Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover (Charadrius melodus, 23476-23600 [E9-11245]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Rules and Regulations]
[Pages 23476-23600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11245]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0055; 92210-1117-0000-FY09-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: 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 18 specific units in Texas under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 139,029 acres (56,263 hectares) fall within the 
boundaries of the revised critical habitat designation. The 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 remains unaffected.

DATES: This final rule becomes effective on June 18, 2009.

ADDRESSES: This final rule, the associated final economic analysis, and 
the final environmental assessment are available on the Internet at 
https://www.regulations.gov or www.fws.gov/southwest/es/Library/. 
Comments and materials we received, as well as supporting documentation 
we used in preparing this final rule, are available for public 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Corpus Christi Ecological Services Field 
Office, 6300 Ocean Drive, TAMU-CC, Unit 5837, Corpus Christi, TX 78412-
5837.

FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S 
Fish and Wildlife Service, Corpus Christi Ecological Services Office 
(see ADDRESSES); 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:

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of revised critical habitat for the 
wintering population of the piping plover in Texas 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 we 
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 we published in the Federal Register 
on July 10, 2001 (66 FR 36038), and the proposed rule to designate 
revised critical habitat for the wintering population of the piping 
plover in Texas we published in the Federal Register on May 20, 2008 
(73 FR 29294). We made available the associated draft economic analysis 
and draft environmental assessment for the proposed rule to designate 
revised critical habitat via publication in the Federal Register on, 
December 9, 2008 (73 FR 74675).

Previous Federal Actions

    We listed 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 listed as 
threatened under the Act due to the difficulty of knowing where they 
bred or were hatched.
    On July 10, 2001, we designated 142 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 miles (mi) (2,892 kilometers (km)) of mapped 
shoreline and approximately 165,211 acres (ac) (66,881 hectares (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 revised that proposal on May 15, 2008 
(73 FR 28084), and published a final designation on October 21, 2008 
(73 FR 62816).
    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 reconsideration (Texas General Land Office v. U.S. 
Department of the Interior, et al., No. 06-CV-00032 (S.D. Tex.). This 
rule addresses only the court-vacated and remanded units (the 19 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.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for the piping plover during 
two comment periods. The first comment period, associated with the 
publication of the proposed rule (73 FR 29294), opened on May 20, 2008, 
and closed on July 21, 2008. We also requested comments on the 
associated draft economic analysis and draft environmental assessment 
during a second comment period, which opened December 9, 2008, and 
closed on January 8, 2009 (73 FR 74675). We did not receive any 
requests for a public hearing. We coordinated with the Texas General 
Land Office and also maintained project by project contact with other 
Federal, State, and local agencies and interested parties working in 
the South Texas coastal area as they needed assistance in determining 
presence of piping plover habitat and critical habitat. Additionally 
Federal, State, and local agencies; scientific organizations; and other 
interested parties could respond to the proposed rule and draft 
economic analysis during the comment periods.
    During the first comment period, we received five sets of comments 
addressing the proposed critical habitat designation. During the second 
comment period, we received a single set of comments, from the GLO, on 
the draft economic analysis and environmental assessment. Comments were 
grouped into general issues relating to the proposed critical habitat 
designation for the wintering piping plover, and are addressed in the

