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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0070; 4500030114]

RIN 1018-AX10

Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the Pacific Coast distinct population segment (DPS) (Pacific Coast WSP) of the western snowy plover (Charadrius nivosus nivosus,formerlyC. alexandrinus nivosus) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 24,527 acres (9,926 hectares) of critical habitat for the Pacific Coast WSP in Washington, Oregon, and California, fall within the boundaries of the critical habitat designation. This revised final designation constitutes an increase of approximately 12,377 ac (5,009 ha) from the 2005 designation of critical habitat for the Pacific Coast WSP. A taxonomic name change has occurred and been accepted for the snowy plover. Throughout the remainder of this document, we will use the currently recognized name for the subspecies,Charadrius nivosus nivosus,to which the listed entity (Pacific Coast WSP) belongs for references to the Pacific Coast WSP.
DATES: This rule becomes effective on July 19, 2012.
ADDRESSES: This final rule, final economic analysis, and maps of critical habitat will be available on the Internet athttp://www.regulations.govat Docket No. FWS-R8-ES-2010-0070, and athttp://www.fws.gov/arcata/.Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411.
FOR FURTHER INFORMATION CONTACT: Nancy Finley, Field Supervisor, or Jim Watkins, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; telephone 707-822-7201; facsimile 707-822-8411. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.This is a final rule to revise the designation of critical habitat for the threatened Pacific Coast population of the western snowy plover under the Act. Under the Act, any species that is determined to be endangered or threatened requires designated critical habitat. We must issue a rule to designate critical habitat. In total, approximately 24,527 acres (9,926 hectares) of critical habitat for the Pacific Coast WSP in Washington, Oregon, and California, fall within the boundaries of the critical habitat designation.

We designated critical habitat for this species in 1999 and again in 2005. As part of a settlement agreement, we agreed to reconsider the designations. A proposed revised critical habitat was published in theFederal Registeron March 22, 2011 (76 FR 16046). This constitutes our final revised designation for the Pacific Coast WSP.

We are making the following changes to the critical habitat designation. See Table 2 for details.

State Current critical habitat designation Revised designation Factors affecting revised designation Washington 2,526 acres (1,023 hectares) of Federal, State, and Private lands Four units in Washington, totaling 6,077 acres (2,460 hectares) We are excluding 425 acres (172 hectares) of Tribal lands from designation based on partnerships. Oregon 2,147 acres (869 hectares) of Federal, State, and Private lands 9 units in Oregon, totaling 2,112 acres (856 hectares) We are excluding 3,106 acres (1,257 hectares) of lands from designation based on partnerships with landowners. California 7,477 acres (3,030 hectares) of Federal, State, and Private lands 47 units in California, totaling 16,337 acres (6,612 hectares) We are excluding 266 acres (108 hectares) of lands from designation based on partnerships with landowners.

The basis for our action.Under the Endangered Species Act, any endangered or threatened species must have a designated critical habitat. We are required to base the designation on the best available scientific data after taking into consideration economic and other impacts. The Secretary can exclude an area from critical habitat if the benefits of exclusion outweigh the benefits of designation, unless the exclusion will result in the extinction of the species.

We prepared an economic analysis.To ensure that we consider the economic impacts, we prepared a new economic analysis of the proposed revised designation. On January 17, 2012, we made available our revised draft economic analysis (77 FR 2243). We received public comments on the draft economic analysis and revised it based on input from the public. The economic analysis did not identify any areas with disproportionate costs associated with the designation, and no areas were excluded from the final designation based on economic reasons.

We incorporated peer review.We sought comments and information from independent specialists to ensure that our critical habitat designation was based on scientifically sound data, assumptions, and analyses. We had invited these peer reviewers to comment on our specific assumptions and conclusions in the proposed revision of the critical habitat designation. Information we received from peer review is incorporated in this final revised designation.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of revised critical habitat for the Pacific Coast WSP under the Act (16 U.S.C. 1531et seq.). For more information on the taxonomy, biology, and ecology of the Pacific Coast WSP, refer to the final listing rule published in theFederal Registeron March 5, 1993 (58 FR 12864); the 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607, April 21, 2006); and the revised proposed critical habitat rulepublished in theFederal Registeron March 22, 2011 (76 FR 16046). Additional information on this species can also be found in the Recovery Plan for the Pacific Coast Population of the Western Snowy Plover (Charadrius alexandrinus nivosus) finalized on August 13, 2007, which is available from the Arcata Fish and Wildlife Office (seeADDRESSESsection) (Service 2007). Information on the associated draft economic analysis for the revised proposed critical habitat was published in theFederal Registeron January 17, 2012 (77 FR 2243). The nomenclature for the listed entity has changed to the “Pacific Coast population of the western snowy plover (Charadrius nivosus nivosus),” but this change does not alter the description or distribution of the species.

