22938 Federal Register /Vol. 66, No. 88/Monday, May 7 ... · Federal Register/Vol. 66, No. 88/Monday, May 7, 2001/Rules and Regulations22939 orange, and the short, stout bill is orange

22938 Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

State and location CommunityNo.

Effective date authorization/cancellation ofsale of flood insurance in community

Current effectivemap date

Date certainFederal assist-ance no longer

available in spe-cial flood hazard

areas

Region IIIPennsylvania:

Bern, township of, Berks County .......... 421050 March 25, 1974, Emerg., November 19,1980, Reg. May 21, 2001, Susp.

......do ............... Do.

Heidelberg, township of, Berks County 421069 March 7, 1977, Emerg., May 3, 1990, Reg.May 21, 2001, Susp.

......do ............... Do.

Leesport, borough of, Berks County .... 420138 December 26, 1973, Emerg., May 16,1977, Reg. May 21, 2001, Susp.

......do ............... Do.

Marion, township of, Berks County ...... 421079 October 28, 1975, Emerg., January 2,1981, Reg. May 21, 2001, Susp.

......do ............... Do.

Muhlenberg, township of, Berks Coun-ty.

420144 March 9, 1973, Emerg., September 1,1977, Reg. May 21, 2001, Susp.

......do ............... Do.

Ontelaunee, township of, Berks County 420966 September 5, 1973, Emerg., June 1, 1977,Reg. May 21, 2001, Susp.

......do ............... Do.

Spring, township of, Berks County ....... 421108 June 27, 1974, Emerg., April 18, 1983,Reg. May 21, 2001, Susp.

......do ............... Do.

Tulpehocken, township of, BerksCounty.

421115 April 19, 1978, Emerg., August 4, 1988,Reg. May 21, 2001, Susp.

......do ............... Do.

Wyomissing, borough of, Berks County 421375 August 28, 1974, Emerg., April 18, 1983,Reg. May 21, 2001, Susp.

Region VIllinois: Winnebago, unincorporated areas .. 170720 February 16, 1973, Emerg., November 19,

1980, Reg. May 21, 2001, Susp.Region VII

Kansas: Augusta, city of, Butler County ...... 200038 June 25, 1975, Emerg., August 15, 1980,Reg. May 21, 2001, Susp.

Region VIIIColorado:

Durango, city of, La Plata County ........ 080099 April 30, 1974, Emerg., January 17, 1979,Reg. May 21, 2001, Susp.

......do ............... Do.

La Plata County, unincorporated areas 080097 December 12, 1974, Emerg., December15, 1981, Reg. May 21, 2001, Susp.

......do ............... Do.

Code for reading third column: Emerg.—Emergency; Reg.—Regular; Susp—Suspension.

Dated: April 25, 2001.Margaret E. Lawless,Acting Executive Associate Director forMitigation.[FR Doc. 01–11363 Filed 5–4–01; 8:45 am]BILLING CODE 6718–05–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG14

Endangered and Threatened Wildlifeand Plants; Final Determination ofCritical Habitat for the Great LakesBreeding Population of the PipingPlover

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: We, the U.S. Fish andWildlife Service (Service), designatecritical habitat pursuant to theEndangered Species Act (Act) of 1973,

as amended for the Great Lakes breedingpopulation of the piping plover. TheGreat Lakes breeding population of thepiping plover is listed as an endangeredspecies under the Act. A total ofapproximately 325 km (201 mi) of GreatLakes shoreline (extending 500 m (1640ft) inland) in 26 counties in Minnesota,Wisconsin, Michigan, Illinois, Indiana,Ohio, Pennsylvania, and New York, isdesignated as critical habitat for theGreat Lakes population of the pipingplover. The total length of designatedshoreline is divided among 35 separatecritical habitat units.

Section 7 of the Act requires Federalagencies to ensure that actions theyauthorize, fund, or carry out are notlikely to destroy or adversely modifycritical habitat. As required by section 4of the Act, we considered economic andother relevant impacts prior to makinga final decision on what areas todesignate as critical habitat.EFFECTIVE DATE: This final rule iseffective June 6, 2001.ADDRESSES: The completeadministrative record for this rule,including comments and materials

received, as well as supportingdocumentation used in the preparationof this final rule, will be available forpublic inspection, by appointment,during normal business hours at theU.S. Fish and Wildlife Service, BishopHenry Whipple Federal Building, 1Federal Drive, Fort Snelling, MN 55111.FOR FURTHER INFORMATION CONTACT:Laura J. Ragan at the above address(telephone 612/713–5157; facsimile612/713–5292). TTY users may contactus through the Federal Relay Service at1–800–877–8339.SUPPLEMENTARY INFORMATION:

Background

The piping plover (Charadriusmelodus), named for its melodic matingcall, is a small, pale-colored NorthAmerican shorebird. It weighs 43–63grams (1.5–2.5 ounces) and is 17–18centimeters (cm) (6–7 inches (in.)) long(Haig 1992). Its light, sand-coloredplumage blends in well with the sandybeach, its primary habitat. Plumage andleg color help distinguish this bird fromother plover species. During thebreeding season, the legs are bright

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22939Federal Register / Vol. 66, No. 88 / Monday, May 7, 2001 / Rules and Regulations

orange, and the short, stout bill isorange with a black tip. There are twosingle dark bands, one around the neckand one across the forehead between theeyes. The female’s neck band is oftenincomplete and is usually thinner thanthe male’s (Haig 1992). In winter, thebill turns black, the legs fade to paleorange, and the black plumage bands onthe head and neck are lost. Chicks havespeckled gray, buff, and brown down,black beaks, pale orange legs, and awhite collar around the neck. Juvenilesresemble wintering adults and obtaintheir adult plumage the spring after theyfledge (USFWS 1994).

Dominant plants within Great Lakespiping plover habitat include marramgrass (Ammophila brevigulata), beachwormwood (Artemesia campestris),silverweed (Potentilla anserina), LakeHuron tansy (Tanacetum huronense),pitcher’s thistle (Cirsium pitcheri),beach pea (Lathyrus maritimus var.glaber), sea rocket (Cakile edentula),sedges (Carex spp.), goldenrods (Solidagospp.), sand cherry (Prunus pumila),bearberry (Arctostaphylus uva-ursi),creeping juniper (Juniper horizontalis),cottonwood (Populus deltoides), andwillow (Salix spp.).

The breeding range of the pipingplover extends throughout the northernGreat Plains, the Great Lakes, and theAtlantic Coast in the United States andCanada. Based on this distribution,three breeding populations of pipingplovers have been described: theNorthern Great Plains population, theGreat Lakes population, and the AtlanticCoast population.

The northern Great Plains breedingrange extends from southern Alberta,northern Saskatchewan, and southernManitoba, south to eastern Montana, theDakotas, southeastern Colorado, Iowa,Minnesota, and Nebraska, and east toLake of the Woods in north-centralMinnesota. The majority of the UnitedStates pairs in this population are in theDakotas, Nebraska, and Montana(USFWS 1994). Occasionally, GreatPlains birds nest in Oklahoma andKansas. On the Atlantic coast, pipingplovers nest from Newfoundland,southeastern Quebec, and NewBrunswick to North Carolina. Sixty-eight percent of all nesting pairs breedin Massachusetts, New York, NewJersey, and Virginia (USFWS 1999). Inthe Great Lakes watershed, pipingplovers formerly nested throughoutmuch of the north-central United Statesand south-central Canada on beaches inIllinois, Indiana, Michigan, Minnesota,Ohio, Pennsylvania, New York,Wisconsin, and in Ontario, Canada.Currently they are limited to northern

Michigan and, recently, at one site innorthern Wisconsin.

Piping plovers are migratory birds.They leave the breeding groundsbetween late July and early Septemberand head for their wintering grounds,where they spend more than eightmonths of the year. Although thebreeding ranges of the three pipingplover populations are separate, theirwintering ranges overlap and extendalong the Atlantic and Gulf Coasts fromNorth Carolina to Mexico and into theWest Indies and Bahamas. Resightingsof color-banded birds from the GreatLakes breeding population haveoccurred along the coastlines of Northand South Carolina, Georgia, Florida,Louisiana, and Texas.

Pre-settlement populations of pipingplovers in the Great Lakes are estimatedat 492–682 breeding pairs (Russell1983), although these estimates may behigh (F. Cuthbert, professor, Universityof Minnesota, Minneapolis, pers.comm., 2000). In recent decades, pipingplover populations have declineddrastically, especially in the GreatLakes, coinciding with industrialdevelopment, urbanization, andincreased recreational pressures. In1973, the piping plover was placed onthe National Audubon Society’s BlueList of threatened species. By that time,piping plovers had been extirpated frombeaches in Illinois, Indiana, Ohio, NewYork, Pennsylvania, and Ontario, andonly a few birds were continuing to nestin Wisconsin (Russell, 1983). By 1977,the Great Lakes breeding population haddecreased to 31 nesting pairs (Lambertand Ratcliff 1981) and by the time thespecies was listed under the EndangeredSpecies Act in 1985, the Great Lakesbreeding population had dwindled toonly 17 breeding pairs, and the breedingareas had been reduced from sites ineight States to only portions of northernMichigan.

Since the species was listed, the GreatLakes breeding population has graduallyincreased and expanded its range withinMichigan and into Wisconsin. In 1999,31 pairs of piping plovers nested on theGreat Lakes shoreline of northernMichigan and 1 pair nested in northernWisconsin (Stucker and Cuthbert, 1999).In 2000, 30 pairs were documented, allin northern Michigan (Stucker et al.2000). The slow population increaseover the past 15 years has been aided byintense State, Tribal, Federal, andprivate conservation actions directed atthe protection of the piping plover.Activities such as habitat surveys, beachrestoration, public education, habitatprotection and enhancement, and theprotection of nests from predators anddisturbance through the use of predator

exclosure fencing have all contributedto the improving status of the GreatLakes piping plover.

Great Lakes piping plovers nest onshoreline and island sandy beaches withsparse vegetation and the presence ofsmall stones (greater than 1 cm (0.4 in.))called cobble. Piping plovers spend 3 to4 months a year on the breedinggrounds. Nesting in the Great Lakesregion begins in early to mid-May.Plovers lay 3 to 4 eggs in a smalldepression they scrape in the sandamong the cobblestones and are,therefore, very difficult to see. Bothsexes are involved in incubating theeggs, which hatch in about 28 days.Young plovers can walk almost as soonas they hatch, but remain vulnerable topredation and disturbance for another21–30 days until they are able to fly.

Nesting piping plovers are highlysusceptible to disturbance by peopleand pets on the beach. Humandisturbance disrupts adult birds’ care oftheir nests and young and may inhibitincubation of eggs (USFWS 1994).Furthermore, adults may leave the nestto lure away an intruder, leaving theeggs or chicks vulnerable to predatorsand exposure to weather. Ultimately,disturbance may lead to theabandonment of nests (USFWS 1994).As a result of disturbance and othernatural and human-caused factors suchas high water levels, flooding, erodingbeaches, and beach-front commercial,recreational, and residentialdevelopment, reproduction of GreatLakes piping plovers has been severelyaffected, resulting in perilously lownumbers of nesting plovers (USFWS1994).

This rule applies only to the breedingrange of the Great Lakes population inthe United States.

Previous Federal ActionsOn December 30, 1982, we published

a notice of review in the FederalRegister (47 FR 58454) that identifiedvertebrate animal taxa being consideredfor addition to the List of Threatenedand Endangered Wildlife. We includedthe piping plover in that review list asa Category 2 Candidate species,indicating that we believed the speciesmight warrant listing as threatened orendangered, but that we had insufficientdata to support a proposal to list at thattime. Subsequent review of additionaldata indicated that the piping ploverwarranted listing, and in November,1984, we published a proposed rule inthe Federal Register (49 FR 44712) tolist the piping plover as endangered inthe Great Lakes watershed and asthreatened along the Atlantic Coast, theNorthern Great Plains, and elsewhere in



their range. The proposed listing wasbased on the decline of the species andthe existing threats, including habitatdestruction, disturbance by humans andpets, high levels of predation, andcontaminants.

After a review of the best scientificdata available and all commentsreceived in response to the proposedrule, we published the final rule (50 FR50726) on December 11, 1985, listingthe piping plover as endangered in theGreat Lakes watershed (Illinois, Indiana,Michigan, northeastern Minnesota, NewYork, Ohio, Pennsylvania, Wisconsin,and Ontario, Canada) and as threatenedalong the Atlantic coast (Quebec,Newfoundland, Maritime Provinces,and States from Maine to Florida), andin the Northern Great Plains region(Iowa, northwestern Minnesota,Montana, Nebraska, North Dakota,South Dakota, Alberta, Manitoba, andSaskatchewan). All piping plovers onmigratory routes outside of the GreatLakes watershed or on their winteringgrounds are considered threatened. Wedid not designate critical habitat for thespecies at that time.

After 1986, we focused our efforts onrecovery by forming two recovery teams,the Great Lakes/Northern Great PlainsPiping Plover Recovery Team and theAtlantic Coast Piping Plover RecoveryTeam. In 1988 the Great Lakes andNorthern Great Plains (USFWS 1988b)and Atlantic Coast (USFWS 1988a)Recovery Plans were published. In 1994,the Great Lakes/Northern Great PlainsRecovery Team began to revise theRecovery plan for these two populations(USFWS 1994). The 1994 draft includedupdated information on the species andwas distributed for public comment.Subsequently, we decided that therecovery of these two inlandpopulations would benefit from separaterecovery plans. Individual recoveryplans for the Great Lakes and NorthernGreat Plains populations are presentlyunder development.

The final listing rule for the pipingplover indicated that designation ofcritical habitat was not determinable.Thus, designation was deferred. Nofurther action was subsequently taken todesignate critical habitat for pipingplovers. On December 4, 1996,Defenders of Wildlife (Defenders) filed asuit (Defenders of Wildlife and PipingPlover v. Babbitt, Case No. 96CV02965)against the Department of the Interiorand the Service over the lack ofdesignated critical habitat for the GreatLakes population of the piping plover.Defenders filed a similar suit (Defendersof Wildlife and Piping Plover v. Babbitt,Case No. 97CV000777) for the NorthernGreat Plains piping plover population in

1997. During November and December1999, and January 2000, we begannegotiating a schedule for piping plovercritical habitat decisions withDefenders. On February 7, 2000, beforethe settlement negotiations wereconcluded, the United States DistrictCourt for the District of Columbia issuedan order directing us to publish aproposed critical habitat designation fornesting and wintering areas of the GreatLakes population of the piping ploverby June 30, 2000, and for nesting andwintering areas of the Northern GreatPlains piping plover population by May31, 2001. A subsequent order, afterrequesting the court to reconsider itsoriginal order relating to final criticalhabitat designation, directs us to finalizethe critical habitat designations for theGreat Lakes population by April 30,2001, and for the Northern Great Plainspopulation by March 15, 2002. Forbiological and practical reasons, wechose to propose critical habitat for theGreat Lakes breeding birds and for allwintering birds in two separate rulespublished concurrently.

On July 6, 2000, we published aproposed determination for thedesignation of critical habitat for theGreat Lakes breeding population of thepiping plover (65 FR 41812). A total ofapproximately 305 km (189 mi)(extending 1 km (0.6 mi) inland) wasproposed as critical habitat for thispiping plover population in 27 countiesin Minnesota, Wisconsin, Michigan,Illinois, Indiana, Ohio, Pennsylvania,and New York. The comment periodwas open until September 5, 2000.During this 60-day comment period, weheld seven public hearings (Ashland,Wisconsin, on July 17; Green Bay,Wisconsin, on July 18; Newberry,Michigan, on July 19; Traverse City,Michigan, on July 20; Indiana Dunes,Indiana, on July 24; Cleveland, Ohio, onJuly 25; and Watertown, New York, onJuly 27). On September 19, 2000, wepublished a document (65 FR 56530)announcing the reopening of thecomment period on the proposal todesignate critical habitat for the GreatLakes breeding population of the pipingplover and a notice of the availability ofthe draft economic analysis on theproposed determination. Our intentionwas for this comment period to bereopened for 60 days, but the documentstated that the comment period closedon October 19, 2000, or 30 days.Therefore, on September 28, 2000, wepublished a document (65 FR 58258)correcting the closing date of thereopened comment period to November20, 2000.

Critical Habitat

Critical habitat is defined in section 3of the Act as (i) the specific areas withinthe geographical area occupied by aspecies, at the time it is listed inaccordance with the Act, on which arefound those physical or biologicalfeatures (I) essential to the conservationof the species and (II) that may requirespecial management consideration orprotections; and (ii) specific areasoutside the geographic area occupied bya species at the time it is listed, upona determination that such areas areessential for the conservation of thespecies. ‘‘Conservation’’ means the useof all methods and procedures that arenecessary to bring an endangered or athreatened species to the point at whichlisting under the Act is no longernecessary.

Critical habitat receives protectionunder section 7 of the Act through theprohibition against destruction oradverse modification of critical habitatwith regard to actions carried out,funded, or authorized by a Federalagency. Section 7 also requiresconferences on Federal actions that arelikely to result in the destruction oradverse modification of proposedcritical habitat. In our regulations at 50CFR 402.02, we define destruction oradverse modification as ‘‘. . . the director indirect alteration that appreciablydiminishes the value of critical habitatfor both the survival and recovery of alisted species. Such alterations include,but are not limited to, alterationsadversely modifying any of thosephysical or biological features that werethe basis for determining the habitat tobe critical.’’ Aside from the addedprotection that may be provided undersection 7, the Act does not provide otherforms of protection to lands designatedas critical habitat. Critical habitatdesignation would not afford anyadditional protections under the Actagainst activities on private or othernon-Federal lands that do not involve aFederal nexus because the requirementfor consultation under section 7 of theAct does not apply to activities on thesetypes of lands.

In order to be included in a criticalhabitat designation, the habitat mustfirst be ‘‘essential to the conservation ofthe species.’’ Critical habitatdesignations identify, based on the bestscientific and commercial dataavailable, habitat areas that provideessential life cycle needs of the species(i.e., areas on which are found theprimary constituent elements, asdefined at 50 CFR 424.12(b)).