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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 five 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 a response from one of the 
five peer reviewers. The peer reviewer 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: Designating critical habitat may not radically change 
the protection for the plover as it already has protection from take 
under section 7 of the Act. Also, designating critical habitat may not 
change the economic impacts from piping plover habitat protection since 
occupied habitat is still protected, also by section 7, regardless of 
critical habitat designation.
    Our Response: We have noted these comments and addressed them in 
the economic analysis and environmental assessment for this rule. The 
economic impact (cost) in the areas we are designating as critical 
habitat is substantially lower than costs resulting from listing the 
species. However, the economic analysis anticipates that some impacts 
of the designation will be incurred, particularly from avoidance of 
stockpiling materials on sandflats and avoidance of discharging 
freshwater on tidal flats. The impacts of critical habitat designation 
are further discussed in the Economic Analysis section under 
Exclusions, below.
    (2) Comment: The peer reviewer generally approved of the methods 
used to map critical habitat, but expressed concerns at the use of mean 
lower low water (MLLW) as the lower boundary for critical habitat, 
because during extreme low tides plovers feed in the exposed flats. He 
recommended adding a buffer to the MLLW boundary to capture the areas 
exposed during extreme low tides when piping plovers are present.
    Our Response: The extreme low tides expose areas classified by our 
National Wetland Inventory (NWI) as subtidal with rooted vascular 
vegetation, usually seagrass. We are aware the plovers feed on 
organisms found on and around seagrass on the rare occasions when the 
seagrass is exposed during extreme low tides. Wintering piping plovers 
are active during daylight hours and spend the majority of that time 
foraging (Johnson and Baldassarre 1988, pp. 216-217). However, seagrass 
beds are usually submerged and unavailable to the plovers for foraging, 
so we do not consider them to be features essential to the conservation 
of the species (primary constituent elements).
    A critical habitat designation does not signal that habitat outside 
the designated area is unimportant. Since we are aware that, when 
exposed, these areas provide food to the wintering plovers, we will 
focus on individual section 7 consultation jeopardy analyses to 
consider impacts to the species in these areas.
    (3) Comment: The peer reviewer questioned the use of 2005 National 
Agriculture Imagery Program (NAIP) imagery and asked us to specify the 
Geographic Positioning System (GPS) unit used.
    Our Response: The 2005 NAIP aerial photography was the most recent 
imagery available to us that covered all of the area we were 
considering for this revised designation of critical habitat. When 
using aerial photography in a Geographic Information System (GIS), the 
2-dimensional photographs are applied to a 3-dimensional system that 
accounts for the curvature of the Earth. When that is done, each aerial 
photograph becomes distorted, with some parts of the photograph 
distorted more than others. We have no information on how GPS was used 
to generate the NAIP photographs. However, we used a Trimble GeoXT GPS 
unit with TerraSync version 3.01 software to measure the level of 
distortion in order to be certain that we are not including built 
structures in the units we are designating. See the Criteria Used To 
Identify Critical Habitat section, under Critical Habitat, below for 
additional discussion on our use of GPS.
    (4) Comment: The peer reviewer commented on the dynamic nature of 
the coast and occurrence of hurricanes that might make it imprudent to 
designate critical habitat boundaries so precisely. Also, there was 
concern with the use of NWI dataset, which is about 15 years old. 
However, the reviewer believed these concerns might be ameliorated if 
occupied habitat is adequately protected under existing Endangered 
Species Act regulations.
    Conversely, the GLO expressed interest in us establishing 
boundaries more precisely, commenting that more precise boundaries 
should limit the need for buffers. Also, they expressed concern that 
corrections of the gulf-side MLLW data using Unit TX-3 might have led 
to a false 184-foot (ft) (56-meter (m)) average that was too 
generalized and that this overgeneralization was then applied to all 
lower unit boundaries. Also, the GLO questions what was used to define 
boundaries, if the vegetation line was not used to delineate the 
landward limit.
    Our Response: In Cape Hatteras Access Preservation Alliance v. U.S. 
Dept. of the Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court 
found that PCEs must be present in any occupied habitat, in order for 
us to designate that habitat. We are designating only occupied habitat 
for the piping plover wintering population in Texas. We have not 
included additional unoccupied coastal areas in the designation at this 
time because we cannot predict when and where a dynamic coastline shift 
may occur, and whether this will result in new or different areas that 
will develop the PCEs, or if these areas may support plovers.
    In our proposed designation, we created the lines which make up the 
polygons delineating areas containing the essential features by using 
an unadjusted high level of precision for calculating the Universal 
Transverse Mercator coordinates (UTMs). In preparing this final 
designation, we realized that this was an artificial level of 
precision, because the aerial photographs we used in generating 
boundaries have some distortions (see our response to Comment 3 above), 
and because of other GIS-processing reasons (see Methods section under 
Critical Habitat). In other words, the data used did not actually have 
the degree of detail to provide accurate and consistent information to 
that level of precision. It was our desire to eliminate an 
unintentionally confusing and potentially inaccurate degree of 
precision in our calculations. To better reflect the degree of 
reasonable precision available from the existing data and techniques, 
we decided to smooth the lines defining the critical habitat polygons 
using a known and well-published algorithm with a 10-meter tolerance. 
We therefore recalculated the UTM coordinates using the resulting 
smoothed polygons. Using the smoothed polygons allowed us to determine 
the most accurate and reasonably precise delineation of the polygons, 
using the best available science.
    We have effected this change in this final designation, and in so 
doing we have also responded to the comments of both the peer reviewer 
and the GLO by