Change in Taxonomic Nomenclature

In our January 17, 2012,Federal Registerpublication (77 FR 2243), which made available the draft economic analysis on the March 22, 2011, revised proposed critical habitat for the Pacific Coast WSP, we proposed a taxonomic and nomenclatural change for the Pacific Coast WSP fromCharadrius alexandrinus nivosustoC. nivosus nivosusand for that change to be published in the Code of Federal Regulations (CFR). Based on information presented in that notice (see the notice's section entitledTaxonomic and Nomenclatural Changes Affecting Charadrius alexandrinus nivosus) and acceptance of the change by the scientific community, we are amending the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) to identify the listed entity as the western snowy plover (Pacific Coast population DPS) (Charadrius nivosus nivosus), to update the “Historic Range” column to clarify that the historical range of the Pacific Coast population DPS is California, Oregon, Washington, and Mexico, and to update the “Vertebrate population where endangered or threatened” column to indicate that the DPS is threatened in California, Oregon, Washington, and Mexico (within 50 miles of Pacific coast).

New Information on Species' Description, Life History, Ecology, Habitat, and Range

We did not receive any new information pertaining to the description, ecology, or habitat of the Pacific Coast WSP following the 2011 revised proposed critical habitat rule (76 FR 16046; March 22, 2011).

Climate Change

Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g.,temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g.,habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

Sea level rise and hydrological changes associated with climate change are having and will continue to have significant effects on Pacific Coast WSP and its habitat over the next several decades. Sea level rise is a result of two phenomena: Thermal expansion (increased sea water temperatures) and global ice melt (Cayanet al.2006, p. 5). Between 1897 and 2006, the observed sea level rise has been approximately 0.08 inches (in) (2 millimeters (mm)) per year, or a total of 8 in (20 centimeters (cm)) over that period (Hebergeret al.2009, p. 6). Older estimates projected that sea level rise along the California coast would follow a similar rate and reach 0.7-2 feet (ft) (0.2-0.6 meters (m)) by 2100 (IPCC 2007). Recent observations and models (including the models we used to evaluate Pacific Coast WSP habitat) indicate that those projections were conservative and ignored some critical factors, such as melting of the Greenland and Antarctica ice sheets (Hebergeret al.2009, p. 6). Hebergeret al.(2009, p. 8) have updated the sea level rise projections for California to 3.3-4.6 ft (1.0-1.4 m) by 2100, while Vermeer and Rahmstorf (2009, p. 21530) calculate the sea level rise globally at 2.4-6.2 ft (0.57-1.9 m); in both cases, recent estimates were more than twice earlier projections. Combined with California's normal dramatic tidal fluctuations and coincidental storms, the severity of the latter increasing with more frequent El Niño Southern Oscillations due to increasing surface water temperature (Cayanet al.2006, p. 17), the effects of sea level rise are expected to reach farther inland than previously anticipated (Cayanet al.2006, pp. 48-49; Cayanet al.2009, p. 40). Similar effects are expected to occur along the Oregon and Washington coastlines (Galbraithet al.2002, pp. 173-183; Huppertet al.2009, pp. 285-309; Ruggieroet al.2010, 211-262).

For the Pacific Coast WSP and other shorebird habitat, Galbraithet al.(2002, pp. 173-183) in a study of sites in Washington (Willapa Bay) and California (Humboldt Bay and San Francisco Bay) projected losses of intertidal habitat could range between 20 and 70 percent of the existing habitat. In addition, sea-level rise may result in coastal areas to lose their ability to continue to support the current number of shorebirds. Areas with steep topography (Northern California to Washington State) or seawalls (Southern California) with limited beach habitat are expected to have the most severe losses (Galbraithet al.2002, pp. 173-183). Additionally sea-level rise would cause: (1) Inundation of low-lying areas by high tides; (2) flooding of coastal areas during major storm events, especially near river mouths; (3) acceleration of erosion of coastal bluffs; and (4) a shift in beach profiles, move the position of the mean high water line landward (Huppertet al.2009, p. 285).