Within the geographic area occupiedby the species, we will designate only



areas currently known to be essential.Essential areas should already have thefeatures and habitat characteristics thatare necessary to sustain the species(primary constituent elements). We willnot speculate about what areas might befound to be essential if betterinformation became available, or whatother areas may become essential overtime. If the information available at thetime of designation does not show thatan area provides essential life cycleneeds of the species, then the areashould not be included in the criticalhabitat designation. Within thegeographic area occupied by the species,we will not designate areas that do notnow have the primary constituentelements, as defined at 50 CFR424.12(b), that provide essential lifecycle needs of the species.

Our regulations state that, ‘‘TheSecretary shall designate as criticalhabitat areas outside the geographic areapresently occupied by the species onlywhen a designation limited to itspresent range would be inadequate toensure the conservation of the species’’(50 CFR 424.12(e)). Accordingly, unlessthe best scientific and commercial datademonstrates that the conservationneeds of the species require designationof critical habitat outside of occupiedareas, we will not designate criticalhabitat in areas outside the geographicarea occupied by the species. However,if unoccupied areas are essential to therecovery of the species, they may bedesignated as critical habitat.

The Service’s policy on InformationStandards Under the EndangeredSpecies Act, published in the FederalRegister on July 1, 1994 (59 FR 34271),provides criteria, establishesprocedures, and provides guidance toensure that decisions made by theService represent the best scientific andcommercial data available. It requiresService biologists, to the extentconsistent with the Act and with the useof the best scientific and commercialdata available, to use primary andoriginal sources of information as thebasis for recommendations to designatecritical habitat. When determiningwhich areas are critical habitat, aprimary source of information should bethe listing package for the species.Additional information may be obtainedfrom a recovery plan, articles in peer-reviewed journals, conservation plansdeveloped by States and counties,scientific status surveys and studies,and biological assessments or otherunpublished materials (i.e. grayliterature).

Habitat is often dynamic, and speciesmay move from one area to another overtime. Furthermore, we recognize that

designation of critical habitat may notinclude all of the habitat areas that mayeventually be determined to benecessary for the recovery of thespecies. For these reasons, it should beunderstood that critical habitatdesignations do not signal that habitatoutside the designation is unimportantor may not be required for recovery.Areas outside the critical habitatdesignation will continue to be subjectto conservation actions that may beimplemented under section 7(a)(1) andto the regulatory protections afforded bythe section 7(a)(2) jeopardy standardand the section 9 take prohibition, asdetermined on the basis of the bestavailable information at the time of theaction. Federally funded or assistedprojects affecting listed species outsidetheir designated critical habitat areasmay still result in jeopardy findings insome cases. Similarly, critical habitatdesignations made on the basis of thebest available information at the time ofdesignation will not control thedirection and substance of futurerecovery plans, habitat conservationplans, or other species conservationplanning efforts if new informationavailable to these planning efforts callsfor a different outcome.

MethodsIn determining areas that are essential

to conserve the Great Lakes breedingpopulation of the piping plover, the bestscientific and commercial data availableincluded information solicited fromknowledgeable biologists and availableinformation pertaining to habitatrequirements of the species. In an effortto map areas essential to theconservation of the species, we useddata of known piping plover breedinglocations, records of historical nestingsites, International Census data, andthose areas that were identified in the1988 recovery plan and 1994 draftrecovery plan as essential for therecovery of the population. We havechosen the 35 critical habitat units inorder to protect adequate habitat to meetthe recovery criteria, contained in therecovery plan and draft recovery plan,of 100 breeding pairs in Michigan and50 breeding pairs in the other GreatLakes States combined. In addition,information provided in comments onthe proposed designation and drafteconomic analysis were evaluated andtaken into consideration in thedevelopment of this final designation.

Primary Constituent ElementsIn accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR424.12, in determining which areas topropose as critical habitat, we are

required to base critical habitatdeterminations on the best scientificand commercial data available. We alsoare required to consider those physicaland biological features that are essentialto the conservation of the species andthat may require special managementconsiderations and protection. Suchfeatures include, but are not limited to:space for individual and populationgrowth, and for normal behavior; food,water, air, light, minerals, or othernutritional or physiologicalrequirements; cover or shelter; sites forbreeding, reproduction, and rearing ofoffspring; and habitats that are protectedfrom disturbance or are representative ofthe historical geographical andecological distributions of a species.

The primary constituent elements forthe Great Lakes breeding population ofthe piping plover are those habitatcomponents that are essential forsuccessful foraging, nesting, rearing ofyoung, intra-specific communication,genetic exchange, roosting, dispersal, orsheltering.

The primary constituent elementsrequired to sustain the Great Lakesbreeding population of the pipingplover are found on Great Lakes islandsand mainland shorelines that supportopen, sparsely vegetated sandy habitats,such as sand spits or sand beaches, thatare associated with wide, unforestedsystems of dunes and inter-dunewetlands. In order for habitat to bephysically and biologically suitable forpiping plovers, it must have a totalshoreline length of at least 0.2 km (0.12mi) of gently sloping, sparsely vegetated(less than 50 percent herbaceous andlow woody cover) sand beach with atotal beach area of at least 2 hectares(ha) (5 acres (ac)).

Appropriately sized sites must alsohave areas of at least 50 meters (m) (164feet (ft)) in length where (1) the beachwidth is more than 7 m (23 ft), (2) thereis protective cover for nests and chicks,and (3) the distance to the treeline (fromthe normal high water line to where theforest begins) is more than 50 m (164 ft).Beach width is defined as the distancefrom the normal high water line to theforedune (a low barrier dune ridgeimmediately inland from the beach)edge, or to the sand/vegetationboundary in areas where the foredune isabsent. The beach width may benarrower than 7 m (23 ft) if appropriatesand and cobble areas of at least 7 m (23ft) exist between the dune and thetreeline.

Protective cover for nests and chicksconsists of small patches of herbaceousvegetation, cobble (stones larger than 1cm (0.4 inches (in)) diameter), gravel(stones smaller than 1 cm (0.4 in)



diameter), or debris such as driftwood,wrack, root masses, or dead shrubs.These areas must have a low level ofdisturbance from human activities andfrom domestic animals. As the nestingseason progresses, the level ofdisturbance tolerated by piping ploversincreases. A lower level of disturbanceis required at the beginning of thenesting period during nest site selection,egg laying, and incubation. Beachactivities that may be associated with ahigh level of disturbance include, butare not limited to, walking pets offleash, loud noise, driving all terrainvehicles (ATVs), or activities thatsignificantly increase the level of peopleusing the beach. The level ofdisturbance is relative to the proximityto the nest, intensity, and frequency ofthese and other similar activities.

The dynamic ecological processes thatcreate and maintain piping ploverhabitat are also important primaryconstituent elements. These geologicallydynamic lakeside regions are controlledby processes of erosion, accretion, plantsuccession, and lake-level fluctuations.The integrity of the habitat dependsupon regular sediment transportprocesses, as well as episodic, high-magnitude storm events. By theirnature, Great Lakes shorelines are in aconstant state of change; habitat featuresmay disappear, or be created nearby.The critical habitat boundaries reflectthese natural processes and the dynamiccharacter of Great Lakes shorelines.

Criteria Used To Identify CriticalHabitat

All of the designated critical habitatareas are considered essential to theconservation of the Great Lakes breedingpopulation of the piping plover asdescribed in the approved 1988Recovery Plan for the Great Lakes andNorthern Great Plains Piping Plover(Plan) and the 1994 Draft RevisedRecovery Plan for the Great LakesPiping Plover. The designationencompasses those areas considerednecessary to achieve the recovery goalsof 150 breeding pairs (USFWS 1988b,1994) for this population.

To identify critical habitat units, wefirst examined those sites identified as‘‘essential habitat’’ in the approvedRecovery Plan and draft revisedRecovery Plan. We began by evaluatingthose essential habitat areas that arecurrently (at least once during the past5 years) or were recently (in the last 5to 15 years) occupied by piping ploversin the Great Lakes. Through site visitsand consultation with local habitatexperts, we determined which of thesesites still contain the primaryconstituent elements. Piping plover

occupied habitat in the Great Lakes hasdeclined from historical occupation ofmore than 70 sites in eight States toapproximately 32 sites in two States(Wemmer 2000). The currently occupiedsites and recently occupied (since 1985)sites in Michigan may have the capacityto support an estimated 56 to 136breeding pairs (Wemmer 2000). Becauseof this severe reduction in range andnumbers of piping plovers, we havedetermined it is essential to theconservation of this species to includeall currently occupied habitat and allrecently occupied habitat that stillcontains the primary constituentelements in this critical habitatdesignation.

As we proceed with recovery efforts,expansion of the present smallpopulation will require more habitatthan is currently occupied by pipingplovers along the Great Lakes (Wemmer2000, USFWS 1988b, 1994). In an effortto protect sufficient habitat to allow forthe expansion of the species, our secondstep was to evaluate the essential habitatareas outlined in the Recovery Plan thatare documented as historical pipingplover habitat. In addition to evaluatingthose areas identified by the RecoveryPlan as essential habitat, we solicitedinformation from habitat experts onareas that contain the primaryconstituent elements and that wouldprovide suitable piping plover nestinghabitat. Based upon consultation withGreat Lakes piping plover habitatexperts, we determined whichhistorically occupied sites contain theprimary constituent elements and aresuitable for supporting nesting pipingplovers. We designated historicallyoccupied habitat in the Great Lakeswatershed (in the United States) thatstill contain the primary constituentelements.

Much known historical habitat in theGreat Lakes region has been destroyedor altered in such ways that it can nolonger support piping plovers (Wemmer2000, USFWS 1988b). As a result,suitable habitat areas that are currently/recently occupied, or that weredocumented to be historically occupied,are not sufficient to meet theconservation goals outlined in theapproved Recovery Plan and draftrevised Recovery Plan. Thus, as a finalstep, we evaluated those essentialhabitat areas identified in the RecoveryPlan where occupation has not beendocumented, but habitat features similarto currently occupied sites occur. Toreach the minimum amount of habitatsufficient to meet the recovery plangoals, we designated those areas that areknown to contain the primaryconstituent elements as critical habitat.

Critical habitat designation is effectiveyear-round, even if the primaryconstituent elements are temporarilyobscured by snow, ice, or othertemporary features.

In defining critical habitat boundaries,it was not possible to exclude allexisting human-made features andstructures, such as buildings, roads,marinas, piers, parking lots, bridges,boat ramps, lighthouses, and other suchhuman-made features, within the areadesignated. These features do notcontain most or all of the primaryconstituent elements and thus are notconsidered to be critical habitat despitetheir being within the geographicboundaries. Federal actions limited tothose features, therefore, would nottrigger a section 7 consultation, unlessthey affect the species and/or primaryconstituent elements within a criticalhabitat unit.

In summary, in determining areas thatare essential to the conservation of theGreat Lakes breeding population of thepiping plover, we used the bestscientific and commercial informationavailable to us. The critical habitat areasdescribed below constitute our bestassessment of areas needed for thespecies’ conservation and recovery.

Critical Habitat DesignationAt this time, the critical habitat units

discussed below are our best appraisalof areas needed for the conservation ofthe Great Lakes breeding population ofthe piping plover. Very little suitablepiping plover habitat remains in theGreat Lakes region, and all the areasidentified here are essential for therecovery of the species because theseareas represent the habitat necessary toachieve the recovery goal of 100breeding pairs in Michigan and 50breeding pairs in the other Great LakesStates combined. Critical habitatdesignations may be subsequentlyrevised if new information becomesavailable after this final rule ispublished. Any additional areas ofcritical habitat will be designated, orother changes made to this designation,only after a formal proposal andopportunity for public comment.

The approximate length of proposedcritical habitat shoreline identified byland ownership is shown in Table 1.Critical habitat includes Great Lakespiping plover habitat throughout thespecies’ breeding range in the UnitedStates. Lands proposed as criticalhabitat are under private, State,municipal, Tribal, and Federalownership, with Federal landsincluding lands managed by theNational Park Service, U.S. ForestService, U.S. Coast Guard, U.S. Army



Corp of Engineers, and by us. Estimates reflect the total area within criticalhabitat unit boundaries.

TABLE 1.—KILOMETERS OF GREAT LAKES SHORELINE PROPOSED AS CRITICAL HABITAT UNITS FOR THE PIPING PLOVER INEACH GREAT LAKES STATE SUMMARIZED BY FEDERAL, STATE, MUNICIPAL, PRIVATE AND OTHER OWNERSHIP

Ownershipkm shoreline (% within each State)

Federal State Municipal Private Other Total

Michigan ........................ 40.9 (18.3) 107.9 (48.1) 6.9 (3.1) 66.1 (29.1) 1.6 TNC (0.7) 223.4Minnesota ...................... 0 0.2 (100) 0 0 0 0.2Wisconsin ...................... 18.1 (40.0) 8.7 (19.2) 4.4 (9.7) 9.0 (19.9) 5.1 Tribal (11.2) 45.3Illinois ............................ 0 4.7 (46.1) 1.3 (12.7) 4.2 (41.2) 0 10.2Indiana .......................... 2.9 (36.7) 5.0 (63.3) 0 0 0 7.9Ohio ............................... 0 2.0 (50) 0 2.0 (50) 0 4.0Pennsylvania ................. 0 6.0 (100) 0 0 0 6.0New York ...................... 0 12.4 (45.3) 0 14.6 (53.3) 0.4 TNC (1.5) 27.4

Total (% of) ............ 61.9 (19.1) 146.9 (45.2) 12.6 (3.9) 95.9 (29.5) 7.1 (2.2) 324.4

Critical habitat has been designated in35 units in the Great Lakes region. Allcritical habitat unit boundaries extend500 meters (1640 feet) inland from thenormal high water line, although theinland edge of the area that contains the

primary constituent elements may varydepending on the extent of the opendune system. This area is needed toprovide foraging habitat as well asincorporate cobble pans between thedunes where piping plovers

occasionally nest. A brief description ofeach unit and reasons for designating itas critical habitat are presented belowand in Table 2. More detaileddescriptions are included with themaps.

TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHINMAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION

Habit unit Location name CountyUSGS 7.5′ quad

map(s)1:24,000 scale

Land ownership 1 Plover use 2Est.

length(km)

Whitefish Point to Grand Marais—

MI–1 ............... Whitefish Point ........... Chippewa ....... Whitefish Point (1951) Federal (USFWS), pri-vate.

Recent past, transient 2.5

Vermilion/Weatherhogs Beach.

Luce ............... Vermilion (1951) ........ Private ........................ Current ....................... 2.3

Crisp Point ................. Luce ............... Betsy Lake North(1968).

Municipal private ........ Recent past ................ 1.0

Little Lake Harbor ...... Luce ............... Betsy Lake North(1968).

Private ........................ Recent past ................ 1.6

Deer Park ................... Luce ............... Muskallonge LakeEast (1968);Muskallonge LakeWest (1968).

State, private .............. Recent past ................ 2.8

Grand Marais InnerHarbor and Lone-some Point.

Alger .............. Grand Marais (1968) Multiple private, mu-nicipal.

Current ....................... 2.9

Grand Marais Supe-rior Beach.

Alger .............. Grand Marais (1968) Multiple private, Fed-eral (NPS).

Current ....................... 1.2

MI–2 ............... Point Aux Chenes ...... Mackinac ........ Pointe Aux Chenes(1964, photorevised1975).

Federal (USFS), pri-vate.

Current ....................... 2.0

MI–3 ............... Port Inland ................. SchoolcraftMackinac.

Hughes Point (1972) .. Private/State .............. Current ....................... 3.0

Waugoshance Point to beach west of McCort Hill—

MI–4 ............... Waugoshance PointTemperance andCrane Islands.

Emmet ........... Big Stone Bay (1964,photoinspected1975),Waugoshance Is-land (provisional1982).

State ........................... Current ....................... 5.0

Sturgeon Bay ............. Emmet ........... Bliss (1982) ................ State ........................... Current ....................... 3.9Bliss Township Park .. Emmet ........... Bliss (1982) ................ Municipal .................... Current ....................... 1.1Sturgeon Bay Point .... Emmet ........... Bliss (1982) Cross Vil-

lage (1982).Multiple private ........... Current ....................... 2.4



TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHINMAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION—Continued




length(km)

Cross Village Beach .. Emmet ........... Cross Village (1982) .. Municipal, multiple pri-vate.

Current ....................... 1.3

Beach West McCortHill.

Emmet ........... Cross Village (1982) .. Multiple private ........... Current ....................... 1.4

Sevenmile Point to Thorneswift Nature Preserve—

MI–5 ............... Sevenmile Point ......... Emmet ........... Forest Beach (1983provisional).

Multiple private ........... Suitable ...................... 0.5

Thorneswift NaturePreserve.

Emmet ........... Forest Beach (1983provisional).

Multiple private ........... Current ....................... 0.4

MI–6 ............... Petoskey State Park .. Emmet ........... Harbor Springs (1983provisional).

State, private .............. Historical .................... 2.0

MI–7 ............... North Point ................. Charlevoix ...... Ironton (1983),Charlevoix (1983).

Municipal .................... Suitable ...................... 1.1

MI–8 ............... Fisherman’s IslandState Park.

Charlevoix ...... Charlevoix (1983) ...... State ........................... Current ....................... 1.3

Indian Point to McCauley’s Point, Beaver Island—

MI–9 ............... Donegal Bay-BeaverIsland.

Charlevoix ...... Garden Island West(1980), Beaver Is-land North (1986).

Multiple private ........... Current ....................... 2.0

McCauley’s Point-Beaver Island.

Charlevoix ...... Beaver Island North(1986).

State ........................... Recent past ................ 0.6

MI–10 ............. Greenes Bay-BeaverIsland.

Charlevoix ...... Beaver Island North(1986).

State/private ............... Recent past ................ 0.8

MI–11 ............. High Island ................. Charlevoix ...... High Island (1986) ..... State ........................... Current ....................... 1.8

Cathead Bay to Christmas Cove—

MI–12 ............. Cathead Bay .............. Leelanau ........ Northport (provisional1983).

State/private ............... Current ....................... 2.6

Cathead Point toChristmas Cove.