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using the most appropriate scale and reasonable level of precision, by 
smoothing the edges of the polygons of critical habitat slightly to 
avoid implying a false level of precision. We believe this provides the 
most accurate boundaries we can, using the best scientific information 
available. In the Methods section (under Critical Habitat), we describe 
our use of a polygon smoothing algorithm; it added and deleted slivers 
of area in all of the units and subunits. This resulted in a slight 
addition of area overall, although some units lost a small amount of 
area while others gained a small amount.
    We chose to use the NWI maps and data in bayside areas because it 
allowed us to identify the types of habitat used by the plover and map 
those habitat types. We used this methodology only for bayside areas 
because those areas did not change appreciably over time. The Criteria 
Used To Identify Critical Habitat section below explains how we 
adjusted for areas where changes did occur.
    In order to determine the MLLW, we used digitized data from the 
National Oceanic and Atmospheric Administration (NOAA) of the gulf 
coast in the area of Unit TX-3. It is important to include wetted beach 
areas exposed at low tides in our designation because they are heavily 
used by wintering plovers for foraging. We considered using Light 
Detection and Ranging imagery to map the MLLW; however, recent imagery 
that maps coastal areas that are under water was not available for much 
of the portion of the Texas coast where we are designating critical 
habitat. Therefore, the NOAA digitized data was the best scientific 
information available for use in determining the MLLW.
    Using the NOAA digitized MLLW presented problems because, for most 
of the coastline we were mapping, erosion and accretion from storm 
events had shifted the beach and MLLW from what was digitized by NOAA. 
The exception was with the MLLW for Unit TX-3. The NOAA-defined MLLW 
for that unit runs approximately parallel to the shoreline, following 
the contours of the gulf floor. The metadata provided for the NOAA-
defined MLLW did not provide the year when the MLLW was defined. 
However, based on the alignment of the MLLW approximately parallel to 
the shoreline in Unit TX-3, the MLLW may have been defined more 
recently for that area of the coast than for the other areas where we 
are designating critical habitat. We chose to measure the distance from 
the shoreline to the NOAA-defined MLLW every 328 ft (100 m) for over 30 
miles (48 kilometers) in Unit TX-3 because that provided the most 
accurate way to estimate the MLLW available. We then calculated the 
average of the shoreline to MLLW distance, which was 184 ft (56 m), and 
applied that calculation to the other units.
    We agree with the GLO that using a single number to estimate the 
MLLW is generalizing the MLLW. However, the average was calculated from 
90 measurements from the shoreline to the NOAA-defined MLLW in TX-3, 
and we were unable to identify a better alternative. We used NOAA tidal 
station and bathymetric (ocean water depth) data to confirm that the 
184-ft (56-m) distance from shore provided a reasonable estimate of the 
MLLW. See the Criteria Used To Identify Critical Habitat section below 
for additional discussion. We continue to believe that this method 
utilizes the best scientific information available to us in making this 
critical habitat designation.
    The vegetation line in the NAIP photographs was used to delineate 
the landward limit in all but a few cases. We have added an explanation 
to the Criteria Used To Identify Critical Habitat section (under 
Critical Habitat) below of how we mapped the landward limit when the 
vegetation line was not used.
    (5) Comment: The peer reviewer asked what distance was used to 
determine whether a unit was valuable to piping plovers due to the 
particular unit's proximity to other wintering piping plover 
occurrences.
    Our Response: In this revised designation of critical habitat, we 
did not include areas that were in the original designation that were 
too small or too fragmented (i.e., separated from a larger area) to be 
of utility. In determining whether to include such areas in our revised 
designation, we also considered whether an area was occupied by the 
plover at least 2 years between 1997 and 2007, to compare more recent 
census data to the areas originally occupied at time of listing. We 
have modified our Methods section (under Critical Habitat) to reflect 
our use of these criteria. We did not use plover dispersal capability 
as a criterion for including the small or separated areas in the 
revised designation, and we did not use a specific size or distance to 
define them.
    (6) Comment: The peer reviewer notes that piping plovers are highly 
mobile and may use different sites, depending on daily and seasonal 
tide conditions, and surveys need to be done more frequently to be 
really knowledgeable of site usage. The reviewer cautions against 
excluding Unit TX-17 due to lack of plover sightings there since 1997, 
and recommends we include all sites that have been occupied over the 
decades, so that we do not exclude a site because of potentially 
inadequate surveys.
    Our Response: We deleted TX-17 as a critical habitat unit, because 
it has been reduced in size from 14 ac (6 ha) to less than 3 ac (1 ha) 
since the original designation. The best available science does not 
support the conclusion that this unit is still used by plovers, due to 
its small size and the lack of plovers documented there since 1997.
    (7) Comment: What criteria explicitly define current occupancy?
    Our Response: We define current occupancy as one or more wintering 
plovers being documented to be present in a unit two or more years from 
1997 to 2007. We relied on international piping plover wintering survey 
data, peer-reviewed articles with survey data, Masters thesis results, 
Christmas Bird Count data, survey data obtained from Federal project 
reports, and data from local biologists. If there was a question as to 
whether a piping plover was reported from an area two or more times 
between 1997 and 2007, Ecological Services field office biologists made 
a site visit during the wintering season at the appropriate tidal range 
to confirm presence.
    Further, all revised critical habitat units in Texas are within 
areas that we have determined were occupied at the time of listing, and 
that contain the PCEs in the appropriate spatial arrangement needed to 
support life history functions essential for the conservation of the 
species where it winters. All units which we designate as critical 
habitat have occurrence data that indicate a consistent use. That is, 
occupancy has been documented over two or more wintering seasons, which 
is the same criterion used in the original 2001 designation.

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 Texas GLO regarding the proposal to revise 
critical habitat designation for the wintering piping plover are 
addressed below.
    (1) Comment: The GLO questioned whether we provided sufficient 
justification for designating the additional areas of vacated critical 
habitat (in addition to the areas that were not vacated), to show that 
habitat is essential to the conservation of the piping plover.