In our development of this critical habitat designation, we evaluated numerous climate change models of varying scope and scale. Due to the wide range of the Pacific Coast WSP (Washington to Mexico) we selected models which reflected conditions across the range for the Pacific Coast WSP and those developed or accepted by the Department of the Interior as a basis for determining the extent of the effects of climate change on coastal habitat used by the Pacific Coast WSP.

Previous Federal Actions

The Pacific Coast WSP was listed as a threatened species on March 5, 1993 (58 FR 12864). Critical habitat was designated in 1999 (64 FR 68508; December 7, 1999). That rule was remanded and partially vacated by the U. S. District Court for the District of Oregon on July 2, 2003, in order to conduct a new analysis of economic impacts (Coos County Board of CountyCommissioners et al.v.Department of the Interior et al.,CV 02-6128, M. Hogan). We published a revised rule designating critical habitat on September 29, 2005 (70 FR 56970).

A 5-year status review of the population under section 4(c)(2) of the Act was completed June 8, 2006, based on the analysis conducted for the section 4(b)(3)(B) status review for a 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607; April 21, 2006). Because the Pacific Coast WSP was listed prior to our 1996 policy published in theFederal Registeron February 7, 1996 (61 FR 4721) regarding recognition of distinct population segments, in our 12-month finding, we reviewed and confirmed our determination that the Pacific Coast WSP constituted a valid distinct population segment.

On October 2, 2008, the Center for Biological Diversity challenged our 2005 critical habitat designation (70 FR 56970; September 29, 2005) (Center for Biological Diversityv.Kempthorne, et al.,No. C-08-4594 PJH (N.D. California)). This litigation was resolved through settlement, in which the Service agreed to conduct a rulemaking to consider potential revisions to the designated critical habitat for the Pacific Coast WSP. On May 11, 2009, the U. S. District Court for the Northern District of California adopted the terms of the settlement agreement and issued an order requiring the Service to submit a final revised critical habitat designation to theFederal Registerby June 5, 2012. This rule complies with that court order.

Summary of Comments and Recommendations

We requested written comments from the public on the 2011 proposed rule to revise critical habitat for the Pacific Coast WSP during two comment periods. The first comment period requesting comments in association with the publication of the proposed revised rule (76 FR 16046) opened on March 22, 2011, and closed May 23, 2011. Upon the availability of the draft economic analysis (DEA) associated with the revised proposed critical habitat, a second comment period covering both the revised proposed rule and the DEA opened on January 17, 2012 (77 FR 2243) and closed on February 16, 2012. During both public comment periods, we contacted appropriate Federal, State, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposal to revise critical habitat for this species and the associated DEA. During the comment periods, we requested that all interested parties submit comments or information related to the proposed revisions to critical habitat, including (but not limited to) the following: Unit boundaries; species occurrence information and distribution; land use designations that may affect critical habitat; potential economic effects of the revised proposed designation; benefits associated with critical habitat designation; areas proposed for designation and associated rationale for the non-inclusion or considered exclusion of these areas; and methods used to designate critical habitat.

During the first comment period, we received 149 comment letters directly addressing the proposed revision of critical habitat, as follows: 1 from a peer reviewer, 5 from Federal agencies, 1 from a Native American Tribe, and 142 from public organizations or individuals. During the second comment period, we received nine additional comments addressing the revised proposed critical habitat designation and the DEA. Of these latter comments, none were from Federal agencies, one was from a State agency, and the remaining eight were from public organizations or individuals. We did not receive any additional comments from Native American Tribes during the second public comment period. We reviewed all comments received for substantive issues and new information regarding the revised designation of critical habitat for the Pacific Coast WSP. All substantive comments are addressed in the following summary and any changes have been incorporated into this revised final rule as appropriate.

The open period for requesting public hearings on the revised proposed rule ran from March 22, 2011, through May 6, 2011 (76 FR 16046). The second open period for requesting public hearings associated with the January 17, 2012 (77 FR 2243),Federal Registerpublication ran from January 17, 2012, through February 16, 2012. We did not receive any requests for a public hearing during the two open periods.

Peer Review

In accordance with our Policy for Peer Review in Endangered Species Act Activities, published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which it occurs, and conservation biology principles. One peer reviewer responded and generally supported the revised proposed designation, and provided additional information, clarifications, and suggestions that we have incorporated, as appropriate, to improve this revised final critical habitat rule. Other potential reviewers that were contacted could not respond due to prior commitments and timing of the requested review relative to the Pacific Coast WSP field season. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review Comments

(1)Comment:The peer reviewer affirmed that the background information, essentially the biology of the Pacific Coast WSP, was well represented. Additional information was provided for the distribution of Pacific Coast WSP in Oregon. The reviewer suggested including sites in northern Oregon not covered under the State's habitat conservation plan (HCP), and that the sites should be considered collectively, as plovers move between them.