Leelanau ........ Northport/NorthportNW (provisional1983).

Private ........................ Suitable ...................... 2.5

MI–13 ............. South Fox Island ........ Leelanau ........ South Fox Island (pro-visional 1986).

State ........................... Historical .................... 6.0

MI–14 ............. North Manitou ............ Leelanau ........ North Manitou Island(provisional 1983).

Federal (NPS) ............ Current ....................... 3.3

MI–15 ............. Crystal Run to EmpireBeach.

Leelanau ........ Glen Arbor (1983),Glen Haven (1983),Empire (1983).

Municipal, Federal ..... Suitable ...................... 18.6

Esch Road to Sutter Road and Point Betsie—

MI–16 ............. Platte Bay and PlatteRiver Point andbeach.

Benzie ............ Empire (1983), Beulah(provisional 1983).

Federal (NPS) ............ Suitable/current .......... 13.8

Point Betsie ................ Benzie ............ Frankfort (1983) ......... Federal (USCG) TNCmanaged, private.

Historical .................... 4.8

MI–17 ............. Nordhouse Dunes toLudington.

Mason ............ Manistee NW (provi-sional 1982), Ham-lin Lake (1982).

Federal (USFS), State Transient, historical .... 13.4

MI–18 ............. Muskegon State Park Muskegon ...... Muskegon West(1972,photoinspected1980).


MI–19 ............. Lake Superior StateForest, St. VitalPoint.

Chippewa ....... Albany Island (1964,photoinspected1976), DeTour Vil-lage (1964).


Lighthouse Point to Cordwood Point—

MI–20 ............. Lighthouse Point ........ Cheboygan .... Cheboygan (1982) ..... State ........................... Recent past ................ 1.4Grass Bay .................. Cheboygan .... Cordwood Point

(1982).TNC preserve ............ Historical transient ..... 1.6



TABLE 2.—LOCATION, OWNERSHIP, PIPING PLOVER USE, AND ESTIMATED LENGTH OF CRITICAL HABITAT AREAS WITHINMAPPED CONSERVATION UNITS IN THE U.S. GREAT LAKES REGION—Continued




length(km)

MI–21 ............. PH Hoeft State Park .. Pesque Isle .... Roger’s City (1971),Moltke (1971).

State ........................... Suitable ...................... 3.7

MI–22 ............. Thompson’s Harbor ... Presque Isle ... Thompson’s Harbor(1971).

State, private .............. Suitable ...................... 2.8

MI–23 ............. Tawas Point StatePark.

Iosco .............. East Tawas (1989) .... State ........................... Suitable, transient ...... 2.0

MN/WI–1 ........ Duluth Harbor ............ St. Louis ......... West Duluth (1953,photorevised 1969).

State, private .............. Recent past ................ 0.6

WI–1 ............... Wisconsin Point ......... Douglas .......... Parkland (1954,photorevised 1975),Superior (1954,photorevised 1983).

Municipal, Federal(USACE).

Historical .................... 4.0

WI–2 ............... Long Island-Chequamegon Pt.

Ashland .......... Cedar (1964,photorevised 1975),Chequamegon Point(1964, photorevised1975), Long Island(1964).

Federal (NPS) tribal(Bad River), private.

Current ....................... 25.3

WI–3 ............... Western Michigan Is-land.

Ashland .......... Michigan Island(1963).

Federal (NPS) ............ Suitable ...................... 6.5

WI–4 ............... Seagull Bar ................ Marinette ........ Marinette East (1963,photorevised 1969).

State, municipal ......... Suitable ...................... 1.5

WI–5 ............... Point Beach StateForest.

Manitowoc ...... Two Rivers (1978) ..... State ........................... Suitable ...................... 8.0

IL–1 ................ Illinois Beach StatePark to WaukeganBeach.

Lake ............... Zion, Ill. (1993), Wau-kegan (1993).

Municipal, State, pri-vate.

Historical .................... 10.2

IN–1 ................ Indiana Dunes Na-tional Lakeshore/In-diana Dunes StatePark.

Porter ............. Ogden Dunes (1991),Dunes Acres (1991).

Federal (NPS), State Historical, transient .... 7.9

OH–1 .............. Sheldon Marsh ........... Erie ................ Huron (1969), San-dusky (1969,photorevised 1975).

State, private .............. Transient .................... 3.2

OH–2 .............. Headlands Dunes ...... Lake ............... Mentor (1963, revised1992).

State ........................... Historical/suitable ....... 0.8

PA–1 .............. Presque Isle StatePark.

Erie ................ Erie North (1957, re-vised 1969 and1975,photoinspected1977).

State ........................... Historical, transient .... 6.0

NY–1 .............. Salmon River to StonyPoint.

Oswego, Jef-ferson.

Pulaski (1956),Ellisburg (1958),Henderson (1959).

State, multiple private Historical .................... 27.4

1 USACE = U.S. Army Corp of Engineers;NPS = National Park Service;TNC = The Nature Conservancy;USFS = U.S. Forest Service;USFWS= U.S. Fish and Wildlife Service;USCG = U.S. Coast Guard.

2 Current = used for nesting since 1995; recent past = used for nesting since 1985; historical = used for nesting prior to 1985; transient = re-cent (since 1990) sightings of piping plovers; suitable = no known record of use but habitat appears suitable for nesting and is within the historicrange of piping plover.

Michigan

Unit MI–1: Whitefish Point to GrandMarais

This unit encompasses approximately83.5 km (50 mi) of Lake Superiorshoreline in Chippewa, Luce, and AlgerCounties on the Upper Peninsula ofMichigan. It includes long stretches ofhabitat that have been recently used bypiping plovers in addition to areascurrently used by plovers.Approximately 47 km (29.2 mi) are partof Muskallonge State Park and LakeSuperior State Forest, approximately 36

km (22.4 mi) are privately owned, andapproximately 0.5 km (0.3 mi) are partof Whitefish Point National WildlifeRefuge. This unit also includes a smallarea of municipal property at CrispPoint. This unit extends from justsouthwest of Whitefish Point, aroundand including the Point, and westwardto the Pictured Rocks NationalLakeshore property boundary, excludingthe area from the junction of Highway58 and Morris Road to the breakwallnorth of the harbor near the formerCoast Guard station in Grand Marais.

Unit MI–2: Pointe Aux Chenes

This unit encompasses approximately1.7 km (1.1 mi) of Lake Michiganshoreline in Mackinac County on theUpper Peninsula of Michigan. Itincludes areas that are currentlyoccupied by piping plovers. Themajority of the unit (1.1 km (0.7 mi)) iswithin the Hiawatha National Forestand is being considered for a Researchand Natural Area. The rest of the unit(approximately 0.6 km (0.4 mi)) isprivately owned land. This unit extendsfrom the mouth of the Pointe Aux



Chenes river to the Hiawatha NationalForest property boundary.

Unit MI–3: Port Inland to Hughes Point

This unit encompasses approximately3 km (1.8 mi) of Lake Michiganshoreline in western Mackinac andeastern Schoolcraft Counties on theUpper Peninsula of Michigan. Itincludes areas that are currentlyoccupied by piping plovers.Approximately 0.8 km (0.5 mi) of thedesignated shoreline is owned by PortInland Stone and Dolomite Quarry andthe remaining 2.2 km (1.4 mi) are partof the Lake Superior State Forest. Thisunit extends from the westernmostbreakwall at the Port Inland GagingStation to the mouth of Swan Creek.

Unit MI–4: Waugoshance Point toMcCort Hill Beach

This unit encompasses approximately32 km (19.2 mi) of Lake Michiganshoreline in Emmet County, Michigan,and includes Temperance andWaugoshance islands. It includes areasthat are currently occupied by pipingplovers and supports about half of thecurrent Great Lakes piping ploverpopulation. Approximately 8.5 km (5.3mi) are privately owned and 1 km (0.6mi) is municipal land (Bliss Townshipbeach and Cross Village beach). Theremaining 22.5 km (14 mi) are part ofWilderness State Park. This unit extendsfrom the junction of the northeast cornerof T39N R5W section 28 and the LakeMichigan shoreline in Wilderness StatePark, including Waugoshance andTemperance Islands, to the southwestboundary of T37N R6W section 5 southof Cross Village.

Unit MI–5: Sevenmile Point toThornswift Nature Preserve

This unit encompasses approximately7 km (4.3 mi) of Lake Michiganshoreline in Emmet County, Michigan.It includes areas of suitable pipingplover nesting habitat and areas that arecurrently occupied by piping plovers.The entire designated area is underprivate ownership. It extends from thejunction of the Lake Michigan shorelineand the northwest boundary of T36NR6W section 30 to the junction of theshoreline and the southeast corner ofT35N R6W section 9.

Unit MI–6: Petoskey State Park

This unit encompasses approximately2 km (1.2 mi) of Lake Michiganshoreline in Emmet County, Michigan.It includes areas of historical pipingplover habitat. Approximately 0.7 km(0.4 mi) is privately owned land and 1.3km (0.8 mi) are part of Petoskey State

Park. This unit extends from the mouthof Tannery Creek to Mononaqua Beach.

Unit MI–7: North Point

This unit encompasses approximately1.1 km (0.7 mi) of Lake Michiganshoreline in Charlevoix County,Michigan. It includes areas of suitablepiping plover nesting habitat. The entiredesignated area is a city park owned bythe city of Charlevoix. It includes allLake Michigan shoreline within T34NR8W section 14.

Unit MI–8: Fisherman’s Island StatePark

This unit encompasses approximately1.3 km (0.8 miles) of Lake Michiganshoreline in Charlevoix County,Michigan. It includes areas that arecurrently occupied by piping plovers.The entire designated area is withinFisherman’s Island State Park. This unitextends from the junction of the lineseparating T34N R8W section 31 andT33N R8W section 6 from the LakeMichigan shore to the Fisherman’sIsland State Park property boundary atthe end of Lakeshore Drive, includingFisherman Island.

Unit MI–9: Indian Point to McCauley’sPoint, Beaver Island

This unit encompasses approximately5 km (3.1 mi) of Lake Michiganshoreline on Beaver Island inCharlevoix County, Michigan. Itincludes areas that are currentlyoccupied, as well as areas that havebeen recently used by piping plovers.Approximately 4.4 km (2.7 mi) areprivately owned and 0.6 km (0.4 mi) ispart of Beaver Islands State WildlifeResearch Area. This unit extends fromIndian Point southward to the junctionof the dividing line of T39 N R10W andT38N R10W and the Lake Michiganshoreline.

Unit MI–10: Greenes Bay, Beaver Island

This unit encompasses approximately0.8 km (0.5 mi) of Lake Michiganshoreline on Beaver Island inCharlevoix County, Michigan. Itincludes areas that have been recentlyused by piping plovers. Approximately0.3 km (0.2 mi) is part of the BeaverIslands State Wildlife Research Areaand the remaining 0.5 km (0.3 mi) isprivately owned land. This unitencompasses Greenes Bay on thewestern side of Beaver Island.

Unit MI–11: High Island

This unit encompasses approximately1.8 km (1.1 mi) of Lake Michiganshoreline on High Island in CharlevoixCounty, Michigan. It includes areas thatare currently occupied by piping

plovers. The entire designated area ispart of the Beaver Islands State WildlifeResearch Area. This unit includes allLake Michigan shoreline within T39NR11W section 32 and T38N R11Wsection 5 on the western side of theisland and within T39N R11W section27 on the northeastern corner of theisland.

Unit MI–12: Cathead Bay to ChristmasCove

This unit encompasses approximately5.1 km (3.2 mi) of Lake Michiganshoreline in Leelanau County,Michigan. It includes areas that arecurrently occupied by piping ploversand areas of suitable piping plovernesting habitat. Approximately 1.9 km(1.2 mi) are part of Leelanau State Park,and the remaining 3.2 km (2.0 mi) areprivately owned land. This unit extendsfrom the northwest end of Cathead Baysouthward to just north of ChristmasCove, excluding lands of the MagicCarpet Woods Association HCP.

Unit MI–13: South Fox IslandThis unit encompasses approximately

6 km (3.8 mi) of Lake Michiganshoreline on South Fox Island inLeelanau County, Michigan. It includesareas that were historically occupied bypiping plovers. The entire designatedarea is part of the Beaver Island StateWildlife Research Area. This unitincludes all Lake Michigan shorelinewithin T34N R13W sections 15, 16, and21 on the south end of the island andwithin T35N R13W section 30 on thenorth end of the island.

Unit MI–14: North and South ManitouIslands

This unit encompasses approximately3.3 km (2.1 mi) of Lake Michiganshoreline on North Manitou Island inLeelanau County, Michigan. It includesareas that are currently occupied bypiping plovers. The entire designatedarea is part of Sleeping Bear DunesNational Lakeshore. This unit includesDimmick’s Point and Donner’s Point onthe southern end of North ManitouIsland.

Unit MI–15: Crystal Run to EmpireBeach

This unit encompasses approximately18.6 km (11.6 mi) of Lake Michiganshoreline in Leelanau County,Michigan. It includes areas of suitablepiping plover nesting habitat.Approximately 4.8 km (3.0 mi) aremunicipal beach in Glen ArborTownship, and the remaining 13.8 km(8.6 mi) are part of Sleeping Bear DunesNational Lakeshore. This unit extendsfrom Crystal Run to the southern



Sleeping Bear Dunes National Lakeshoreproperty boundary.

Unit MI–16: Esch Road to Sutter Roadand Point Betsie

This unit encompasses approximately18.6 km (11.6 mi) of Lake Michiganshoreline in Benzie County, Michigan. Itincludes areas that are currentlyoccupied by piping plovers, areas thatwere historically occupied, and areas ofsuitable piping plover nesting habitat.The majority of the unit (13.8 km (8.6mi)) is part of Sleeping Bear DunesNational Lakeshore, 3.8 km (2.4 mi) areprivate land, and the remaining 1.0 km(0.6 mi) is U.S. Coast Guard land that ismanaged by The Nature Conservancy, aprivate conservation organization. Thisunit extends from Esch Road to theSleeping Bear Dunes National Lakeshoreproperty boundary at Sutter Road. Theunit then continues from the PointBetsie Natural Area northern propertyboundary south to include all shorelinewithin T26N R16W section 4.

Unit MI–17: Nordhouse Dunes andLudington State Park

This unit encompasses approximately13.4 km (8.3 mi) of Lake Michiganshoreline in Mason County, Michigan. Itincludes areas that were historicallyoccupied by piping plovers. At least onepair of piping plovers were sighted inthe area in 1999, but no nests werefound. Approximately 7.4 km (4.6 mi)are part of the Manistee National Forest/Nordhouse Dunes Wilderness Area, andthe remaining 6.0 km (3.7 mi) are partof Ludington State Park. This unitextends from the mouth of Cooper Creekto the mouth of the Big Sable River.

Unit MI–18: Muskegon State ParkThis unit encompasses approximately

2.5 km (1.6 mi) of Lake Michiganshoreline in Muskegon County,Michigan. It includes areas that werehistorically occupied by piping plovers.In the early 1950s, several pairs ofpiping plovers were reported nesting inthis unit, but the last known nesting wasin 1953. The entire designated area ispart of Muskegon State Park. This unitextends from the north breakwall of thecanal joining Muskegon Lake and LakeMichigan to the northern MuskegonState Park property boundary at theshoreline.

Unit MI–19: Lake Superior State Forest-St. Vital Point

This unit encompasses approximately3.0 km (1.9 mi) of Lake Huron shorelinein Chippewa County, Michigan. Itincludes areas that were historicallyoccupied by piping plovers. The entiredesignated area is within Lake Superior

State Forest. This unit extends from theLake Superior State Forest boundary tothe mouth of Joe Straw Creek.

Unit MI–20: Lighthouse Point toCordwood Point

This unit encompasses approximately5.2 km (3.3 mi) of Lake Huron shorelinein Cheboygan County, Michigan. Itincludes areas that were historicallyoccupied by piping plovers andcurrently serve as foraging areas.Approximately 3 km (1.9 mi) are part ofCheboygan State Park, andapproximately 1.6 km (1 mi) are NatureConservancy property. The remaining0.6 km (0.4 mi) is privately owned land.This unit extends from the junction ofthe Lake Huron shoreline and thewestern boundary of T38N R1W section22 near Lighthouse Point to just west ofCordwood Point.

Unit MI–21: P.H. Hoeft State ParkThis unit encompasses approximately

3.7 km (2.3 mi) of Lake Huron shorelinein Presque Isle County, Michigan. Itincludes areas of suitable piping plovernesting habitat. The entire designatedarea is part of P.H. Hoeft State Park.This unit includes Lake Huron shorelinewithin T35N R5E section 6northwestward to the junction of NagelRoad and Forty Mile Road.

Unit MI–22: Thompson’s Harbor StatePark

This unit encompasses approximately2.8 km (1.7 mi) of Lake Huron shorelinein Presque Isle County, Michigan. Itincludes areas of suitable piping plovernesting habitat. Most of this designatedarea is within Thompson’s Harbor StatePark with a small portion of privatelyowned land. This unit extends along theLake Huron shoreline from Black Pointto Grand Lake Outlet.

Unit MI–23: Tawas Point State ParkThis unit encompasses approximately

2.0 km (1.2 mi) of Lake Huron shorelinein Iosco County, Michigan. It includesareas used for foraging by transientpiping plovers and suitable nestinghabitat. The entire designated area ispart of Tawas Point State Park. This unitextends from the Tawas Sate Parkboundary on the east side of TawasPoint including all shoreline withinT22N R8E section 34 and offshore sandspits.

Minnesota/Wisconsin

Unit MN/WI–1: Interstate IslandThis unit encompasses approximately

0.6 km (0.4 mi) of Lake Superiorshoreline on Interstate Island in St.Louis County, Minnesota and DouglasCounty, Wisconsin. Although piping

plover nesting has not been documentedon this island, it contains viable pipingplover habitat. A portion of the 0.6 km(0.4 mi) of island shoreline on InterstateIsland is in Minnesota, and a portion isin Wisconsin. Approximately 0.2 km(0.1 mi) of Interstate Island shoreline isowned by the State of Minnesota and isa State Wildlife Management Area andbird sanctuary. The remaining 0.4 km(0.2 mi) of Interstate Island shoreline isin Wisconsin and is private land ownedby C. Rice Coal and Burlington NorthernRailroad. This unit is comprised ofInterstate Island.