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    Our Response: We believe the proposed rule justifies designating 
the vacated critical habitat areas, because they contain features 
essential to the conservation of the plovers. These areas are used by 
wintering plovers that are endangered on their breeding grounds in the 
Great Lakes region and are, thus, in danger of extinction. These 
endangered individuals spend up to 10 months of the year on the 
wintering grounds, thus emphasizing the importance of sufficient and 
suitable wintering habitat (Drake et al. 2001, p. 260). Because piping 
plovers spend most of the annual cycle on nonbreeding areas, they would 
be negatively affected by loss of those sites, emphasizing the 
importance of conserving nonbreeding areas for this species. While on 
their wintering grounds in Texas, plovers are dependent on a mosaic of 
habitat patches, and move among these patches (Drake et al. 2001, pp. 
262-264). The areas we are designating were occupied by the species at 
least twice in the last 10 years, and they contain the primary 
constituent elements for wintering plovers as required by our 
regulations at 50 CFR 424.12. Thus, we have determined that these areas 
have features which are essential to the conservation of the species.
    (2) Comment: The GLO believes oil and gas exploration, including 
seismic survey, and production would be limited due to restrictions 
imposed by the Service due to critical habitat. They cited an example 
of a 2006 letter where the Service recommended that seismic crews stay 
out of critical habitat and a buffer of 1,000 feet around it.
    Our Response: The Service has not made such recommendations to stay 
out of critical habitat when performing seismic work since 2006. On 
August 27, 2008, the Corpus Christi Ecological Services Office issued a 
memorandum that provides current guidance for conducting section 7 
consultations for the wintering piping plover population in Texas. The 
guidance recommends ways to avoid or minimize adverse effects to the 
birds and their habitat, but it does not recommend avoidance of 
critical habitat areas. We anticipate that activities (including oil 
and gas exploration) could occur in critical habitat areas without 
conflicting with endangered species prohibitions. The Service's section 
7 handbook states: ``In evaluating project effects on critical habitat, 
the Service must be satisfied that the constituent elements of the 
critical habitat likely will not be altered or destroyed by proposed 
activities to the extent that the survival and recovery of affected 
species would be appreciably reduced. Modification or destruction of 
designated critical habitat that does not reach this threshold is not 
prohibited by section 7.'' The constituent elements for wintering 
piping plover critical habitat are listed in the Primary Constituent 
Elements (PCEs) section under Critical Habitat below.
    (3) Comment: The GLO questioned what authority the Service might 
have to control future impacts in critical habitats in areas not 
covered by Federal permits/section 7.
    Our Response: To the extent that a particular activity affecting 
designated critical habitat does not involve a federal action, the 
Service has no direct regulatory authority with respect to such 
activities. The Service, is however, responsible for enforcing the 
prohibitions on unauthorized taking of a listed species under section 9 
of the Act. Take is defined in the Act as ``to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect [a listed species], 
or attempt to engage in any such conduct.'' Where there is no federal 
action to which section 7 would apply, the Service can authorize take 
under section 10 of the Act. Section 10 provides authority to permit 
the take of listed species by non-Federal entities such as private 
landowners, cities, or counties. This is done through a permitting 
process where project effects must be mitigated, including effects to 
habitat.
    (4) Comment: The GLO commented that the Service did not list the 
physical and biological features determined essential to the 
conservation of the piping plover.
    Our Response: In our proposed rule we referenced the text of the 
July 10, 2001, rule (66 FR 36038), which specifies the physical and 
biological features essential to the conservation of the species. We 
consider these physical and biological features essential to the 
conservation of the species where it winters to be the primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement for the conservation of the species, and which may 
require special management considerations or protection. The PCEs are 
listed below in the section Primary Constituent Elements. In this rule, 
we are designating as critical habitat areas which contain one or more 
of these eight features for this revised designation. We did not 
designate any areas in this rule containing salterns, which are bare 
sand flats in the center of mangrove ecosystems, because they do not 
occur in Texas, although they occur in other States where the plover 
winters.
    (5) Comment: The GLO inquired as to what information the Service 
has that elevates normal recreational use to being a threat in 2008 
when it was not considered a threat in 2001.
    Our Response: We have observed more development on the South Texas 
coast and increased beach usage by pedestrians and motorists over the 
intervening 7 years. Increased beach use has produced conditions, such 
as increased numbers of joggers, cyclists, and unleashed dogs near the 
water's edge, that lead to additional disturbance to foraging and 
roosting piping plovers.
    (6) Comment: The GLO observed that the Texas Open Beaches Act 
controls access to the beaches, requiring local governments to address 
access in Dune Protection and Beach Access Plans. There are concerns 
that in areas where there is critical habitat for the plover, the 
Service could impose beach driving closures or driving limitations 
during the plover wintering season, which would yield an economic loss 
for local governments.
    Our Response: The Service has not recommended the closure of 
beaches in Texas due to the presence of wintering plovers, whether the 
beaches are in critical habitat areas or not. We may make 
recommendations to minimize driving in cases where driving has the 
potential to destroy or adversely modify critical habitat. For 
instance, when some oil and gas activities are planned that require the 
use of heavy trucks, we have recommended that the trucks form a convoy 
to limit tire rutting on beaches and to smooth over extensive ruts. We 
have not limited recreational driving in wintering plover critical 
habitat areas in the past, and we do not anticipate doing so in the 
future.
    (7) Comment: The GLO asked how beach nourishment and cleaning might 
be detrimental to critical habitat in the long term.
    Our Response: Critical habitat can be adversely modified by 
movement of sand that changes beach elevation and causes vegetation to 
encroach. Critical habitat could also be affected for one or more 
seasons by beach-cleaning vehicles making ruts, or beach nourishment 
activities that bury the shoreline benthic zone under extra sand so 
plover prey items are not as accessible. Cleaning activities that 
remove sargassum and natural debris such as driftwood also remove part 
of the prey base and objects behind which plovers take shelter when 
resting.
    (8) Comment: The GLO suggested that, if the Service does designate 
the proposed critical habitat, it would be wise to develop a general 
permit type of approach to potential piping plover