Our Response:We appreciate the assessment of the revised proposed rule by the peer reviewer. We have identified all the areas we consider to have the physical or biological features essential to the conservation of the species or other areas we have determined to be essential for the conservation of the species as based on our criteria for designating critical habitat. Not all occupied sites were proposed as critical habitat. Some areas meeting the definition of critical habitat have been excluded from this revised final critical habitat designation under section 4(b)(2) of the Act (see Exclusions section for a detailed discussion). Those sites that we consider to have spatial significance to one another were grouped as subunits of a larger unit. The northern Oregon sites referenced by the reviewer were not included because of their relatively limited use by Pacific Coast WSP at this time and they were determined not to be essential.

The HCP with the Oregon Parks and Recreation Department (OPRD) is a landscape-level conservation planning effort. It was developed with the assistance of a multi-partner steering committee that reviewed the recovery plan and objectives, historical plover use, and existing habitat conditions, and selected the most appropriate locations for reestablishment of plover nesting habitat. In addition, the HCP went through extensive public review at both the State and Federal levels, and incorporated appropriate input from those processes.

(2)Comment:The peer reviewer agreed with the conservation benefit ofdesignating additional habitat for the Pacific Coast WSP. Specifically, the reviewer acknowledged that additional habitat is needed for connectivity between sites, and noted that the revised proposed rule leaves a 75-mile (mi) (121-kilometer (km)) gap between units on the north and south coasts of Oregon.

Our Response:We appreciate the peer reviewer's critical review. Connectivity is not the only criterion used to select sites. We refer readers to our Criteria Used To Identify Critical Habitat section in the revised proposed rule (76 FR 16046; March 22, 2011). Selected sites must have regional importance, either for breeding or wintering Pacific Coast WSPs.

There are few additional suitable locations between Oregon's north and south coasts to designate as critical habitat. Sites were considered, but not proposed, due to habitat and development conditions that would adversely impact plovers were they to use the sites. Seventy-five miles is a relatively small gap in the range given that current gap between occupied habitat in Oregon and Washington is greater than 150 miles (241 km).

(3)Comment:The peer reviewer acknowledged the importance of addressing sea-level rise, but noted uncertainty regarding our ability to predict how Pacific Coast WSP will respond. In addition, the reviewer noted that we cannot adequately predict the response of Pacific Coast WSP prey sources to a rapidly changing beach environment that is compromised by years of beach stabilization and invasive, nonnative plants.

Our Response:We agree that the response of Pacific Coast WSPs and their prey is difficult to predict (refer toClimate Changesection above). Our models for sea-level rise are general in nature as they must represent the entire range of the Pacific Coast WSP in the United States. Consequently, site- and regionally-specific models are relevant when assessing specific effects on species and locations, but for the purposes of this evaluation, landscape-scale models were used to assist us in establishing unit boundaries.

There is inherent uncertainty associated with the parameters in the model; however, assumptions were selected that were generally conservative to best protect the species. Our assessment of sea-level rise in the revised proposed rule only addresses habitat, and does not attempt to address prey response, plover use, and site-specific shoreline armoring, as these are conditions or parameters that cannot be adequately represented across the range of the species.

Federal Agency Comments Bureau of Land Management

(4)Comment:The Bureau of Land Management (BLM) in Arcata, California, noted that, as proposed, Unit 5 (Subunits A, B, and C) has expanded to the west, encompassing the intertidal zone. Yet the eastern boundary remains the same as in prior critical habitat designations. BLM commented that they understand the rationale for the westward expansion based on year-to-year changes to the beach environment and improved mapping, because of expected inundation resulting from sea-level rise. BLM noted that critical habitat would be better served with an expansion to the east.

Our Response:Unit 5 primarily depicts mapping changes with improved information from the 2005 designation. We did not extend the unit to the east, as there is a dune crest that would separate such an eastern expansion from the ocean beach. Such a barrier would likely discourage Pacific Coast WSP use of the area, combined with the paved road that reaches the length of Humboldt Bay's South Spit. Similarly, there is a dirt road to the east side of the dune crest in subunit CA 5B that may also discourage Pacific Coast WSP use of any eastern expansion area there.