Wisconsin

Unit WI–1: Wisconsin PointThis unit encompasses approximately

4.0 km (2.5 mi) of Lake Superiorshoreline in Douglas County,Wisconsin. It includes areas that werehistorically occupied by piping plovers.Approximately 0.4 km (0.2 mi) of theunit is Army Corps of Engineers land.The rest of the designated area ismunicipal land belonging to the city ofSuperior. This unit extends from themouth of Dutchman Creek to theDouglas and St. Louis County line.

Unit WI–2: Long Island/ChequamegonPoint

This unit encompasses approximately25.3 km (15.7 mi) of Lake Superiorshoreline in Ashland County,Wisconsin. It includes areas currentlyoccupied by piping plovers. Nestingoccurred in this unit in 1998 and 1999.Approximately 11.2 km (6.9 mi) are partof the Apostle Islands NationalLakeshore, approximately 9.0 km (5.6mi) are private land, and the remaining5.1 km (3.2 mi) are Tribal landsbelonging to the Bad River Band of LakeSuperior Tribe of Chippewa Indians.This unit extends from the base ofChequamegon Point (where it meets themainland) to Chequamegon Point Light.

Unit WI–3: Western Michigan IslandBeach and Dunes

This unit encompasses approximately6.5 km (4 mi) of Lake Superior shorelineon Michigan Island in Ashland County,Wisconsin. It includes areas of suitablepiping plover nesting habitat. The entiredesignated area is part of the ApostleIsland National Lakeshore. This unitincludes all Lake Superior shoreline onMichigan Island within T51N R1Wsections 28, 20, and 21.

Unit WI–4: Seagull BarThis unit encompasses approximately

1.5 km (0.9 mi) of Lake Michiganshoreline in Marinette County,Wisconsin. It includes areas of suitablepiping plover nesting habitat. About one



half of the unit is State owned and theother half is municipal property ownedby the city of Marinette. This unitextends from the end of Leonard Streetat Red Arrow Park to the south end ofSeagull Bar including nearshore sandbars.

Unit WI–5: Point Beach State ForestThis unit encompasses approximately

8 km (5 mi) of Lake Michigan shorelinein Manitowoc County, Wisconsin. Itincludes areas of suitable piping plovernesting habitat. The entire designatedarea is part of the Point Beach StateForest. This unit extends from thesouthwest property boundary of PointBeach State Forest to Rawley Point.

Illinois

Unit IL–1: Illinois Beach State Park andNature Preserve to Waukegan Beach

This unit encompasses approximately10.2 km (6.3 mi) of Lake Michiganshoreline in Lake County, Illinois. Itincludes areas that were historicallyoccupied by piping plovers.Approximately 4.7 km (2.9 mi) are partof the Illinois Beach State Park andNature Preserve, approximately 1.3 km(0.8 mi) are municipal property (Zionmunicipal park and Waukeganmunicipal beach), and the remaining 4.2km (2.6 mi) are privately owned. Thisunit extends from 17th Street and theLake Michigan shoreline in IllinoisBeach State Park southward to thenorthernWaukegan Beach breakwall atNorth Beach Park, excluding the publicbeach and campground to just south ofthe Illinois Beach State Park Lodge andConference Center.

Indiana

Unit IN–1: Indiana Dunes NationalLakeshore and Indiana Dunes StatePark Beaches

This unit encompasses approximately7.9 km (4.9 mi) of Lake Michiganshoreline in Porter County, Indiana. Itincludes areas that were historicallyoccupied by piping plovers. 5 km (3.1mi) are part of Indiana Dunes State Parkand the remaining 2.9 km (1.8 mi) arepart of Indiana Dunes NationalLakeshore. This unit extends from thewestern boundary of the Cowels Bog/Dune Acres Unit, east of the Port ofIndiana and the NIPSCO BailyGenerating Station and along theIndiana Dunes State Park to Kemil Roadat Beverly Shores.

Ohio

Unit OH–1: Sheldon MarshThis unit encompasses approximately

3.2 km (2.0 mi) of Lake Erie shorelinein Erie County, Ohio. It includes

foraging areas for transient pipingplovers and suitable nesting habitat.Approximately 1.2 km (0.7 mi) are partof Sheldon Marsh State Nature Preserve,and the remaining 2.0 km (1.2 mi) areprivately owned land. This unit extendsfrom the mouth of Sawmill Creek to thewestern property boundary of SheldonMarsh State Natural Area.

Unit OH–2: Headland DunesThis unit encompasses approximately

0.8 km (0.5 mi) of Lake Erie shorelinein Lake County, Ohio. It includeshistorical nesting habitat and areas ofsuitable piping plover nesting habitat.The entire designated area is part ofHeadland Dunes State Nature Preserve.This unit extends from the easternboundary line of Headland DunesNature Preserve to the westernboundary of the Nature Preserve andHeadland Dunes State Park.

Pennsylvania

Unit PA–1: Gull Point Natural Area,Presque Isle State Park

This unit encompasses approximately6.0 km (3.7 mi) of Lake Erie shorelinein Erie County, Pennsylvania. Itincludes foraging areas for transientpiping plovers and areas that werehistorically used for nesting. The entireunit is part of the Presque Isle StatePark. This unit extends from thelighthouse north of Peninsula Drive onthe north side of Presque Isle to thesouthern terminus of the hiking trail onthe southeast side of Gull Point. Itincludes any new beach habitat thatmay accrete along the present shorelineportion of the unit.

New York

Unit NY–1: Salmon River to Stony PointThis unit encompasses approximately

27.4 km (17 mi) of Lake Ontarioshoreline in Jefferson and OswegoCounties, New York. It includes areasthat were historically occupied bypiping plovers. Approximately 12.4 km(7.7 mi) are State land (New York StateDepartment of EnvironmentalConservation (DEC) WildlifeManagement Area/ New York DECUnique Area and New York State Park),approximately 14.6 km (9.1 mi) areprivately owned, and the remaining 0.4km (0.2 mi) belong to The NatureConservancy. This unit extends from themouth of the Salmon River to theEldorado Road.

Effects of Critical Habitat Designation

Section 7 ConsultationSection 7(a) of the Act requires all

Federal agencies, including the Service,to ensure that actions they fund,

authorize, or carry out do not destroy oradversely modify critical habitat to theextent that the action appreciablydiminishes the value of the criticalhabitat for the survival and recovery ofthe species. Individuals, organizations,States, Tribes, local governments, andother non-Federal entities are affectedby the designation of critical habitatonly if their actions occur on Federallands, require a Federal permit, license,or other authorization, or involveFederal funding.

Section 7(a) of the Act requires allFederal agencies to evaluate theiractions with respect to any species thatis proposed or listed as endangered orthreatened and with respect to itsproposed or designated critical habitat.Regulations implementing thisinteragency cooperation provision of theAct are codified at 50 CFR part 402.Section 7(a)(4) of the Act requiresFederal agencies to confer with us onany action that is likely to jeopardizethe continued existence of a proposedspecies or result in destruction oradverse modification of proposedcritical habitat. Conference reportsprovide conservation recommendationsto assist the agency in eliminatingconflicts that may be caused by theproposed action. The conservationrecommendations in a conference reportare advisory. If a species is listed orcritical habitat is designated, section7(a)(2) requires Federal agencies toensure that activities they authorize,fund, or carry out are not likely tojeopardize the continued existence ofthe species or to destroy or adverselymodify its critical habitat. If a Federalaction may affect a listed species or itscritical habitat, the responsible Federalagency (action agency) must consultwith us. Through this consultation wewould ensure that the permitted actionsdo not destroy or adversely modifycritical habitat.

When we issue a biological opinionconcluding that a Federal action islikely to result in the destruction oradverse modification of critical habitat,we also provide reasonable and prudentalternatives to the project, if any areidentifiable. Reasonable and prudentalternatives are defined at 50 CFR402.02 as alternative actions identifiedduring consultation that can beimplemented in a manner consistentwith the intended purpose of the action,that are consistent with the scope of theFederal agency’s legal authority andjurisdiction, that are economically andtechnologically feasible, and that webelieve would avoid destruction oradverse modification of critical habitat.Reasonable and prudent alternatives canvary from slight project modifications to



extensive redesign or relocation of theproject. Costs associated withimplementing a reasonable and prudentalternative are similarly variable.

Regulations at 50 CFR 402.16 requireFederal agencies to reinitiateconsultation on previously reviewedactions in instances where criticalhabitat is subsequently designated andthe Federal agency has retaineddiscretionary involvement or controlover the action or such discretionaryinvolvement or control is authorized bylaw. Consequently, some Federalagencies may request reinitiation ofconsultation with us on actions forwhich formal consultation has beencompleted, if those actions may affectdesignated critical habitat. Further,some Federal agencies may haveconferenced with us on proposedcritical habitat. We may adopt theformal conference report as thebiological opinion when critical habitatis designated, if no significant newinformation or changes in the actionalter the content of the opinion (see 50CFR 402.10(d)).

Activities on Federal lands that mayaffect the piping plover or its criticalhabitat will require section 7consultation. Activities on private, Stateor Tribal lands requiring a permit fromthe U.S. Army Corps of Engineers (ArmyCorps) under section 404 of the CleanWater Act, or some other Federal action,including funding (e.g from the FederalHighway Administration,Environmental Protection Agency, orFederal Emergency ManagementAgency) will also continue to be subjectto the section 7 consultation process.Federal actions not affecting listedspecies or critical habitat and actions onnon-Federal lands that are not federallyfunded or permitted do not requiresection 7 consultation.

Section 4(b)(8) of the Act requires usto evaluate briefly in any proposed orfinal regulation that designates criticalhabitat those activities involving aFederal action that may adverselymodify such habitat or may be affectedby such designation. Activities that maydestroy or adversely modify criticalhabitat include those that alter theprimary constituent elements to theextent that the value of critical habitatfor both the survival and recovery of theGreat Lakes breeding population of thepiping plover is appreciablydiminished. We note that such activitiesmay also jeopardize the continuedexistence of the species.

To properly portray the effects ofcritical habitat designation, we mustfirst compare the section 7 requirementsfor actions that may affect criticalhabitat with the requirements for

actions that may affect a listed species.Section 7 prohibits actions funded,authorized, or carried out by Federalagencies from jeopardizing thecontinued existence of a listed speciesor destroying or adversely modifying thelisted species’ critical habitat. Actionslikely to ‘‘jeopardize the continuedexistence’’ of a species are those thatwould appreciably reduce thelikelihood of the species’ survival andrecovery. Actions likely to ‘‘destroy oradversely modify’’ critical habitat arethose that would appreciably reduce thevalue of critical habitat for the survivaland recovery of the listed species.

Common to both definitions is anappreciable detrimental effect on bothsurvival and recovery of a listed species.Given the similarity of these definitions,actions likely to destroy or adverselymodify critical habitat would almostalways result in jeopardy to the speciesconcerned when the area of theproposed action is occupied by thespecies. In those cases, it is highlyunlikely that additional modifications tothe action would be required as a resultof designating critical habitat. However,critical habitat may provide benefitstoward recovery when designated inareas unoccupied by the species.

Designation of critical habitat couldaffect Federal agency activities. Federalagencies already consult with us onactivities that may affect the species toensure that their actions do notjeopardize the continued existence ofthe species. These actions include, butare not limited to: (1) Marina and boatlaunch construction and maintenance;(2) harbor dredging and dredge spoilplacement and disposal; (3) fill ofinterdunal wetlands for residence,driveway, or other construction; (4)waste-water discharge fromcommunities; (5) all-terrain vehicularactivity on beaches or the constructionof facilities that increase such activity;(6) beach stabilization activities thatimpede natural overwash processesincluding beach nourishment, plantingof vegetation, and construction andmaintenance of seawalls, breakwaters,and other off-shore stabilizing devices;(7) sale, exchange, or lease of Federalland that contains suitable habitat thatis likely to result in the habitat beingdestroyed or appreciably degraded; (8)oil and other hazardous material spillsand cleanup; and (9) stormwater andwastewater discharge fromcommunities. Additionally, publicaccess may be temporarily or seasonallyrestricted on beaches under Federalownership or jurisdiction to reducedisturbance so that piping plovers insearch of suitable nesting sites couldutilize them. Some of these closures

may be voluntary by governmental andprivate land managers. Most closureswould end prior to the time the publicwould frequent these beaches.

This section serves in part as a generalguide to clarify activities that may affector destroy or adversely modify criticalhabitat. However, specific Federalactions should be reviewed by theaction agency. If the agency determinesthe activity may affect critical habitat,they will consult with us under section7 of the Act. We will work with theagencies and affected public early in theconsultation process to avoid orminimize potential conflicts and,whenever possible, find a solution thatprotects listed species and their habitatwhile allowing the action to go forwardin a manner consistent with its intendedpurpose.

Exclusions Under Section 4(b)(2)Subsection 4(b)(2) of the Act allows

us to exclude areas from critical habitatdesignation where the benefits ofexclusion outweigh the benefits ofdesignation, provided the exclusion willnot result in the extinction of thespecies. For the following reasons, webelieve that in most instances thebenefits of excluding areas covered byapproved Habitat Conservation Plans(HCPs) from critical habitat designationswill outweigh the benefits of includingthem.

(1) Benefits of InclusionThe benefits of including HCP lands

in critical habitat are normally small.The principal benefit of any designatedcritical habitat is that Federal activitiesin such habitat that may affect it requireconsultation under section 7 of the Act.Such consultation would ensure thatadequate protection is provided to avoidadverse modification of critical habitat.Where HCPs are in place, ourexperience indicates that this benefit issmall or non-existent. Currentlyapproved and permitted HCPs arealready designed to ensure the long-term survival of covered species withinthe plan area. Where we have anapproved HCP, lands that we ordinarilywould define as critical habitat for thecovered species will normally beprotected in reserves and otherconservation lands by the terms of theHCP and its implementationagreements. The HCP andimplementation agreements includemanagement measures and protectionsfor conservation lands that are crafted toprotect, restore, and enhance their valueas habitat for covered species.

In addition, a 10(a)(1)(B) permitissued by us as a result of an HCPapplication must itself undergo



consultation. While this consultationmay not look specifically at the issue ofadverse modification of critical habitat,it will look at the very similar conceptof jeopardy to the listed species in theplan area. Since HCPs, particularly largeregional HCPs, address land use withinthe plan boundaries, habitat issueswithin the plan boundaries will havebeen thoroughly addressed in the HCPand the consultation on the HCP. Ourexperience is also that, under mostcircumstances, consultations under thejeopardy standard will reach the sameresult as consultations under theadverse modification standard.Implementing regulations (50 CFR Part402) define ‘‘jeopardize the continuedexistence of’’ and ‘‘destruction oradverse modification of’’ in virtuallyidentical terms. Jeopardize thecontinued existence of means to engagein an action ‘‘that reasonably would beexpected to reduce appreciably thelikelihood of both the survival andrecovery of a listed species.’’Destruction or adverse modificationmeans an ‘‘alteration that appreciablydiminishes the value of critical habitatfor both the survival and recovery of alisted species.’’ Common to bothdefinitions is an appreciable detrimentaleffect on both survival and recovery ofa listed species, in the case of criticalhabitat by reducing the value of thehabitat so designated. Thus, actionssatisfying the standard for adversemodification are nearly always found toalso jeopardize the species concerned,and the existence of a critical habitatdesignation does not materially affectthe outcome of consultation. Additionalmeasures to protect the habitat fromadverse modification are not likely to berequired.

Further, HCPs typically provide forgreater conservation benefits to acovered species than section 7consultations because HCPs assure thelong term protection and management ofa covered species and its habitat, andfunding for such management throughthe standards found in the 5-PointPolicy for HCPs (64 FR 35242) and theHCP No Surprises regulation (63 FR8859). Such assurances are typically notprovided by section 7 consultationswhich, in contrast to HCPs, often do notcommit the project proponent to longterm special management or protections.Thus, a consultation typically does notaccord the lands it covers the extensivebenefits an HCP provides.

The development and implementationof HCPs provide other importantconservation benefits, including thedevelopment of biological informationto guide conservation efforts and assistin species recovery and the creation of

innovative solutions to conserve specieswhile allowing for development. Theeducational benefits of critical habitat,including informing the public of areasthat are important for the long-termsurvival and conservation of the species,are essentially the same as those thatwould occur from the public notice andcomment procedures required toestablish an HCP, as well as the publicparticipation that occurs in thedevelopment of many regional HCPs.For these reasons, then, we believe thatdesignation of critical habitat has littlebenefit in areas covered by HCPs.

(2) Benefits of ExclusionThe benefits of excluding HCPs from

being designated as critical habitat maybe more significant. During two publiccomment periods on our critical habitatpolicy, we received several commentsabout the additional regulatory andeconomic burden of designating criticalhabitat. These include the need foradditional consultation with the Serviceand the need for additional surveys andinformation gathering to complete theseconsultations. HCP applicants have alsostated that they are concerned that thirdparties may challenge HCPs on the basisthat they result in adverse modificationor destruction of critical habitat, shouldcritical habitat be designated within theHCP boundaries.

The benefits of excluding HCPsinclude relieving landowners,communities and counties of anyadditional minor regulatory review thatmight be imposed by critical habitat.Many HCPs, particularly large regionalHCPs, take many years to develop and,upon completion, become regionalconservation plans that are consistentwith the recovery of covered species.Many of these regional plans benefitmany species, both listed and unlisted.Imposing an additional regulatoryreview after HCP completion mayjeopardize conservation efforts andpartnerships in many areas and could beviewed as a disincentive to thosedeveloping HCPs. Excluding HCPsprovides us with an opportunity tostreamline regulatory compliance andconfirms regulatory assurances for HCPparticipants.

A related benefit of excluding HCPs isthat it would encourage the continueddevelopment of partnerships with HCPparticipants, including States, localgovernments, conservationorganizations, and private landowners,that together can implementconservation actions we would beunable to accomplish alone. Byexcluding areas covered by HCPs fromcritical habitat designation, we preservethese partnerships, and, we believe, set

the stage for more effective conservationactions in the future.