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consultations. It would help to develop guidelines to allow legal 
activities to occur consistently and efficiently.
    Our Response: We agree, and we will pursue developing a list of 
best management practices for the critical habitat and programmatic 
consultations for Clean Water Act permits often required for work in 
piping plover habitat.
    (9) Comment: The GLO expressed concern that minimizing beach 
driving, if it results in denied access, would conflict with the Texas 
Open Beaches Act (OBA). Also specifying the size and location of 
driving lanes could conflict with the OBA.
    Our Response: As we explain in our response to GLO comment 2, our 
August 27, 2008, guidance does not recommend avoidance of critical 
habitat areas. In critical habitat areas, in instances where there is a 
federally permitted or funded activity that would involve creating 
driving lanes, we may suggest reducing the size of driving lanes to 
minimize effects to the plover, and would recommend that they not be in 
the intertidal zone where piping plovers feed.
    (10) Comment: The GLO commented that there were not enough details 
to determine if the proposed restrictions would increase the cost of 
local government maintenance or conflict with the OBA. Also, local 
governments' costs for training staff on plover protection and 
preparation of annual reports are not eligible for reimbursement under 
the State Beach Cleaning and Maintenance Assistance Program.
    Our Response: As noted above, there are no restrictions due to 
critical habitat alone, but rather recommendations in cases where 
Federal funding or permitting exists. Municipalities have no 
requirements to train staff, monitor piping plovers, or prepare annual 
monitoring reports based on the designation of piping plover critical 
habitat.
    (11) Comment: The GLO commented that there may be areas of conflict 
between the OBA or private use and designated critical habitat such as: 
Preventing fill in sand flats, preventing planting of vegetation in 
sand flats, and placing fences to exclude beach access.
    Our Response: Designation of critical habitat does not prohibit or 
require any of these activities. If activities in critical habitat 
areas are federally funded or permitted, such as some filling or 
planting activities, they would require consultation under section 7, 
in order for the federal funding or permit to be issued. Our August 27, 
2008, guidance on section 7 consultations on critical habitat 
recommends not filling in sandflats, but designation of critical 
habitat will likely affect such filling only if a federal action agency 
determines that the filling would result in a federal action destroying 
or adversely modifying critical habitat.
    Fencing is addressed in our economic analysis only with respect to 
minimizing the effects of residential development adjacent to 
designated critical habitat. Fencing would not prevent access to the 
beach, but only exclude access to it from the area under development.
    (12) Comment: The GLO commented that further details are needed on 
how the Service plans to define ``harassment'' under the Endangered 
Species Act, as it applies to recreational beach activities like 
vehicle driving, pedestrian usage, and pet restrictions.
    Our Response: The Act prohibits ``harassment'' of listed species. 
The Service's regulations define ``harassment'' as an intentional or 
negligent act or omission which creates the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns which include, but are not limited to, 
breeding, feeding, or sheltering. For example, harassment in the form 
of disturbance from the increased use of vehicles, pedestrians, or pets 
may include noise and increased activity that may flush a bird from the 
habitat it uses to feed. The bird's inability to feed may lead to poor 
body condition. Additionally, flushing a bird from an area where it is 
sheltering may cause that bird to become more susceptible to predation. 
If any of the activities of concern (vehicular use, pedestrian use, or 
the presence of dogs on the beach) cause significant disruptions of 
normal behavior patterns, then such actions could meet the definition 
of harassment.
    (13) Comment: The GLO noted that some possible areas for exclusion 
may be the Willacy County portion of Unit TX-3A, the Kleberg County 
portion of TX-3D, Unit TX-16, TX-22, TX-32, TX-10(A), and also the 
critical habitat in the Mollie Beattie Coastal Habitat Community in 
Unit TX-06.
    Our Response: We have reviewed the areas identified above in the 
GLO's comment. We considered excluding areas based on specific 
protection plans being in place for the piping plover and its wintering 
habitat. We appreciate that the Coastal Barrier Resources Act (CBRA) 
and the OBA offer protection to the Willacy County portion of TX-3A by 
discouraging future development. The GLO-managed land in the Kleberg 
County portion of TX-3D is also CBRA protected and GLO protected and 
managed, with deed restrictions to prevent additional development. 
Also, we understand that the nonprofit organization, The Nature 
Conservancy, is to buy this property from GLO and transfer it to the 
Padre Island National Seashore. Shamrock Island, Unit TX-10(A), is 
owned by The Nature Conservancy. Units TX-16, TX-22, and TX-32 also all 
have CBRA protection and limited access because of their remote 
locations without roads or connections to the mainland. These 
authorities may provide some habitat protection, but none of these 
plans specifically target piping plover protection for those areas. The 
Mollie Beattie Coastal Habitat Community is in Unit TX-06 and was not 
vacated and, therefore, was not reconsidered for designation in this 
rule. We gratefully acknowledge the efforts of the GLO, Texas Parks and 
Wildlife Department, Coastal Bend Bays and Estuary Program, Coastal 
Conservation Association, Texas A&M University--Corpus Christi Center 
for Coastal Studies, and the Saltwater--Fisheries Enhancement 
Association for efforts in conservation of piping plover and other 
coastal resources at the 1100-ac Mollie Beattie preserve.

Public Comments

    In addition to the comments from the Texas General Land Office, we 
received substantive comments from one individual and from two 
organizations, the Center for Biological Diversity and the Gulf Coast 
Bird Observatory. Comments are grouped into general issues relating to 
the proposed critical habitat designation for the wintering piping 
plover and are addressed below.
    (1) Comment: The Center for Biological Diversity supports 
designation of critical habitat for the piping plover in Texas and 
elsewhere and believes the current proposal should be expanded to 
include additional currently unoccupied habitat so that plovers and 
their habitats can move and adapt to changing climate conditions and 
rising sea levels.
    Our Response: Climate conditions are discussed in the Environmental 
Assessment for the rule. Climate change may cause changes in the 
arrangement of suitable habitat patches. We also believe the Texas 
coast may experience high rates of sea-level rise as well as increases 
in the frequency and intensity of storms. However, the information 
currently available on the effects of climate change does not make 
sufficiently accurate estimates of the location and magnitude of the 
effects, so we are unable to determine what additional areas would be 
needed, nor

[[Page 23481]]

