closures.
    Our Response: Based on discussions with NPS, the total area 
available for ORV use appears to be highly variable and dependent on a 
number of factors, including weather events and species movement (see 
section 2.3.1.2 of the FEA). Given this high of level of variability, 
it is difficult to estimate the acreage available for ORV use at any 
given time. Therefore, in the absence of fixed closures, the FEA 
assumes that any acre of