In general, we believe the benefits ofcritical habitat designation to be smallin areas covered by approved HCPs. Wealso believe that the benefits ofexcluding HCPs from designation aresignificant. Weighing the small benefitsof inclusion against the benefits ofexclusion, including the benefits ofrelieving property owners of anadditional layer of approvals andregulation, together with theencouragement of conservationpartnerships, would generally result inHCPs being excluded from criticalhabitat designation under Section4(b)(2) of the Act.

Not all HCPs are alike with regard tospecies coverage and design. Within thisgeneral analytical framework, we needto individually evaluate completed andlegally operative HCPs in the range ofthe Great Lakes breeding population ofthe piping plover to determine whetherthe benefits of excluding theseparticular areas outweigh the benefits ofincluding them.

Presently, one approved HCP existsfor the piping plover in the Great Lakesregion. The Magic Carpet WoodsAssociation HCP covers approximately792 meters (2,600 feet) of shorelinewithin the proposed Cathead Baycritical habitat unit in Leelanau County,Michigan. This plan addresses thepiping plover as a covered species andprovides conservation management andprotection for the species. We evaluatedthis plan and determined that theconservation management measures andprotection afforded the piping ploverare sufficient to assure its conservationon the involved lands. Consequently,we have determined that the benefits ofexcluding this area outweigh thebenefits of inclusion, and have excludedthe area covered by the HCP from thefixed critical habitat designation.

In the event that future HCPs coveringthe Great Lakes breeding population ofthe piping plover are developed withinthe boundaries of designated criticalhabitat, we will work with applicants toensure that the HCPs provide forprotection and management of habitatareas essential for the conservation ofthe piping plover by either directingdevelopment and habitat modificationto nonessential areas or appropriatelymodifying activities within essentialhabitat areas so that such activities willnot adversely modify the primaryconstituent elements. The HCPdevelopment process provides anopportunity for more intensive datacollection and analysis regarding theuse of particular habitat areas by thepiping plover. The process also enables



us to conduct detailed evaluations of theimportance of such lands to the longterm survival of the species.

We will provide technical assistanceand work closely with applicantsthroughout the development of futureHCPs to identify lands essential for thelong-term conservation of the pipingplover and appropriate management forthose lands. The take minimization andmitigation measures provided underthese HCPs are expected to protect theessential habitat lands designated ascritical habitat in this rule. If an HCPthat addresses the piping plover as acovered species is ultimately approved,the Service will reassess the criticalhabitat boundaries in light of the HCP.The Service will seek to undertake thisreview when the HCP is approved, butfunding constraints may influence thetiming of such a review.

Should additional informationbecome available that changes ouranalysis of the benefits of excluding anyof these (or other) areas compared to thebenefits of including them in the criticalhabitat designation, we may revise thisfinal designation accordingly.

Similarly, if new informationindicates any of these areas should notbe included in the critical habitatdesignation because they no longer meetthe definition of critical habitat, we mayrevise this final critical habitatdesignation. If, consistent with availablefunding and program priorities, we electto revise this designation, we will do sothrough a subsequent rulemaking.

If you have questions regardingwhether specific activities willconstitute adverse modification ofcritical habitat, or requests for copies ofthe regulations on listed wildlife andinquiries about prohibitions and permitscontact the U.S. Fish and WildlifeService (see addresses section).

Summary of Comments andRecommendations

In the July 6, 2000, proposed rule (65FR 41812), we requested all interestedparties to submit comments on thespecifics of the proposal includinginformation, policy, treatments of HCPs,and proposed critical habitat boundariesas provided in the proposed rule. Thefirst comment period closed onSeptember 5, 2000. The comment periodwas reopened for 30 days, fromSeptember 19 to October 20, 2000 (65FR 56530), to allow for additionalcomments on the proposed rule andcomments on the draft economicanalysis of the proposed critical habitat.Since our intention was to reopen thecomment period for 60 days, wepublished a correction on September 28,2000 (65 FR 58258), correcting the

closing date of the reopened commentperiod to November 20, 2000.Comments received from July 6 toNovember 20, 2000, were entered intothe administrative record.

We contacted all appropriate Stateand Federal agencies, Tribes, Countygovernments, elected officials, and otherinterested parties and invited them tocomment. In addition, we invited publiccomments through the publication ofnotices in newspapers in Minnesota,Wisconsin, Michigan, Illinois, Indiana,Ohio, Pennsylvania, and New York. Inthese notices and the proposed rule, weannounced the dates and times of sevenpublic hearings to be held on theproposed rule. Their dates and locationsare specified above in the section‘‘Previous Federal Actions’’. Transcriptsof these hearings are available forinspection (see addresses section). Weposted copies of the proposed rule anddraft economic analysis on our internetsite (http://midwest.fws.gov/).

We requested three ornithologists andconservation biologists, who havefamiliarity with the piping plover andits habitat requirements, to peer reviewthe proposed critical habitatdesignation. All three responded by theclose of the comment period. Theyprovided valuable information about thebiology, status, and historical range ofthe species, and suggested removingsome areas from the critical habitatdesignation that no longer meet thecriteria of piping plover critical habitatand provided data on other areas thatmay deserve critical habitat designationat a later date. These comments areaddressed in this section, and relevantdata provided by the reviewers havebeen incorporated throughout the rule.

We received a total of 140 written and36 oral comments during the 2 publiccomment periods. Several peoplesubmitted comments more than once. Intotal, oral and written comments werereceived from 7 Federal agencies, 14State agencies, 5 Tribal representatives,3 elected officials, 10 local governments,31 private organizations, and 97 privateindividuals. Comments were receivedfrom residents in 13 States, withMichigan sources submitting the most ofany one State. All comments receivedwere reviewed for substantive issuesand new data regarding critical habitatand the biology and status of the GreatLakes breeding population of the pipingplover, and economic information. Weaddress all relevant comments receivedduring the comment periods and publichearing testimonies in the followingsummary of issues. Comments of asimilar nature are grouped into a singleissue. Comments that we incorporatedinto this final rule are discussed in the

‘‘Summary of Changes from ProposedRule’’ section of this document.

Issue 1: Biological Justification andMethodology

The following comments andresponses involve issues related to thebiological basis for the designation.

(1A) Comment: The broad scale of theproposed critical habitat includes areasthat do not contain the primaryconstituent elements for the Great Lakespiping plover.

Response: We recognize that not allparcels of land within designatedcritical habitat units will contain thehabitat components essential to pipingplover conservation. We are required todesignate critical habitat based on thebest available information and todescribe critical habitat (50 CFR424.12(c)) with specific limits usingreference points and specific definableboundaries. In preparation of the finaldetermination, we used informationgathered during the public commentperiod to more accurately define thewritten critical habitat boundaries.Despite our efforts to exclude areas thatdo not contain the primary constituentelements for the piping plover fromcritical habitat unit boundaries, it is notpracticable to develop unit boundariesand provide maps and legal descriptionsthat exclude all developed areas such astowns, housing developments, or otherdeveloped lands unlikely to provide forthe piping plover. Because of the timeconstraints imposed by the Court, andthe absence of detailed GeographicInformation System (GIS) coverage wedefined the critical habitat unitboundaries as specifically as practicablebut, due to the mapping scale, someareas not essential to the conservation ofthe piping plover were included withinthe boundaries of proposed criticalhabitat. However, developed areas suchas buildings, marinas, paved areas, boatramps, piers, bridges, lighthouses, andsimilar human-made structures are notbeing designated as critical habitat.

(1B) Comment: Designating criticalhabitat for the piping plover will resultin such high public animosity that thedesignation will cause more harm to thespecies than benefit.

Response: Public support is a vitalasset in the protection of endangeredspecies and their habitat, but, by law wemust designate essential areas as criticalhabitat even if it will cause publicbacklash due to misconceptions aboutits impacts. In an effort to clear upmisunderstandings about critical habitatand to increase public support forpiping plovers, we are increasing oureducation and outreach programs.



(1C) Comment: One personcommented that there is a lack of datato support the proposed measures andno data to support that designatingcritical habitat will result in anincreased piping plover population.

Response: In accordance with section3(5)(A)(i) of the Act and regulations at50 CFR 424.12, in determining whichareas to designate as critical habitat, weare basing this critical habitatdetermination on the best scientific andcommercial data available at the time ofdesignation. The designation indicatesthe areas that we believe are essential tothe conservation of the species.Designation of critical habitat is onlyone tool to use towards the recovery ofthe piping plover, and we will continueto work with other Federal agencies,State and local agencies, Tribes, thescientific community, local landowners,and the public to eliminate and reducethe range of threats that endanger thisspecies.

(1D) Comment: Inland lakes arementioned in the 1988 Recovery Plan aspotential breeding habitat around theGreat Lakes. Were smaller, inland lakesconsidered for designation?

Response: Inland lake records ofpiping plovers in the Great Lakes arevery few and from long ago. Cottrille(1957) cites four records of pipingplovers at three inland locations inMichigan between 1938 and 1954, butno such sightings have been made inrecent years. Additionally, there are noinland lakes in the Great Lakes area thatare presently known to contain theprimary constituent elements for thispopulation of piping plovers.

(1E) Comment: There is no mention ofmigratory sites or habitat needs duringmigration.

Response: Areas used by pipingplovers on migratory routes are likelyvery important for survival to the nextbreeding season. Extraordinarily little isknown, however, about important stop-over sites and habitat needs of thepiping plover during migration. Becauseso little is known about where essentialmigratory stop-over sites are located, wedid not designate migratory habitat inthis rule. Important migratory sites maybe added to the critical habitatdesignation (by following the completeproposal process and soliciting publiccomments) when we have a betterunderstanding of migratory habitatrequirements.

(1F) Comment: Why is unoccupiedhabitat being designated as criticalhabitat?

Response: The inclusion ofunoccupied areas in this critical habitatdesignation is in accordance withsection 3(5)(A) of the Act, which

provides that areas outside thegeographic area currently occupied bythe species may meet the definition ofcritical habitat upon a determinationthat they are essential for theconservation of the species. Ourregulations also provide for thedesignation of areas outside thegeographical area currently occupied ifwe find that a designation limited to itspresent range would be inadequate toensure the conservation of the species(50 CFR 424.12(e)).

In 2000, there were about 30 breedingpairs of piping plovers in the GreatLakes area, all of which occur inMichigan (Stucker et al. 2000). TheGreat Lakes and Northern Great PlainsPiping Plover Recovery Plan (USFWS1988b) establishes a recovery goal of 150breeding pairs in the Great Lakeswatershed. This number is considered aminimum for the recovery of the speciesand eventual removal from theprotections of Act. Of these 150breeding pairs, at least 100 are to be inMichigan and at least 50 in other GreatLakes States. In order to achieve thisrecovery goal, additional habitat areasare needed beyond those currentlyoccupied by the species. We havedesignated currently unoccupied areasas critical habitat on the basis ofhistorical piping plover occurrences andthe existence of most or all of theprimary constituent elements at othersites lacking historical occurrences.Additionally, all of the currentlyunoccupied areas designated as criticalhabitat are included as essential habitatin the draft revised Recovery Plan(USFWS 1994).

Issue 2: Policy and RegulationsThe following comments and

responses involve issues related topublic involvement in the designationprocess and compliance with the Actand other laws, regulations, andpolicies.

(2A) Comment: Several commenterswere supportive of the policy that landscovered by approved HCPs that provideincidental take authorization for thepiping plover should be excluded fromcritical habitat. Other commentersbelieve that critical habitat designationshould occur within the boundaries ofsuch HCPs.

Response: We recognize that criticalhabitat is only one of many conservationtools for federally listed species. HCPsare one of the most important tools forreconciling land use with theconservation of listed species on non-Federal lands. Section 4(b)(2) of the Actallows us to exclude areas from criticalhabitat designation where the benefits ofexclusion outweigh the benefits of

designation, provided the exclusion willnot result in the extinction of thespecies. We believe that in mostinstances the benefits of excluding HCPsfrom critical habitat designations willoutweigh the benefits of including them.For this designation, we find that thebenefits of exclusion outweigh thebenefits of designation for the onelegally operative HCP issued for thepiping plover in the Great Lakes.

We anticipate that future HCPs in therange of the Great Lakes breedingpopulation of piping plovers willinclude it as a covered species andprovide for its long term conservation.We expect that HCPs undertaken bylocal jurisdictions (e.g. counties, cities)and other parties will identify, protect,and provide appropriate managementfor those specific lands within theboundaries of the plans that areessential for the long term conservationof the species. Section 10(a)(1)(B) of theAct sates that HCPs must meet issuancecriteria, including minimizing andmitigating any take of the listed speciescovered by the permit to the extentpracticable, and that the taking must notappreciably reduce the likelihood of thesurvival and recovery of the species inthe wild. We fully expect that our futureanalyses of HCPs and section 10(a)(1)(B)permits under section 7 will show thatcovered activities carried out inaccordance with the provisions of theHCP and section 10(a)(1)(B) permits willnot result in the destruction or adversemodification of critical habitatdesignated for the piping plover.

In the event that future HCPs coveringthe Great Lakes breeding population ofthe piping plover are developed withinthe boundaries of designated criticalhabitat, we will work with applicants toensure that the HCPs provide forprotection and management of habitatareas essential for the conservation ofthe piping plover by either directingdevelopment and habitat modificationto nonessential areas or appropriatelymodifying activities within essentialhabitat areas so that such activities willnot adversely modify the primaryconstituent elements. The HCPdevelopment process provides anopportunity for more intensive datacollection and analysis regarding theuse of particular habitat areas by thepiping plover. We will providetechnical assistance and work closelywith applicants throughout thedevelopment of future HCPs to identifylands essential for the long termconservation of the species andappropriate management of those lands.If the piping plover is a covered speciesunder future HCPs, the plans shouldprovide for the long term conservation



of the species. The take minimizationand mitigation measures providedunder these HCPs are expected toadequately protect the essential habitatlands designated as critical habitat inthis rule, such that the value of theselands for the survival and recovery ofthe Great Lakes breeding population ofthe piping plover is not appreciablydiminished through direct or indirectalterations. If an HCP that addresses thepiping plover as a covered species isultimately approved, the Service willreassess the relevant critical habitatboundaries in light of the protection andmanagement provided by the HCP. TheService will seek to undertake thisreview when the HCP is approved, butfunding constraints may influence thetiming of such a review. However, anHCP can proceed without a concurrentamendment to the critical habitatdesignation should all involved partiesagree.

(2B) Comment: Specific lands shouldbe excluded using the exemptionafforded pursuant to 4(b)(2) of the Act.The biological benefits of critical habitatare outweighed by the benefits ofexclusion.

Response: Section 4(b)(2) of the Actand 50 CFR 424.19 require us toconsider the economic impact, and anyother relevant impact, of specifying anyparticular area as critical habitat. Wemay exclude any area from criticalhabitat if we determine that the benefitsof exclusion outweigh the benefits ofdesignating the area as critical habitat,unless that exclusion will lead toextinction of the species. As discussedin this final rule, we have determinedthat no significant adverse economiceffects will result from this criticalhabitat designation. Consequently, noneof the proposed lands have beenexcluded from the designation based oneconomic impacts. As discussed in theresponse to the comment above, wehave excluded the one legally operativeHCP from the designation pursuant tosection 4(b)(2) of the Act based on otherrelevant impacts.

(2C) Comment: We received threewritten requests to extend the commentperiod for the proposed designation anddraft economic analysis.

Our Response: Following thepublication of the proposed criticalhabitat designation on July 6, 2000, weopened a 60 day public comment periodwhich closed on September 5, 2000,held seven public hearings during July,and conducted outreach notifyingelected officials, local jurisdictions,interest groups, and property owners.We conducted much of this outreachthrough legal notices in regionalnewspapers, telephone calls, letters and

news releases mailed to affected electedofficials, local jurisdictions, and interestgroups, and publication of the proposeddetermination and associated materialson our internet site. We published adocument in the Federal Register onSeptember 19, 2000, announcing theavailability of the draft economicanalysis and reopening the commentperiod until October 19, 2000. OnSeptember 28, 2000, in order to fulfillour intention that the comment periodbe reopened for 60 days, we publisheda document correcting the closing dateof the comment period, to November 20,2000. Because of the court-ordered tenmonth time frame for completing thedesignation, we were not able to extendor open an additional public commentperiod beyond the four and one-halfmonths we provided.

(2D) Comment: We received tworequests to hold additional publichearings on the proposed designation.

Our Response: We are required tohold one public hearing on a proposedaction, if it is requested. Due to the shorttime between proposal and the court-ordered deadline for publication of thefinal rule, we chose to announce publichearings at the time the proposal waspublished. We published notification ofthe hearings in the Federal Register aspart of the proposal, published legalnotices in regional newspapers, postedinformation on our internet site, andissued news releases about the hearings.During the month of July, 2000, we heldseven public hearings throughout theGreat Lakes States affected by theproposed critical habitat designation.Additional public hearings wererequested in locations near one of theseven hearings. Because of the court-ordered deadline and the broadcoverage of the original public hearings,we chose not to hold additional publichearings.

(2E) Comment: One commentersuggested that we post the hearingtranscripts and all of the commentsreceived during the public commentperiod on the internet.

Response: We have not posted copiesof hearing transcripts and the commentsreceived on a proposed action on theinternet in the past. The volume ofpublic comments received on someproposals is very large, thus it is notpracticable to post them on the internetat this time. The hearing transcripts andcomments on the proposal to designatecritical habitat for the Great Lakesbreeding population of the pipingplover are available during normalbusiness hours at the U.S. Fish andWildlife Service offices at: BishopHenry Whipple Building, 1 FederalDrive, Fort Snelling, Minnesota 55111;

and 2651 Coolidge Road, Suite 101, EastLansing, Michigan 48823. Call ourEcological Services office in FortSnelling at 612–713–5350 for moreinformation on how to view thetranscripts and comments.

(2F) Comment: Alternatives todesignating critical habitat were notconsidered.