where they would be located. We believe the critical habitat designated 
includes the areas that meet the definition of occupied critical 
habitat, and based on the best scientific and commercial data 
available, we have determined that the addition of unoccupied areas in 
Texas is not essential for the conservation of the species. This is 
discussed further in the Criteria Used To Identify Critical Habitat 
section below. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas we 
may later (with the benefit of additional information) determine are 
necessary for the recovery of the species. For this reason, a critical 
habitat designation does not signal that habitat outside the designated 
area is unimportant or may not promote the recovery of the species.
    (2) Comment: The Service does not account for the destructive 
nature of off-road vehicle (ORV) use in plover habitat, as these can 
significantly reduce the overall abundance and diversity of benthic 
food items for the birds. The commenter cites a study of the reduction 
in abundance and diversity of benthic species conducted in Australia, 
where the beach received an average of 727 vehicles per day.
    Our Response: We do not have evidence that South Texas beaches are 
receiving these levels of use, and data are not available regarding 
effects on benthic species for Texas beaches used by piping plovers. 
Our decision to designate critical habitat must be based on the best 
available data and the conclusions we can draw from it. We are aware of 
possible effects, and we review projects or situations on a case-by-
case basis for data and indications of diminished or damaged food 
sources that might harm wintering plovers.
    (3) Comment: The proposal to exclude National Wildlife Refuge lands 
is inappropriate.
    Our Response: We considered whether to propose to exclude National 
Wildlife Refuge lands under section 4(b)(2) of the Act and have 
determined that we will not exclude them. The Refuge lands are included 
in the critical habitat designation.
    (4) Comment: The Service needs to explain the difference in the 
size of the units designated in 2009 versus the same units described 
back in 2001.
    Our Response: The units changed in size with removal of areas that 
do not contain PCE's, based on National Wetlands Inventory data, and 
they also changed in size due to shifts in coastal habitat patches 
since the 2001 mapping. This is explained in greater detail below in 
the Criteria Used To Identify Critical Habitat section.
    (5) Comment: The Gulf Coast Bird Observatory is completing a 1-year 
study of the piping plover on the upper Texas coast that includes 
critical habitat Units TX-27, TX-28, TX-31, TX-32, and TX-33. The Gulf 
Coast Bird Observatory submitted piping plover sighting data and 
believes resizing some of these critical habitat units may affect the 
birds. Additionally, they are concerned that the Service may delete TX-
29, TX-30, TX-34, TX-35, TX-36, TX-37 based on maps from https://criticalhabitat.fws.gov.
    Our Response: We appreciate the plover sighting survey data and 
information from on-site field investigations showing bird usage and 
human threats. Units TX-29, TX-30, TX-34, TX-35, TX-36, and TX-37 
remain as critical habitat and were not vacated by the settlement 
agreement, so they are not a subject of this revised designation. We 
reviewed the map viewer version of the map for the plover at https://criticalhabitat.fws.gov, and found the currently designated units in 
Texas to be correct as they were mapped for the original 2001 
designation. The 19 units that were vacated by the court do not show. 
Following this revised designation, the map at https://criticalhabitat.fws.gov will be updated to reflect this designation.

Comments Related to the Draft Economic Analysis (DEA)

    (1) Comment: One commenter states that the DEA must analyze and 
calculate all of the benefits of designating critical habitat. Since 
critical habitat contributes to the survival and recovery of the 
species, the economic analysis needs to consider the benefits of these 
contributions.
    Our Response: The Service considers the designation of critical 
habitat to be of high benefit to the species by affording opportunities 
for conservation. In general, we may only exclude areas that meet the 
definition of critical habitat when the benefits of exclusion outweigh 
the benefits of designation, and the effect of the exclusion would not 
result in extinction of the species. The Secretary must consider 
economic and other relevant impacts as part of the final decision-
making process under section 4(b)(2) of the Act. The Act also states 
that its purpose is to conserve threatened and endangered species and 
the ecosystems upon which they depend. The non-economic related 
benefits of designation are appropriately considered in the balancing 
portion of a 4(b)(2) exclusion analysis.
    (2) Comment: One commenter states that previous economic analyses 
have overestimated the costs of the designation of critical habitat by 
ascribing coextensive costs to critical habitat. The commenter goes on 
to state that the Service must separate out all costs in the economic 
analysis that are attributable to listing alone, required by biological 
opinions, habitat conservation plans, state laws, or other regulatory 
measures, and that the costs associated with critical habitat must be 
considered alone.
    Our Response: This economic analysis considers the costs associated 
with critical habitat separate from those likely to occur under the 
baseline, to the extent possible. Specifically, the economic analysis 
employs ``without critical habitat'' and ``with critical habitat'' 
scenarios. The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already accorded the 
piping plover; for example, under the Federal listing and other 
Federal, State, and local regulations. The ``with critical habitat'' 
scenario includes the incremental impacts associated specifically with 
the designation of critical habitat for the species (since all of the 
potential economic impacts associated with the designation of critical 
habitat are considered incremental). The incremental conservation 
efforts and associated impacts are those not expected to occur absent 
the designation of critical habitat for the piping plover. These 
impacts are summarized in the Executive Summary under ``Summary of 
Incremental Impacts and Exhibit ES-4.''
    (3) Comment: One public commenter states that higher exploration 
and development costs associated with oil and gas operations in coastal 
and marine environments, combined with time delays, regulatory 
uncertainty, and stigma associated with critical habitat could result 
in industry avoidance of critical habitat areas. Thus, critical habitat 
represents a functional condemnation of the State's mineral estate.
    Our Response: Section 3.6.3 of the FEA acknowledges that increased 
impact minimization costs for oil and gas activities could lead to some 
voluntary avoidance of critical habitat areas by industry due to 
perceived limitations. However, these are not real limitations except 
in the very unlikely event that there is a federal action that would 
adversely modify or destroy the critical habitat. So the likelihood of 
this potential avoidance behavior is not known. The economic impacts of 
avoiding critical habitat areas could vary from no impacts, if a known

[[Page 23482]]