Response: By law, according tosection 4(a)(3) of the Act, we arerequired to designate critical habitat ‘‘tothe maximum extent prudent’’ for alllisted species. Furthermore, in the caseof the piping plover, we were orderedby the United States District Court forthe District of Columbia to designatecritical habitat for the Great Lakesbreeding population of this species.Other conservation actions areimportant to the recovery of the pipingplover and will be carried out as part ofthe recovery process, but they are notlegal alternatives to designating criticalhabitat.

(2G) Comment: A few commentersrecommended that we postpone issuinga final determination until a morespecific and defensible critical habitatproposal can be written and an accurateand quantitative economic analysis beconducted.

Response: We are required to use thebest available information indesignating critical habitat. We areunder a court order to complete thedesignation of critical habitat for theGreat Lakes breeding population of thepiping plover by April 30, 2001. We didsolicit new biological data and publicparticipation during the commentperiods on the proposed rule and drafteconomic analysis. These commentshave been taken into consideration inthe development of the final economicanalysis and this final determination.Furthermore, we will continue tomonitor and collect new informationand may revise the critical habitatdesignation in the future if newinformation indicates a change isneeded, given our available funding andpriorities.

(2H) Comment: The maps presentedin the proposed rule are difficult tointerpret and therefore will be difficultto use in planning efforts.

Response: The maps published in theFederal Register are provided forreference purposes to guide Federalagencies and other interested parties inidentifying the general boundarieswithin which the critical habitat islocated. While the verbal descriptions ofeach critical habitat unit are meant toprovide a more precise reference foractual boundaries, we recognize thevalue to the public and resourcemanagers of more detailed maps. Due to



the time constraints of the court ordereddeadline and our limited GeographicInformation System (GIS) capabilities,we have not been able to produce moredetailed maps to match our verbaldescriptions. We have made it a priorityto complete more detailed GIS maps ofthe designated areas and make thesemaps available for public use.

Issue 3: Economic and Other RelevantImpacts

(3A) Comment: Designation of criticalhabitat will cause private propertyvalues to decline and will negativelyaffect businesses.

Response: The economic analysisindicates that designation of criticalhabitat for the Great Lakes breedingpopulation on the piping plover will nothave a significant economic impact. Theeconomic analysis does acknowledgethat the designation of critical habitatmay have some effect on privateproperty values. We believe that thisshort-term effect would occur frommarket uncertainty and publicmisperception of the impacts of thecritical habitat designation on privateland use. We also believe that this short-term effect on property values woulddiminish over time as the uncertaintyand misperceptions are dispelled. Wedid not find supporting evidence duringthe preparation of the economic analysisto estimate or document this potentialshort-term effect on property values.The economic analysis determined thatthere will be an insignificant impact tobusinesses.

(3B) Comment: Several commentersexpressed concern about a quickresponse to emergency maintenanceactivities, specifically emergencyerosion control and environmentalclean-up, and questioned whetheremergency activities are exempt fromconsultation under section 7 of the Act.

Response: Emergency activities arenot exempt from consultation undersection 7 of the Act. However, theregulations at 50 CFR 402.05 allow forinformal consultation where emergencycircumstances mandate the need toconsult in an expedited manner. Formalconsultation must be initiated as soon aspossible after the emergency is undercontrol. In addition, programmaticconsultations can be conducted prior toan emergency to address responseactivities which can be reasonablyanticipated.

(3C) Comment: Some commentersvoiced concern that they were notdirectly contacted for their opinions onthe economic impacts of critical habitatdesignations or why their specific landparcels were not addressed.

Response: We did not feel it wasnecessary to contact every potentialstakeholder in order for us to develop adraft economic analysis. Especially inlight of the limited resources and timeavailable to us, we believe that we wereadequately able to understand the issuesof concern to local communities basedon public comments submitted on theproposed rule, on transcripts frompublic hearings, and from detaileddiscussions among our staff and withrepresentatives from other Federal,State, Tribal, and local governmentagencies, as well as some landowners.When the draft economic analysis wascompleted, we reopened the commentperiod to request public comment, inparticular on the adequacy of theeconomic analysis.

(3D) Comment: Several commentersexpressed concern about the impactcritical habitat will have on futuredevelopment projects and themaintenance of existing structures.

Response: The designation of criticalhabitat does not necessarily restrictfurther development. Within criticalhabitat boundaries, Federal agenciesmust make special efforts to protect theimportant characteristics of these areas,therefore, if a proposed developmentproject with a Federal nexus were toaffect critical habitat of the pipingplover, consultation under section 7 ofthe Act would be required. Because theGreat Lakes population of the pipingplover is listed as an endangered speciesunder the Act, section 7 consultationswould be required for developmentprojects in areas with piping plovers,even if these areas are not designatedcritical habitat.

Existing human-made structures, suchas buildings, parking lots, and boatramps are not critical habitat, therefore,many maintenance projects on suchstructures will not affect critical habitat.Only those projects with a Federalnexus that modify the primaryconstituent elements to such a degree asto cause the habitat to be unsuitable forbreeding piping plovers will be affected.

We understand the importance ofbeach nourishment and dredging formaintaining beach areas and harbors inthe Great Lakes. Additionally, theseactivities, if conducted in anappropriate manner, may be beneficialto nesting piping plovers. Theseactivities, however, do alter the habitat,and thus will likely requireconsultation. For these types of ongoingactivities, programmatic consultationscan be conducted to reduce the timenecessary for annual consultations.

In those cases where consultation isrequired, we will work cooperativelywith Federal agencies to see that

necessary work can proceed in concertwith the requirements of the Act toconserve the piping plover and itshabitat. In cases where critical habitathas been designated for areas occupiedby the piping plover, consultationswould likely have been required,regardless of the designation of criticalhabitat.

(3E) Comment: A number ofcommenters expressed concern aboutthe impact on recreational activities,tourism, and the possibility of restrictedbeach access within designated criticalhabitat.

Response: Most recreational activitieson the majority of beaches withincritical habitat will not be impacted bycritical habitat designation. Since non-Federal activities are not affected bycritical habitat designation, beach usewould only be affected if a Federalagency funds, authorizes, or carries outan action that will result in a level ofhuman use that precludes successfulpiping plover breeding. In those cases,we will work with the Federal agencyinvolved to protect potential breedinghabitat while having as minimal aneffect as possible on people’s enjoymentof the areas. On non-Federal lands,recreational beach activities such aswalking, jogging, sunning, swimming,and picnicking will not be affected bythe critical habitat designation.

The recovery of piping plovers in theGreat Lakes area can be consistent withrecreational and other economicactivities. According to the 1996National Survey of Fishing, Hunting,and Wildlife Associated Recreation,wildlife observation is one of the fastestgrowing outdoor activities. Thepresence of piping plovers onMichigan’s beaches should continue toattract bird watchers who are excited toview this rare species in its naturalhabitat.

Issue 4: Site Specific IssuesThe following comments and

responses involve issues related to theinclusion or exclusion of specific areas,or our methods for selecting appropriateareas for designation as critical habitat.

(4A) Comment: Several commentspointed out errors in mileages,locations, or descriptions of criticalhabitat units in the proposed rule.

Response: Corrections have beenmade in the final rule to reflect thesecomments, where appropriate.

(4B) Comment: A number ofcommenters identified specific areasthat they thought should not bedesignated as critical habitat.

Response: Where site specificdocumentation was submitted to usproviding a rationale as to why an area



should not be designated as criticalhabitat, we evaluated that informationin accordance with the definition ofcritical habitat pursuant to section 3 ofthe Act and made a determination as towhether modifications to the proposalwere appropriate. Based on thecomments we received, we excludedlands from the final designation that wedetermined to be nonessential to theconservation of the piping plover (i.e.,areas that did not contain the primaryconstituent elements) or that werelocated within an approved HCP for thepiping plover (refer to the ‘‘Summary ofChanges from Proposed Rule’’ sectionfor specific areas that were excluded).None of the proposed lands have beenexcluded from the final designationbased on economic impacts. Weincluded in the final designation thoselands that we still consider essential tothe recovery of the Great Lakes breedingpopulation of piping plovers.

(4C) Comment: Multiple commentersrecommended adding specific lands tocritical habitat or further investigatingadditional areas for suitable habitat.

Response: During the Federal rule-making process for designating criticalhabitat, we may, based uponinformation received during the publiccomment period, remove proposedcritical habitat lands from a finaldesignation and refine proposedboundaries. However, according tosection 4(b)(4) of the Act, we may notadd new critical habitat units withoutfirst proposing these lands in theFederal Register and providing a publiccomment period. Therefore, potentialcritical habitat units that were notincluded in the proposal for the GreatLakes population of the piping ploverare not designated as critical habitat inthis final determination.

Some of the lands recommended foraddition to critical habitat were notincluded in the proposal because weearlier concluded that these lands werenot essential for the conservation of thespecies or did not meet the definition ofpiping plover critical habitat. Afterreassessing the requested additionallands on South Fox Island in Michigan,we continue to believe that these lands,at this time, do not meet the definitionof critical habitat because they do notcontain the primary constituentelements required by piping plovers.

Several of the other requested siteswere excluded from the proposeddesignation because information oncurrent habitat suitability was notavailable. These sites will requirefurther investigation to determinewhether they are essential to theconservation of the species. Datagathered following the publication of

the proposed rule indicates that some ofthe requested lands contain suitablenesting habitat and may be essential tothe conservation of the species. Forexample, we received a comment fromthe National Park Service requestingthat a portion of Sleeping Bear DunesNational Lakeshore on South ManitouIsland, Michigan be included in thedesignation because it is an importantpiping plover foraging area. We willcontinue to investigate potential pipingplover critical habitat and may revisethe critical habitat designation in thefuture if new information supports achange, and as available funding andother priorities allow. The data onadditional sites that were provided to usduring the comment period will beimportant in any future revisions todesignated critical habitat.

Issue 5: Other Relevant Issues(5A) Comment: Two people

commented that we should alsodesignate critical habitat for pipingplovers that breed along the northAtlantic coast.

Response: We are currently requiredto complete a significant number oflisting-related actions, pursuant to courtorders and judicially approvedsettlement agreements. Complying withthese court orders and settlementagreements will require the Service tospend nearly all of its listing and criticalhabitat funding for fiscal year 2001, anda substantial amount in fiscal year 2002.We are currently working to prioritizeour critical habitat workload within theESA listing budget allocated byCongress. The priority for designatingcritical habitat for the Atlantic Coastbreeding population of piping ploversrelative to other species and pendinglitigation has not yet been determined.

(5B) Comment: Piping plovers thatnest at Lake of the Woods, Minnesotarepresent an important genetic linkbetween the Great Lakes and GreatPlains populations. Piping plovers atLake of the Woods should be consideredpart of the endangered Great Lakesbreeding population instead of part ofthe threatened Great Plains breedingpopulation.

Response: We agree that the pipingplovers that nest at Lake of the Woods,Minnesota represent an important linkbetween the Great Lakes and GreatPlains populations. Piping plovers thatnest at Lake of the Woods areconsidered part of the Great Plainspopulation because current datasuggested that they are more closelyassociated with plovers in nearbyManitoba, Canada (Haig and Oring,1988). Proposed critical habitat forpiping plovers at Lake of the Woods will

be considered in the proposal todesignate critical habitat for the GreatPlains piping plover, to be published onor before May 31, 2001.

(5C) Comment: Many commenterssuggested additional protection forpiping plovers, beyond the designationof critical habitat.

Response: Other conservation actions,besides the designation of criticalhabitat, are crucial to the recovery andsurvival of the piping plover. Theseother actions, including publiceducation, predator control, lawenforcement, and monitoring areaddressed in the 1988 and 1994Recovery Plans for Piping PloversBreeding in the Great Lakes andNorthern Great Plains. We are currentlyrevising these recovery plans and thepublic will be provided the opportunityto comment on the draft revised plan.

(5D) Comment: One commenter statedthat the effect of critical habitat shouldinclude situations that are not funded,authorized, or carried out by a Federalagency.

Response: Once designated, criticalhabitat has only one regulatory impact:under section 7(a)(2) of the Act, Federalagencies must, in consultation with theService, ensure that any action theyauthorize, fund, or carry out is not likelyto result in the destruction or adversemodification of critical habitat. By law,the effect of critical habitat does notextend to situations that do not involvea Federal nexus.

Summary of Changes From ProposedRule

Based on a review of publiccomments received on the proposeddetermination of critical habitat for theGreat Lakes breeding population of thepiping plover, we re-evaluated ourproposed designation of critical habitatfor the piping plover. This re-evaluationresulted in the following changes thatare reflected in this final determination.

Removal of Proposed Units

Based on comments received on theproposal and site visits following thepublication of the proposal, we removedthree sites—Pensaukee Harbor andPeshtigo Point, Wisconsin and Erie Pier/Hearding Island, Minnesota— from thisfinal critical habitat designation. Wedetermined that these sites do not have,and are unlikely to develop, the featuresand habitat characteristics that arenecessary to sustain the species andthus we no longer consider these areasto be essential for the conservation ofthe species.



Change in Extent of Inland Boundary

The proposed 1 km (0.6 mi.) inlandboundary was intended to incorporatedune blow-out areas and extensivedune-wetland systems. These inlandareas provide important foraginghabitat, as well as cobble pans betweenthe dunes where plovers occasionallynest. Data gathered during the publiccomment period indicate that themajority of the dune systems withindesignated critical habitat do not extendfurther than 500 m (1,640 ft) inlandfrom the normal high water line.Therefore, in this final determination,the inland boundary for all criticalhabitat units was changed from theproposed 1 km (0.6 mi) to 500 m (1,640ft) inland from normal high water line.

Errors in Unit Descriptions

Several comments pointed outcorrections or clarifications to unitdescriptions. We applied this correctedinformation to the final rule andadjusted the verbal descriptions of 10units; White Fish Point to Grand Marais(MI–1), Seven Mile Point to ThornswiftNature Preserve (MI–5), Petoskey SatePark (MI–6), Greenes Bay-Beaver Island(MI–10), High Island (MI–11), South FoxIsland (MI–13), Esch Road to SutterRoad and Point Betsie (MI–16),Lighthouse Point to Cordwood Point(MI–20), Thompson’s Harbor (MI–22),and Illinois Beach State Park/WaukeganBeach (IL–1). None of the changesresulted in any significant alteration ofthe units.

Refined Unit Boundaries

The boundaries of several of the unitswere refined to better reflect the areasthat are essential to the conservation ofthe Great Lakes breeding population ofthe piping plover. The southeasternboundary of the unit at Long Island-Chequamegon Point, Wisconsin (WI–2)was moved northwestwardapproximately 5 km (3.1 mi) to the baseof Chequamegon Point at the southernboundary of T48N R3W, section 1. Thischange was the result of discussionswith the Bad River Band of LakeSuperior Chippewa Indians and theWisconsin Department of NaturalResources. The revised boundaryexcludes areas that do not have therequired habitat features for nestingpiping plovers and, therefore, are notessential to the conservation of thespecies. Additionally, the description ofthis unit given in the proposal, althoughinclusive of the entire peninsula, onlycalculated the length of the peninsula,not the perimeter shoreline of thepeninsula. The calculation of the lengthof this unit as presented in this final

determination includes the entireperimeter of the peninsula, andtherefore appears to be larger, when inactuality it has been reduced byapproximately 5 km (3.1 mi). Theproposal states that the unit was 18 km(11.2 mi) long when, consistent with theverbal description and calculating bothsides of the peninsula, it was actually30.3 km (18.8 mi) long. Therefore, thisunit is being reduced from 30.3 km (18.8mi) to 25.3 km (15.7 mi) in this finaldetermination.

The western boundary of the IndianaDunes (IN–1) unit was movedapproximately 549 meters (1,800 feet)eastward to the western boundary ofIndiana Dunes National Lakeshore. Thisrevised boundary excludes lands ownedby the Northern Indiana Public ServiceCompany (NIPSCO) that do not have therequired habitat features for nestingpiping plovers and, therefore, are notessential to the conservation of thespecies.

The southeastern boundary of thePennsylvania unit (PA–1) at Gull PointNatural Area/Presque Isle State Parkwas moved approximately 2.3 km (1.4mi) north. The refined boundaryexcludes the public beach area that doesnot have the required habitat featuresfor nesting piping plovers and,therefore, is not essential to theconservation of the species.Additionally, the length of this unit wasmiscalculated in the proposed rule. Theproposal states that the unit was 1.5 km(0.9 mi) long when, consistent with theverbal description, it was actually 8.3km (5.1 mi) long. Therefore, this unit isbeing reduced from 8.3 km (5.1 mi) to6.0 km (3.7 mi) in this finaldetermination.

Exclusions Under Section 4(b)(2) of theAct

In our proposed determination ofcritical habitat for the Great Lakespopulation of the piping plover, weasked for public comment on theappropriate relationship betweenapproved HCPs and designated criticalhabitat. After considering the commentswe received, we have chosen to evaluateareas covered by an approved HCP forthe piping plover for exclusion underthe benefits-balancing test found insection 4(b)(2) of the Act. This sectionallows us to exclude areas upondetermination that the benefits ofexcluding the area outweigh the benefitsof including the are in the criticalhabitat designation, provided theexclusion would not result in theextinction of the species. Ourapplication of this balancing test tolands covered by HCPs for the piping

plover is described in detail in thepreamble.

Presently, one approved HCP existsfor the piping plover in the Great Lakesregion. The Magic Carpet WoodsAssociation HCP covers approximately792 m (2,600 ft) of shoreline within theproposed Cathead Bay critical habitatunit in Leelanau County, Michigan. Thisplan addresses the piping plover as acovered species and providesconservation management andprotection for the species. We evaluatedthis plan and determined that theconservation management measures andprotection afforded to the piping ploverare sufficient to assure its conservationon the involved lands. Among otherfeatures, the plan requires residences beset back from the beach, biologicalmonitoring, the presence of a pipingplover steward, containing garbage, andrestraining pets. Therefore, we haveexcluded the lands covered by theMagic Carpet Woods Association HCPfrom the final determination of criticalhabitat for the Great Lakes breedingpopulation of the piping plover.

Economic AnalysisSection 4(b)(2) of the Act requires us

to designate critical habitat on the basisof the best scientific and commercialdata available and to consider theeconomic and other relevant impacts ofdesignating a particular area as criticalhabitat. We may exclude areas fromcritical habitat upon a determinationthat the benefits of such exclusionsoutweigh the benefits of specifying suchareas as critical habitat. We cannotexclude such areas from critical habitatwhen such exclusion will result in theextinction of the species.

The economic analysis must examinethe incremental economic effects of thecritical habitat designation above thoseeffects of the listing. Economic effectsare measured as changes in nationalincome, regional jobs, and householdincome. A draft analysis of theeconomic effects of the critical habitatdesignation for the Great Lakes breedingpopulation of the piping plover wasprepared (Industrial Economics,Incorporated, 2000) and made availablefor public review (September 19 toNovember 20, 2000; 65 FR 56530 and 65FR 58258). We also completed a finaleconomic analysis that incorporatedpublic comments, information gatheredsince the draft analysis, and changes tothe critical habitat designation. Theanalysis found that there would be aneconomic impact from the designationthat would vary on a situational level,and that most of the impact would comein the form of new section 7consultations in unoccupied habitat



units. In the economic analysis, weestimate that, over the next ten years,the total costs by landowners associatedwith consultation and technicalassistance attributable to thisrulemaking will range between $314,200and $592,000. Our economic analysisalso recognizes that there may be costsfrom delays associated with reinitiatingpreviously completed consultationsafter the critical habitat designation ismade final. There may also be economiceffects due to the reaction of the realestate market to critical habitatdesignation, as real estate values may belowered due to a perceived increase inthe regulatory burden. However, webelieve this impact will be minor andshort-term. We have determined thatthese economic impacts do not warrantexcluding any areas from thedesignation.

A copy of the final economic analysisis included in our administrative record

and may be obtained by contacting ouroffice (see ADDRESSES section).

Required Determinations

Regulatory Planning and ReviewThis document has been designated as

significant and reviewed by the Office ofManagement and Budget (OMB), inaccordance with Executive Order 12866.OMB makes the final determination ofsignificance under Executive Order12866.

(a) This rule will not have an annualeconomic effect of $100 million or moreor adversely affect an economic sector,productivity, jobs, the environment, orother units of government. The GreatLakes breeding population of pipingplover was listed as an endangeredspecies in 1985. In fiscal years 1992through 2000, we conducted only oneformal section 7 consultation with otherFederal agencies to ensure that theiractions would not jeopardize thecontinued existence of the piping plover

in the Great Lakes watershed. We havealso issued one section 10(a)(1)(B)incidental take permit for an entity thathas prepared an HCP involving pipingplover habitat.

Approximately 236 km (146 mi) of theareas encompassing proposed criticalhabitat for the Great Lakes breedingpopulation of piping plovers arecurrently unoccupied by piping plovers.The remaining 89 km (55 mi) of the totaldesignated critical habitat are currentlyoccupied by piping plovers. Under theAct, critical habitat may not beadversely modified or destroyed by aFederal agency action; it does notimpose any restrictions on non-Federalentities unless they are conductingactivities funded or otherwisesponsored or permitted by a Federalagency (see Table 3 below). Section 7requires Federal agencies to ensure thatthey do not jeopardize the continuedexistence of the species.

TABLE 3.—ACTIVITIES POTENTIALLY IMPACTED BY PIPING PLOVER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only 1Additional activities potentially

affected by critical habitatdesignation 2

Federal Activities PotentiallyAffected.3 .........................................

Direct take and activities such as removing or destroying piping plov-er breeding habitat, whether by mechanical, chemical, or othermeans (e.g., construction, road building, boat launch and marinaconstruction or maintenance, beach nourishment); recreational ac-tivities that significantly deter the use of suitable habitat areas bypiping plovers or alter habitat through associated maintenance ac-tivities (e.g., off-road vehicle parks, paved walking paths); sale, ex-change, or lease of Federal land that contains suitable habitat thatmay result in the habitat being destroyed or appreciably degraded(e.g., shoreline development, building of recreational facilities suchas off-road vehicle parks, road building); activities that may resultin increased human activity and disturbance.

Activities by Federal agencies inany unoccupied critical habitatareas.

Private and other non-FederalActivities Potentially Affected.4 ........

Direct take and activities such as removing or destroying piping plov-er habitat, whether by mechanical, chemical, or other means (e.g.,construction, road building, boat launch and marina construction ormaintenance, beach nourishment) and appreciably decreasinghabitat value or quality (e.g., increased predation, invasion of ex-otic species, increased human presence or disturbance) that re-quire a Federal action (permit, authorization, or funding).

Funding, authorization, or permit-ting actions by Federal Agen-cies in any unoccupied criticalhabitat areas.

1 This column represents the activities potentially affected by listing the piping plover as an endangered species (December 11, 1985; 50 FR50726) under the Endangered Species Act.

2 This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected bylisting the species.

3 Activities initiated by a Federal agency.4 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Based upon our experience with thespecies and its needs, we conclude thatany Federal action or authorized actionthat could potentially cause adversemodification of designated occupiedcritical habitat would currently beconsidered ‘‘jeopardy’’ under the Act.Accordingly, the designation of areaswithin the geographic range occupiedby the piping plover will not likely haveany incremental impacts on whatactions may or may not be conducted by

Federal agencies or non-Federal personsthat receive Federal authorization orfunding. The designation of areasoutside the geographic range alreadyoccupied by the species may haveincremental impacts on what activitiesmay or may not be conducted byFederal agencies or non-Federal personsthat receive Federal authorization orfunding. However, our analysis did notidentify any significant incrementaleffects. Non-Federal persons that do not

have a Federal ‘‘sponsorship’’ of theiractions are not restricted by thedesignation of critical habitat, althoughthey continue to be bound by theprovisions of the Act concerning ‘‘take’’of the species.

(b) This rule will not createinconsistencies with other agencies’actions. As discussed above, Federalagencies have been required to ensurethat their actions do not jeopardize thecontinued existence of piping plovers



since the listing in 1985. Theprohibition against adverse modificationof critical habitat is not expected toimpose any substantial additionalrestrictions to those that currently exist.Because of the potential for impacts onother Federal agency activities, we willcontinue to review this action for anyinconsistencies with other Federalagency actions.

(c) This rule will not materially affectentitlements, grants, user fees, loanprograms, or the rights and obligationsof their recipients. Federal agencies arecurrently required to ensure that theiractivities do not jeopardize thecontinued existence of the species, and,as discussed above, we do not anticipatethat the adverse modificationprohibition (resulting from criticalhabitat designation) will have anysignificant incremental effects in areasof occupied habitat. The critical habitatdesignation may have some additionaleffects on the unoccupied areas ofproposed critical habitat, but we expectthese to be minor.

(d) OMB has determined that this rulemay raise novel legal or policy issuesand, as a result, this rule has undergoneOMB review.

Regulatory Flexibility Act (5 U.S.C. 601et seq.)

In the economic analysis, wedetermined that designation of criticalhabitat will not have a significant effecton a substantial number of smallentities. As discussed under RegulatoryPlanning and Review above, thisdesignation of critical habitat for theGreat Lakes breeding population of thepiping plover is not expected to have asignificant economic impact. Asindicated on Table 1 (see CriticalHabitat Designation section), wedesignated property owned by Federal,State, Tribal, and local governments andprivate property.

Within these areas, the types ofFederal actions or authorized activitiesthat we have identified as potentialconcerns are:

(1) Regulation of activities affectingwaters of the United States by the U.S.Army Corps of Engineers under section404 of the Clean Water Act;

(2) Regulation of water flows, waterdelivery, and diversion by Federalagencies;

(3) Sale, exchange, or lease of landsowned by a Federal agency;

(4) Road construction andmaintenance and right-of-waydesignation;

(5) Funding of low-interest loans tofacilitate the construction of low-incomehousing by the Department of Housingand Urban Development;

(6) Hazard mitigation and post-disaster repairs funded by the FederalEmergency Management Agency;

(7) Promulgation of air and waterquality standards under the Clean AirAct and the Clean Water Act and thecleanup of toxic waste and superfundsites under the Resource Conservationand Recovery Act (RCRA) and theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct by the U.S. EnvironmentalProtection Agency;

(8) Issuance of Endangered SpeciesAct section 10(a)(1)(B) permits by theFish and Wildlife Service; and

(9) Activities funded, carried out, orauthorized by any Federal agency.

Some of these activities sponsored byFederal agencies within the criticalhabitat areas are carried out by smallentities (as defined by the RegulatoryFlexibility Act) through contract, grant,permit, or other Federal authorization.As discussed above, these actions arelargely required to comply with thelisting protections of the Act, and thedesignation of critical habitat is notanticipated to have significantadditional effects on these activities inareas of critical habitat occupied by thespecies. Designation of critical habitat inareas that are unoccupied by thisspecies will not likely result insignificant additional effects becauseonly actions involving a Federal nexuswill be affected.

For actions on non-Federal propertythat do not have a Federal connection(such as funding or authorization), thecurrent restrictions concerning take ofthe species remain in effect, and thisfinal determination will have noadditional restrictions.

Small Business Regulatory EnforcementFairness Act (5 U.S.C. 804(2))

In the economic analysis, wedetermined that designation of criticalhabitat will not cause (a) any effect onthe economy of $100 million or more,(b) any increases in costs or prices forconsumers, individual industries,Federal, State, or local governmentagencies, or geographic regions, or (c)any significant adverse effects oncompetition, employment, investment,productivity, innovation, or the abilityof U.S.-based enterprises to competewith foreign-based enterprises. Refer tothe final economic analysis for adiscussion of the effects of thisdetermination.

Unfunded Mandates Reform Act (2U.S.C. 1501 et seq.)

In accordance with the UnfundedMandates Reform Act (2 U.S.C. 1501 etseq.):

(a) This rule will not ‘‘significantly oruniquely’’ affect small governments. ASmall Government Agency Plan is notrequired. Small governments will beaffected only to the extent that any oftheir actions involving Federal fundingor authorization must not destroy oradversely modify the critical habitat inareas where they have not previouslyundergone consultation to avoidjeopardizing the species.

(b) This rule will not produce aFederal mandate of $100 million orgreater in any year, that is, it is not a‘‘significant regulatory action’’ underthe Unfunded Mandates Reform Act.The designation of critical habitatimposes no obligations on State or localgovernments.

TakingsIn accordance with Executive Order

12630, this rule does not havesignificant takings implications, and atakings implication assessment is notrequired. This determination will not‘‘take’’ private property and will notalter the long-term value of privateproperty. As discussed above, thedesignation of critical habitat affectsonly Federal agency actions. The rulewill not increase or decrease the currentrestrictions on private propertyconcerning take of the piping plover.Due to current public knowledge of thespecies protection, the prohibitionagainst take of the species both withinand outside of the designated areas, andthe fact that critical habitat provides noincremental restrictions, we do notanticipate that property values will beaffected by the critical habitatdesignation. While real estate marketvalues may temporarily declinefollowing designation, due to theperception that critical habitatdesignation may impose additionalregulatory burdens on land use, weexpect any such impacts to be shortterm. Additionally, critical habitatdesignation does not precludedevelopment of HCPs and issuance ofincidental take permits. Landowners inareas that are included in the designatedcritical habitat will continue to have theopportunity to utilize their property inways consistent with the conservationof the piping plover.

FederalismIn accordance with Executive Order

13132, the rule does not have significantFederalism effects. A Federalismassessment is not required. In keepingwith Department of the Interior andDepartment of Commerce policy, theService requested information from andcoordinated development of this criticalhabitat proposal with appropriate State



resource agencies in Minnesota,Wisconsin, Michigan, Illinois, Indiana,Ohio, Pennsylvania, and New York, aswell as during the listing process. Wewill continue to coordinate any futuredesignation of critical habitat for theGreat Lakes piping plover with theappropriate State agencies. Thedesignation of critical habitat for thepiping plover imposes few additionalrestrictions to those currently in placeand, therefore, has little incrementalimpact on State and local governmentsand their activities. The designationmay have some benefit to thesegovernments in that the areas essentialto the conservation of the species aremore clearly defined, and the primaryconstituent elements of the habitatnecessary for the conservation of thespecies are specifically identified. Thisdefinition and identification may assistthese local governments in long-rangeplanning (rather than waiting for case-by-case section 7 consultations tooccur).

Civil Justice ReformIn accordance with Executive Order

12988, the Office of the Solicitor hasdetermined that the rule does notunduly burden the judicial system andmeets the requirements of sections 3(a)and 3(b)(2) of the Order. We designatecritical habitat in accordance with theprovisions of the Act. Thedetermination uses standard propertydescriptions and identifies the primaryconstituent elements within thedesignated areas to assist the public inunderstanding the habitat needs of theGreat Lakes breeding population ofpiping plover.

Paperwork Reduction Act of 1995 (44U.S.C. 3501 et seq.)

This rule does not contain anyinformation collection requirements forwhich Office of Management andBudget approval under the PaperworkReduction Act is required.

National Environmental Policy Act

We have determined that anEnvironmental Assessment and/or anEnvironmental Impact Statement asdefined by the National EnvironmentalPolicy Act of 1969 need not be preparedin connection with regulations adoptedpursuant to section 4(a) of theEndangered Species Act as amended. Anotice outlining our reason for thisdetermination was published in theFederal Register on October 25, 1983(48 FR 49244). This final determinationdoes not constitute a major Federalaction significantly affecting the qualityof the human environment.

Government-to-GovernmentRelationship With Tribes

In accordance with the President’smemorandum of April 29, 1994,‘‘Government-to-Government Relationswith Native American TribalGovernment’’ (59 FR 22951), ExecutiveOrder 13175, and the Department of theInterior’s requirement at 512 DM 2, wereadily acknowledge our responsibilityto communicate meaningfully withrecognized Federal Tribes on aGovernment-to-Government basis. Webelieve that certain Tribal lands areessential for the conservation of thepiping plover because they supportessential populations and habitat. We

coordinated with the Bad River Band ofLake Superior Chippewa Indians indetermining which Tribal landsconstitute critical habitat, and haveincluded that area in the critical habitatdesignation.

References Cited

A complete list of all references citedin this proposed rule is available uponrequest from the Fort Snelling RegionalOffice (see ADDRESSES section).

Author

The primary author of this notice isLaura J. Ragan (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,Exports, Imports, Reporting and recordkeeping requirements, Transportation.

Regulations Promulgation

For the reasons given in the preamble,we amend part 17, subchapter B ofchapter I, title 50 of the Code of FederalRegulations as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11(h) revise the first entryfor ‘‘Plover, piping’’ under ‘‘BIRDS’’ toread as follows:

§ 17.11 Endangered and threatenedwildlife.

* * * * *(h) * * *

SpeciesHistoric Range

Vertebrate populationwhere endangered or

threatenedStatus When listed Critical

habitatSpecialrulesCommon name Scientific name

* * * * * * *BIRDS

* * * * * * *Plover, piping ..... Charadrius

melodus.U.S.A. Great Lakes

northern Great Plains,Atlantic and Gulfcoasts, PR, VI), Can-ada, Mexico, Baha-mas, West Indies.

Great Lakes watershedin States of IL, IN, MI,MN, NY, OH, PA, andWI and Canada(Ont.)..

E 211 17.95(b) NA

* * * * * * *

3. Amend § 17.95(b) by adding criticalhabitat for the Great Lakes piping plover(Charadrius melodus) under paragraph(b) in the same alphabetical order as thisspecies occurs in § 17.11 (h) to read asfollows:

§ 17.95 Critical habitat-fish and wildlife.

* * * * *(b) Birds.

* * * * *PIPING PLOVER (Charadrius

melodus)—Great Lakes BreedingPopulation

1. Critical habitat units are depictedfor St. Louis County, Minnesota;Douglas, Ashland, Marinette, andManitowoc Counties, Wisconsin; LakeCounty, Illinois; Porter County, Indiana;Erie and Lake Counties, Ohio; ErieCounty, Pennsylvania; Oswego and



Jefferson Counties, New York; andAlger, Schoolcraft, Luce, Mackinac,Chippewa, Iosco, Presque Isle,Cheboygan, Emmet, Charlevoix,Leelanau, Benzie, Mason, andMuskegon Counties, Michigan, on themaps below.

2. i. The primary constituent elementsrequired to sustain the Great Lakesbreeding population of the pipingplover are found on Great Lakes islandsand mainland shorelines that supportopen, sparsely vegetated sandy habitats,such as sand spits or sand beaches, thatare associated with wide, unforestedsystems of dunes and inter-dunewetlands. In order for habitat to bephysically and biologically suitable forpiping plovers, it must have a totalshoreline length of at least 0.2 km (0.12mi) of gently sloping, sparsely vegetated(less than 50 percent herbaceous andlow woody cover) sand beach with atotal beach area of at least 2 hectares(ha) (5 acres (ac)) and a low level ofdisturbance from human activities andfrom domestic animals. As the nestingseason progresses, the level ofdisturbance tolerated by piping ploversincreases. A lower level of disturbanceis required at the beginning of thenesting period during nest site selection,

egg laying, and incubation. Beachactivities that may be associated with ahigh level of disturbance include, butare not limited to, walking pets offleash, loud noise, driving ATVs, orsignificantly increased human presence.The level of disturbance is relative tothe proximity to the nest, intensity, andfrequency of these and other similaractivities.

ii. Appropriately sized sites must alsohave areas of at least 50 meters (m) (164feet (ft)) in length where the beachwidth is more than 7 m (23 ft), there isprotective cover for nests and chicks,and the distance to the treeline (fromthe normal high water line to where theforest begins) is more than 50 m (164 ft).Beach width is defined as the distancefrom the normal high water line to theforedune (a low barrier dune ridgeimmediately inland from the beach)edge, or to the sand/vegetationboundary in areas where the foredune isabsent. The beach width may benarrower than 7 m (23 ft) if appropriatesand and cobble areas of at least 7 m (23ft) exist between the dune and thetreeline. Protective cover for nests andchicks consists of small patches ofherbaceous vegetation, cobble (stoneslarger than 1 cm (0.4 inches (in))

diameter), gravel (stones smaller than 1cm (0.4 in) diameter), or debris such asdriftwood, wrack, root masses, or deadshrubs.

iii. The dynamic ecological processesthat create and maintain piping ploverhabitat are also important primaryconstituent elements. These geologicallydynamic lakeside regions are controlledby processes of erosion, accretion, plantsuccession, and lake-level fluctuations.The integrity of the habitat componentsdepends upon regular sedimenttransport processes, as well as episodic,high-magnitude storm events. By theirnature, Great Lakes shorelines are in aconstant state of change; habitat featuresmay disappear, or be created nearby.The critical habitat boundaries reflectthese natural processes and the dynamiccharacter of Great Lakes shorelines.