resource can be tapped without directional drilling from outside the 
critical habitat, to appreciable impacts (i.e., $125,000 to $520,000 
per year), if the resource can only be accessed from within critical 
habitat areas, or if data that would have been gathered during a 
seismic survey fails to locate a resource that otherwise would have 
been found. The FEA assumes that restrictions on proposed drilling 
activities within critical habitat areas will result in use of 
suboptimal drilling locations that require directional drilling to 
access the resource. The FEA assumes that seismic exploration 
activities would be modified to avoid impacts related to driving in 
habitat areas.
    (4) Comment: One commenter states that the assumption made in the 
DEA that the geographic distribution of seismic survey and drilling 
effort in the past is indicative of future activities is invalid based 
upon current trends. First, there is a trend towards unconventional 
reservoirs, such as shales, which are currently the focus of much 
activity within the oil and gas sector in the mid-continental U.S. 
Second, mid-depth, deep-depth, and ultra-deep depth development have 
not been fully explored. With these deeper depths to be evaluated it is 
unrealistic to believe that there will be a ``constant rate of well 
drilling over the next 20 years.'' Third, seismic imaging of the 
transition zone (the shallow water area near shorelines) only began 
recently--prior to this development the transition zone was under 
explored. Just because an area was surveyed several times between 1989 
and 2007 does not mean that with continued improvements in seismic 
imaging that it will not be resurveyed in the next 20 years.
    Our Response: Section 3 of the FEA highlights that ``the primary 
source of uncertainty in this analysis is the potential number and 
location of future seismic survey efforts and drilling sites.'' As the 
FEA and the commenter point out, and as confirmed by two academic 
experts in this field, specific projections of the future location and 
number of future seismic surveys and drilling sites are not available 
for critical habitat areas. As such, past data for this area, covering 
a 19-year span, was used to project future rates of drilling activity 
over the next 20 years. Although the drilling data suggests some 
increase in activity in the past three years of the study period, it is 
not clear that these years alone represent the likely future rate of 
drilling, particularly when taking into account the changing economic 
climate. As such, the analysis draws on data from a longer time period 
to capture what may be a more representative sample of data. Similarly, 
assumptions about the rate of seismic surveys draw from the past ten 
years of data (1998-2007). In both cases, however, a high level of 
uncertainty remains regarding the level of future surveying and 
drilling activity in critical habitat areas. In response to these 
public comments, Section 3.2 of the analysis has been revised to 
specifically acknowledge that contributing factors to the uncertainty 
surrounding the potential number and location of future seismic survey 
efforts and drilling sites within critical habitat areas include 
changes in the rate of oil and gas development activities, including 
exploration of new areas and depths.
    (5) Comment: One commenter states that restrictions on and 
modifications of the shot point and receiver arrays for seismic surveys 
on or near the critical habitat designation will decrease fold and 
negatively impact the data acquired, even to the point that it is 
useless for evaluation of the subsurface. Further, gaps in an array 
caused by the exclusion of areas within the array reduce data quality 
not only within the excluded area but extend on each side for about the 
width of the excluded area, depending upon the depth being imaged. 
Therefore, the impacts to oil and gas exploration will affect areas 
many times larger than the critical habitat designation alone, and 
thereby will have an affect many times greater annually than the dollar 
amount estimated.
    Our Response: As stated in section 3.3.4 of the FEA, the Service 
states that, in the future, it is more likely to recommend a series of 
project modifications for work within critical habitat than it is to 
recommend avoidance of the habitat areas altogether. The project 
modifications identified as likely to be recommended by the Service are 
summarized in Exhibit 3-7 of the FEA, and do not include avoiding 
surveying critical habitat areas. Therefore, the current estimates of 
likely impacts to surveying activities remain unchanged from the DEA.
    (6) Comment: One commenter states that the DEA attempts to 
marginalize the Gulf Coast by stating that the ``largest concentration 
of oil reserves in Texas are found in West Texas, while the largest 
deposits of natural gas are found in the northeastern part of the 
State. Neither of these concentrations lies near proposed critical 
habitat for the piping plovers''.
    Our Response: Section 3.3.2 of the FEA intends to provide context 
for understanding the importance of the Gulf Coast oil and gas 
development by providing information on production in other parts of 
Texas. The section FEA also states: ``The Gulf Coast Region, where 
critical habitat for the plover is located, produces a significant 
amount of oil and gas, with 15,484 active oil and 20,218 active gas 
wells operating in the nine counties that contain critical habitat. 
Gulf Coast wells comprise 22 percent and 10 percent of Texas wells, 
respectively''.
    (7) Comment: One commenter states that the Texas General Land 
Office has leased significant amounts of acreage in the past several 
years that have not experienced extensive oil and gas activity in the 
past 18 years. Exploration and development of these lands will likely 
require access to areas proposed for critical habitat designation. The 
commenter states that, in many cases, potential environmental impacts 
are lessened by locating drilling and production equipment onshore for 
wells that are directionally drilled to a location underlying state 
waters, eliminating the need for access channels.
    Our Response: The extent to which future drilling in critical 
habitat areas may occur in order to access resources located in 
offshore state waters is not known. As stated in earlier, specific 
projections of the future location and number of future drilling sites 
are not available for critical habitat areas. As such, the FEA uses 
past drilling data for this area to project future rates of well 
drilling in critical habitat areas. To the extent that directionally 
drilling from critical habitat areas to offsite areas did not occur in 
the past, but will occur in the future, this activity would be 
underrepresented in our data and projections, and could result in an 
underestimate of the number of expected drilling sites in critical 
habitat. A caveat has been added to the analysis to this effect.
    (8) Comment: One commenter states that insufficient details were 
provided in the DEA to determine if the new proposed restrictions to 
beach maintenance activities (specifically, minimizing beach driving 
from August to March and specifications for the size and placement of 
driving lanes) will increase the cost of local government maintenance 
or conflict with the Texas Open Beaches Act.
    Our Response: The FEA does not contemplate modification of beach 
maintenance projects to minimize beach driving from August to March, as 
there is no indication that the Service would recommend this 
modification for these projects. While specifications for the size and 
placement of driving lanes have been recommended as part of an