3. Critical habitat does not includeexisting features and structures, such asbuildings, marinas, paved areas, boatramps, piers, bridges, lighthouses, andsimilar structures not containing one ormore of the primary constituentelements.

Note: Maps follows:

BILLING CODE 4310–55–P





Map of Units MN/WI–1, WI–1, WI–2,and WI–3

MN/WI–1: St Louis County, Minnesota.From USGS 1:24,000 quadrangle map WestDuluth, Minnesota (1953, photorevised1969). Lands 500 m (1640 feet) inland fromnormal high water line on Interstate Island inT49N R14W S10

WI–1: Douglas County, Wisconsin. FromUSGS 1:24,000 quadrangle maps Parkland,Wisconsin (1954, photorevised 1975) andSuperior, Wisconsin (1954, photorevised

1983). Lands 500 meters (1640 feet) inlandfrom normal high water line from the mouthof Dutchman Creek west-northwestwardalong the Lake Superior shoreline to thebreakwall forming the Superior FrontChannel opening to Lake Superior at theDouglas and St. Louis County line.

WI–2: Ashland County, Wisconsin. FromUSGS 1:24,000 quadrangle maps Cedar,Wisconsin (1964, photorevised 1975);Chequamegon Point, Wisconsin (1964,photorevised 1975); and Long Island,Wisconsin (1964). Lands 500 meters (1640

feet) inland from normal high water line fromthe southern boundary of T48N R3W, section1 northwestward along the Lake Superiorshoreline to Chequamegon Point Light.

WI–3: Ashland County, Wisconsin. FromUSGS 1:24,000 quadrangle map MichiganIsland, Wisconsin (1963). Lands 500 meters(1640 feet) inland from normal high waterline on Michigan Island within T51N R1Wsections 28, 20, and 21.

Note: Map follows:



Map of Units WI–4 and WI–5

WI–4: Marinette County, Wisconsin. FromUSGS 1:24,000 quadrangle map MarinetteEast, Wisconsin (1963, photorevised 1969).Lands 500 m (1640 ft) inland from normalhigh water line from the end of LeonardStreet at Red Arrow Park in T30N R24E

section 9 south-southeastward to the southend of Seagull Bar including nearshore sandbars.

WI–5: Manitowoc County, Wisconsin.From USGS 1:24,000 quadrangle map TwoRivers, Wisconsin (1978). Lands 500 m (1640ft) inland from normal high water line from

the southwest property boundary of PointBeach State Forest near Neshotah Park in thecity of Twin Rivers (T20N R25E section 31)northwestward along the Lake Michiganshoreline to the south boundary of section 9,T20N R25E, at Rawley Point.

Note: Map follows:



Map of Units IL–1 and IN–1

IL–1: Lake County, Illinois. From USGS1:24,000 quadrangle maps Zion, Illinois(1993) and Waukegan, Illinois (1993). Lands500 m (1640 ft) inland from normal highwater line from 17th Street and the LakeMichigan shoreline in Illinois Beach StatePark T46N R12E section 14 (Zion, Ill. quad)southward along the Lake Michigan shoreline

(excluding the portion of Lake Michiganshoreline from dividing line of T46N R12Esections 23 and 26 to 500 m (1,640 ft) southof the Illinois Beach State Park Lodge andConference Center) to the Waukegan Beachbreakwall at North Beach Park T45N R12Esection 22 (Waukegan quad).

IN–1: Porter County, Indiana. From USGS1:24,000 quadrangle maps Ogden Dunes,

Indiana (1991) and Dune Acres, Indiana(1991). Lands 500 m (1640 ft) inland fromnormal high water line from the westernboundary of the Cowels Bog/Dune AcresUnit, (located east of the Port of Indiana andthe NIPSCO Baily Generating Station) east-northeastward along the Indiana Dunes StatePark to Kemil Road at Beverly Shores.

Note: Map follows:

Map of Units MI–1 through MI–23

MI–1: Chippewa, Luce, and AlgerCounties, Michigan. From USGS 1:24,000quadrangle maps Whitefish Point, Michigan(1951); Vermilion, Michigan (1951); BetsyLake North, Michigan (1968); MuskallongeLake East, Michigan (1968); MuskallongeLake West, Michigan (1968); and GrandMarais, Michigan (1968). Lands 500 m (1640ft) inland from normal high water line withinthe junction of the southern boundary ofT50N R5W section 6 (Whitefish Point quad)and including the shore of Lake Superiorfollowing the shoreline northeast toWhitefish Point, then following the LakeSuperior shoreline westward around thepoint(Vermilion SE, Vermilion quads),crossing the Luce County line and continuingwestward (Betsy Lake North, Betsy LakeNorthwest) across the Alger County line(Grand Marais East) to Lonesome Point andthe East Bay of the Sucker River (GrandMarais quad) and following the shorelinealong the inner bay of Grand Marais Harborpast Carpenter Creek and ending at theshoreline north of the east end of the privateroad originating at the junction of Highway

58, Morris Road, and Veteran Road. The unitthen continues from the breakwall north ofthe harbor, along the Lake Superior shorelineof Grand Marais near the former Coast Guardstation (Grand Marais quad) westward alongthe Lake Superior shoreline to the PicturedRocks National Lakeshore property boundaryin T49N R14W section 1.

MI–2: Mackinac County, Michigan. FromUSGS 1:24,000 quadrangle map Pointe AuxChenes, Michigan (1964, photorevised 1975).Lands 500 m (1640 ft) inland from normalhigh water line from the mouth of the PointeAux Chenes river following the LakeMichigan shoreline northwestward to theHiawatha National Forest property boundaryat the junction of T41N R5W sections 23 and26.

MI–3: Schoolcraft and Mackinac Counties,Michigan. From USGS 1:24,000 quadranglemap Hughes Point, Michigan (1972). Lands500 m (1640 ft) inland from normal highwater line from the westernmost breakwall atthe Port Inland Gaging Station following theLake Michigan shoreline eastward alongHughes Point to the mouth of Swan Creek.

MI–4: Emmet County, Michigan. FromUSGS 1:24,000 quadrangle maps Big Stone

Bay, Michigan (1964, photoinspected 1975);Waugoshance Island, Michigan (provisonal1982); Bliss, Michigan (1982); Cross Village,Michigan (1982). Lands 500 m (1640 ft)inland from normal high water line from thejunction of the northeast corner of T39N R5Wsection 28 (Big Stone Bay quad) and LakeMichigan shoreline westward along theshoreline around and including Temperanceand Waugoshance islands and any nearshoresandbars (Waugoshance Island quad), alongthe southern side of Waugoshance Pointfollowing the shoreline southeastward to BigSucker Creek, continuing southward andsouthwestward along Sturgeon Bay Point(Bliss quad) and continuing southward alongthe Lake Michigan shoreline to the southwestboundary of T37N R6W section 5.

MI–5: Emmet County, Michigan. FromUSGS 1:24,000 quadrangle map Forest Beach,Michigan. Lands 500 m (1640 ft) inland fromnormal high water line from the junction ofLake Michigan shoreline and the northwestboundary of T36N R6W section 30 south-southeastward along Lake Michiganshoreline to the junction of the shoreline andthe southeast corner of T35N R6W section 9.



MI–6: Emmet County, Michigan. FromUSGS 1:24,000 quadrangle map HarborSprings, Michigan. Lands 500 m (1640 ft)inland from normal high water line from themouth of Tannery Creek north along LakeMichigan shoreline of Little Traverse Baycrossing the northern property boundary ofPetoskey State Park to include the shorelineof Mononaqua Beach within T35N R5Wsections 22 and 21.

MI–7: Charlevoix County, Michigan. FromUSGS 1:24,000 quadrangle maps Ironton,Michigan (1983) and Charlevoix, Michigan(1983). Lands 500 m (1640 ft) inland fromnormal high water line within T34N R8Wsection 14.

MI–8: Charlevoix County, Michigan. FromUSGS 1:24,000 quadrangle map Charlevoix,Michigan (1983). Lands 500 m (1640 ft)inland from normal high water line from thejunction of the line separating T34N R8Wsection 31 and T33N R8W section 6 with theLake Michigan shore then extendssouthwestward along the shoreline andincluding Fisherman’s Island to theFisherman’s Island State Park propertyboundary at the end of Lakeshore Drivewhere it meets the line between T33N R9Wsections 12 and 1.

MI–9: Charlevoix County, Michigan. FromUSGS 1:24,000 quadrangle maps GardenIsland West, Michigan (1980) and BeaverIsland North (1986). Lands 500 m (1640 ft)inland from normal high water line fromIndian Point (Garden Island West quad)T39N R10W section 20 southward along thewest Lake Michigan shoreline of BeaverIsland including Donegal Bay and McCauleyPoint and ending at the junction of thedividing line of T39 N R10W and T38NR10W and the Lake Michigan shoreline(Beaver Island North quad).

MI–10: Charlevoix County, Michigan. FromUSGS 1:24,000 quadrangle map BeaverIsland North (1986). Lands 500 m (1640 ft)inland from normal high water line from thejunction of Lake Michigan and the northwestcorner of T38N R11W section 25 southwardalong the Lake Michigan shoreline to thejunction of the Lake Michigan shoreline andthe dividing line between T39N and T38NR11W.

MI–11: Charlevoix County, Michigan. FromUSGS 1:24,000 quadrangle map HighIsland(1986). Lands 500 m (1640 ft) inlandfrom normal high water line within T39NR11W sections 27 and 32 and T38N R11Wsection 5.

MI–12: Leelanau County, Michigan. FromUSGS 1:24,000 quadrangle maps Northport,Michigan (provisional 1983)and NorthportNW, Michigan (provisional 1983). Lands 500m (1640 ft) inland from normal high waterline from the intersection of the LakeMichigan shoreline and the line betweenT32N R11W section 12 and T32N R10Wsection 7—excluding lands covered by the

Magic Carpet Woods Association HCP,approximately 2,600 feet of frontage onCathead Bay within the east half of thesouthwest quarter and the west half of thesoutheast quarter of Section 14, T32N, R11Win Leelanau Township—then following theshoreline southwestward and past CatheadPoint in T32N R11W section 15 (Northportquad) southwestward along the LakeMichigan shoreline to the intersection of theshoreline with the southern boundary ofT32N R11W section 16 north of ChristmasCove (Northport NW quad).

MI–13: Leelanau County, Michigan. FromUSGS 1:24,000 quadrangle map South FoxIsland (provisional 1986). Lands 500 m (1640ft) inland from normal high water line withinT34N R13W sections 15, 16, and 21 andT35R13W section 30.

MI–14: Leelanau County, Michigan. FromUSGS 1:24,000 quadrangle map NorthManitou Island (provisional 1983). Lands 500m (1640 ft) inland from normal high waterline within T31N R14W sections 22, 23, 27and 28 on North Manitou Island.

MI–15: Leelanau County, Michigan. FromUSGS 1:24,000 quadrangle maps Glen Arbor,Michigan (1983); Glen Haven, Michigan(1983); and Empire, Michigan (1983). Lands500 m (1640 ft) inland from normal highwater line from Crystal Run in T29N R14Wsection 14 (Glen Arbor quad) south-southwestward and westward along the LakeMichigan shoreline, then west-northwestward to Sleeping Bear Point (GlenHaven quad) and southwestward and southto the southern Sleeping Bear Dunes NationalLakeshore property boundary in T28N R15Wsection 13 (Empire quad).

MI–16: Benzie County, Michigan. FromUSGS 1:24,000 quadrangle maps Empire,Michigan (1983); Beulah, Michigan(provisional 1983); and Frankfort, Michigan(1983). Lands 500 m (1640 ft) inland fromnormal high water line from Esch Road inT27N R15W section 1 (Empire quad) south-southwestward along the shoreline of LakeMichigan at Platte Bay (Beulah quad), thenwestward along the shoreline of LakeMichigan to Platte River Point (Frankfortquad) continuing west-southwestward to theSleeping Bear Dunes National Lakeshoreproperty boundary at Sutter Road in T27NR16Wsection 26. Continuing from thejunction of Lake Michigan shoreline andPoint Betsie Natural Area property boundaryin T27N R16W section 33 southward alongthe Lake Michigan shoreline to include allshoreline within T26N16W section 4.

MI–17: Mason County, Michigan. FromUSGS 1:24,000 quadrangle maps ManisteeNW, Michigan (provisional 1923) andHamlin Lake, Michigan (1982). Lands 500 m(1640 ft) inland from normal high water linefrom the mouth of Cooper Creek T20N R18Wsection 13 (Manistee NW quad) south-southwestward following the Lake Michigan

shoreline along Big Sable Point (Hamlin Lakequad) to the mouth of the Big Sable RiverT19N R18W section 19.

MI–18: Muskegon County, Michigan. FromUSGS 1:24,000 quadrangle map MuskegonWest (1972, photoinspected 1980) and Dalton(1983). Lands 500 m (1640 ft) inland fromnormal high water line from the northbreakwall of the canal joining MuskegonLake and Lake Michigan (Muskegon Westquad) north along the Lake Michiganshoreline to the northern Muskegon StatePark property boundary at the shoreline(Dalton quad).

MI–19: Chippewa County, Michigan. FromUSGS 1:24,000 quadrangle maps AlbanyIsland, Michigan (1964, photoinspected1976) and DeTour Village, Michigan (1964).Lands 500 m (1640 ft) inland from normalhigh water line from the State Forestboundary in T41N R3E section 11 (AlbanyIsland quad) and follows the Lake Huronshoreline east south eastward around andincluding St. Vital Point and then north tothe mouth of Joe Straw Creek in T41N R3Esection 12(De Tour Village quad).

MI–20: Cheboygan County, Michigan.From USGS 1:24,000 quadrangle mapsCheboygan, Michigan (1982) and CordwoodPoint, Michigan (1982). Lands 500 m (1640ft) inland from normal high water line fromthe junction of the Lake Huron shoreline andthe western boundary of T38N R1W section22 (Cheboygan quad) eastward along the LakeHuron shoreline of Grass Bay, continuing tothe western boundary of T38N R1E section20 (Cordwood Point quad).

MI–21: Presque Isle County, Michigan.From USGS 1:24,000 quadrangle mapsRoger’s City, Michigan (1971) and Moltke,Michigan (1971). Lands 500 m (1640 ft)inland from normal high water line withinT35N R5E section 6 and T36N R5E section31 (Roger’s City quad) continuingnorthwestward to the junction of Nagel Rdand Forty Mile Road at the junction of T36NR4E section 25 and T36N R5E section 30(Moltke quad).

MI–22: Presque Isle County, Michigan.From USGS 1:24,000 quadrangle mapThompson’s Harbor, Michigan (1971). Lands500 m (1640 ft) inland from normal highwater line from Black Point to Grand LakeOutlet including shoreline within T34N R7Esections 10, 11, 14, and 15.

MI–23: Iosco County, Michigan. FromUSGS 1:24,000 quadrangle map East Tawas,Michigan (1989). Lands 500 m (1640 ft)inland from normal high water line from theTawas Sate Park boundary at the U.S. CoastGuard Station on the east side of Tawas Pointsouthward along the Lake Huron shorelineincluding offshore sand spits and along thetip of the point and northeastward includingall shoreline in T22N R8E section 34.

Note: Map follows:





Map of Units OH–1 and OH–2

OH–1: Erie County, Ohio. From USGS1:24,000 quadrangle maps Huron, Ohio(1969) and Sandusky, Ohio (1969,photorevised 1975). Lands 500 m (1640 ft)inland from normal high water line from themouth of Sawmill Creek (Huron quad)northwestward along the Lake Erie shoreline

to the western property boundary of SheldonMarsh State Natural Area in T6N R23W(Sandusky quad) at the point where theCedar Point causeway turns west and southtoward Sandusky.

OH–2: Lake County, Ohio. From USGS1:24,000 quadrangle map Mentor, Ohio(1963, revised 1992). Lands 500 m (1640 ft)

inland from normal high water line from theeastern boundary line Headland DunesNature Preserve westward along the LakeErie shoreline to the western boundary of theNature Preserve and Headland Dunes StatePark.

Note: Map follows:



Map of Unit PA–1

PA–1: Erie County, Pennsylvania. FromUSGS 1:24,000 quadrangle map Erie North,Pennsylvania (1957, revised 1969 and 1975,photoinspected 1977). Lands 500 m (1640 ft)inland from normal high water line from the

lighthouse north of Peninsula Drive on thenorth side of Presque Isle (located atapproximately 042 degrees 09′ 57.41″ N and080 degrees 06′57.57″ W) eastward along theLake Erie shoreline around the tip of PresqueIsle peninsula to the southern terminus of thehiking trail on the southeast side of Gull

Point (located at approximately 042 degrees10′ 3.13″ N and 080 degrees 04″ 29.56″ W).It includes any new beach habitat that mayaccrete along the present shoreline portion ofthe unit.

Note: Map follows:



Map of Unit NY–1

NY–1: Oswego County, New York. FromUSGS 1:24,000 quadrangle maps Pulaski,New York (1956), Ellisburg, New York

(1958), and Henderson, New York (1959).Lands 500 m (1640 ft) inland from normalhigh water line from the mouth of theSalmon River (Pulaski quad) northward alongthe Lake Ontario shoreline to the Oswego

County-Jefferson County line (Ellisburg quad)and northward to the Eldorado Road(Henderson quad).

Note: Map follows:

* * * * * Dated: April 30, 2001.Joseph E. Doddridge,Acting Assistant Secretary for Fish andWildlife and Parks.[FR Doc. 01–11205 Filed 5–2–01; 12:41 pm]BILLING CODE 4310–55–C


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