[[Page 23483]]

ongoing consultation with the City of Corpus Christi on beach 
maintenance activities, the City has not identified costs associated 
with meeting this recommendation to date. As such, no additional costs 
associated with modifying the size and placement of driving lanes are 
quantified in the analysis. There has been no indication that these 
restrictions would lead to a denial of beach access that would conflict 
with the Texas Open Beaches Act.
    (9) Comment: One commenter states that some threats to plover posed 
by development activities may represent conflicts with the Open Beaches 
Act or private use. These situations include: (1) preventing fill in 
sandflats that are not intertidal; the Beach/Dune regulations 
discourage, but do not prohibit fill in sand flats for the purpose of 
land development; (2) Preventing planting of vegetation in sandflats 
that are not intertidal; landowners who build in sandflats often 
construct new vegetated sand dunes to protect against storm surge; (3) 
Exclusion fencing that restricts beach access would potentially violate 
the Texas Open Beaches Act.
    Our Response: To date, the Service has recommended avoidance of 
dredge/fill activities during peak plover use, avoidance of planting 
vegetation in flats habitat, and use of exclusion fencing as project 
modifications for several planned development projects. However, none 
of these projects have been constructed, for various reasons unrelated 
to the plover. Chapter 4 of the economic analysis acknowledges that in 
the future such requirements could conflict with some planned private 
use, which would need to be modified to fit the plover needs. Costs 
associated with implementing the Service's recommendations are 
summarized in Section 4.1.1.
    (10) Comment: The GLO expressed the concern that the economic 
impacts to oil and gas industries may be high, and that we should 
consider excluding areas on this basis.
    Our Response: Section 4(b)(2) of the Act states that the Secretary 
may exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the 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 legislative history is clear that the 
Secretary has broad discretion regarding which factor(s) to use and how 
much weight to give to any factor. Wintering plovers in Texas include 
plovers that are federally endangered on their breeding grounds in the 
Great Lakes region, as well as plovers that are federally threatened on 
their breeding grounds in the northern Great Plains and along the 
Atlantic coast. Those in the Great Lakes region number only about 60 
breeding pairs and, by being listed as endangered, are considered by 
the Service to be in danger of extinction. These endangered individuals 
spend up to 10 months of the year on the wintering grounds, thus 
emphasizing the importance of sufficient and suitable wintering 
habitat. Although they are listed as federally threatened on their 
wintering grounds, impacts to their wintering habitat can affect 
whether they return to the Great Lakes region to breed or their 
breeding success while there. Thus, destruction or adverse modification 
of wintering habitat essential to plovers that breed in the Great Lakes 
region may increase their risk of extinction, emphasizing the 
importance of conserving nonbreeding habitat and essential features for 
this species through designation of critical habitat. By designating 
critical habitat for wintering plovers in Texas, the areas designated 
will be provided some regulatory protections so the plovers are not 
forced to other areas that are not designated and may be suboptimal. In 
designating critical habitat, the Service must also consider the 
recovery needs of the species, such that the essential features and 
habitat that are identified, if managed, could provide for the 
conservation of the species.
    Weighing the potential economic effects and other potential 
regulatory effects of designating critical habitat for the piping 
plover in Texas, against the unique needs of wintering grounds in Texas 
for those plovers whose breeding grounds are in the Great Lakes, we 
have determined not to exercise our discretion to exclude areas from 
the final designation.

Summary of Changes From Proposed Rule

    In preparing the final critical habitat revised designation for the 
wintering population of the piping plover in Texas, we reviewed and 
considered public and peer reviewer comments on the May 8, 2008, 
proposed designation of critical habitat (73 FR 29294) and the December 
9, 2008, draft economic analysis and environmental assessment (73 FR 
74675). Our final designation includes 18 of the 19 vacated units, as 
put forward in the May 8, 2008, proposed revised designation of 
critical habitat for the wintering population of the piping plover in 
Texas (Units 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), 
totaling approximately 138,881 ac (56,206 ha). We are not designating 
critical habitat for court-vacated Unit TX-17, because it did not meet 
our occupancy criterion (plovers were not documented there over two 
wintering seasons between 1997 and 2007).
    Also, in 50 CFR Sec.  17.95(b), ``Piping Plover (Charadrius 
melodus) Wintering Habitat,'' we are revising the text at paragraph 1 
differently than proposed. In the May 8, 2008 proposed designation, we 
referred to mud flats as ``(between annual low tide and annual high 
tide)'', whereas in this final rule we describe the mud flats as 
``(between mean lower low water line and annual high tide)'', as 
explained earlier in this preamble.
    Moreover, we are not revising the text of the current 50 CFR Sec.  
17.95(b), ``Piping Plover (Charadrius melodus) Wintering Habitat,'' 
paragraph 2 as proposed (which describes areas not included in the 
critical habitat). Instead, we are maintaining the current CFR text for 
that paragraph, which was set forth in the final rule of October 21, 
2008 (73 FR 62839), pertaining to wintering habitat for piping plover 
in North Carolina. We are doing this because we believe that the text 
established in the North Carolina final rule is more representative of 
the critical habitat areas that are excluded for all the States in the 
wintering habitat for piping plover.

Critical Habitat

Background

    Critical Habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) essential to the conservation of the species, and
    (b) that may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means 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

[[Page 23484]]

under the Act are no longer necessary. Such methods and procedures may 
include, but are not limited to, all activities associated with 
scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, regulated taking.
    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(a)(2) 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 non-Federal landowners. Where a 
landowner seeks or requests Federal agency funding or authorization for 
an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) of the Act would apply. 
However, 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 alternatives to avoid 
destruction or adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain the physical and biological features that are essential to 
the conservation of the species, and be included only if those features 
may require special management consideration or protection. Critical 
habitat designations identify, to the extent known and using the best 
scientific data available, habitat areas that provide essential life 
cycle needs of the species (areas on which are found those physical and 
biological features laid out in the appropriate quantity and spatial 
arrangement for the conservation of the species). Under the Act and 
regulations at 50 CFR 424.12, we can designate critical habitat in 
areas outside the geographical area occupied by the species at the time 
it is listed only when we determine that those areas are essential for 
the conservation of the species and that designation limited to those 
areas occupied at the time of listing would be inadequate to ensure the 
conservation 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 gene