Department of the Army (U.S. Army Corps of Engineers)

(5)Comment:The U.S. Army Corps of Engineers (USACE) challenged the need for critical habitat designation of the intertidal zone, stating that Pacific Coast WSPs generally forage on wrack deposited at the maximum high water mark, and roost well above this line and are not found along the water's edge.

Our Response:We agree that most foraging by Pacific Coast WSP on southern California beaches is associated with wrack; however, Pacific Coast WSP will use the intertidal areas. Use of intertidal areas may be greater where there is no offshore kelp beds to form well-developed wrack, such as in northern California, Oregon, and Washington. However, Pacific Coast WSPs have been documented foraging within the beach intertidal zone, and gathering food from both above and below the sand surface (Pageet al.2009;http://bna.birds.cornell.edu/bna/species/154/articles/foodhabits).

In areas that do not have well-developed wrack, the intertidal zone may play a greater importance in plover foraging. Consequently, the intertidal zone is essential to Pacific Coast WSP's conservation, thereby meeting the standard for designation as critical habitat when there is an association with other features and primary constituent elements.

(6)Comment:The USACE commented that our approach to sea-level rise should be modified. The highest, high water boundary is recommended as a starting reference point. In addition, the USACE stated that the eastern boundary should not be established in areas that do not currently contain suitable habitat as a means to address sea-level rise.

Our Response:The purpose of this revised critical habitat designation is to conserve the Pacific Coast WSP. Establishing a western boundary is difficult, but the “water's edge” is a boundary that is easily determined on the ground. We agree with the USACE that the water's edge is difficult to map, and will change with seasonal and daily tides, storm events, beach configuration, etc. Our maps and the inclusion of the intertidal zone are an attempt to address the water's edge issue and include the full range of habitat available to the Pacific Coast WSP.

We expanded critical habitat to the east from past designations to help ensure there will be adequate potential for habitat in the future as sea-level rise occurs. Not all habitat to the east is currently suitable, however, and we include in this critical habitat designation only those areas that we consider likely to be suitable with restoration. Not addressing the eastern expansion and only considering currently available habitat would limit the conservation value of a critical habitat designation as “coastal squeeze” occurs with a rise in sea level. Using elevations on the beach and adjusting them as sea-level rise occurs, as suggested by the USACE, makes it difficult for land and project managers to determine critical habitat boundaries.

(7)Comment:The USACE questioned the validity of the Pacific Coast WSP listing as threatened. Specifically, the agency provided an example of a snowy plover banded in Utah appearing at a coastal Orange County, California, site.

Our Response:First, we note that the Service action at issue here does not concern whether or not the Pacific Coast WSP should be listed under the Act, but whether the Service should revise critical habitat for the species. Separate from this action, the Service is currently reviewing the listing status of the Pacific Coast WSP (see 76 FR 30377; May 25, 2011). For further discussion of listing issues, we direct the USACE to our 12-month finding on a petition to delist the Pacific Coast WSP (71 FR 20607; April21, 2006), where detailed information on the Pacific Coast WSP distinct population segment listing is available.

The report cited by the USACE documents a Utah-banded snowy plover at an Orange County beach during the nonbreeding season (project-related observation period was from September 27, 2009, to October 29, 2009) (Ryan and Hamilton 2009, unpublished report). Our understanding is that the snowy plover banding in Utah was done during the end of the breeding season, on July 22, 2009 (F. Bidstrup, pers. comm. 2012). Few, if any, snowy plovers are present in Utah during the nonbreeding season (Paton 1995, p. 277). Interior-nesting snowy plovers are migratory, and are well documented overwintering along the Pacific Coast (71 FR 20607; April 21, 2006). Generally, interior-nesting snowy plovers begin to appear along the Pacific Coast in mid- to late-July. In the 12-month finding, we cite instances of coastal-breeding snowy plovers nesting at interior sites, but acknowledge that this type of occurrence is rare based on banding records (71 FR 20607; April 21, 2006). This interchange in breeders accounts for the fact that there is little genetic difference between interior and coastal- breeding snowy plovers (71 FR 20607; April 21, 2006). Regardless, because the Pacific Coast WSP is generally a non-migratory population, and because it is ecologically separated from interior-nesting snowy plovers, it meets criteria for listing under our distinct population segment policy (71 FR 20607, April 21, 2006; 61 FR 4721, February 7, 1996) and the Act.

(8)Comment:The USACE stated that some of the areas proposed for designation as critical habitat do not meet the definition of critical habitat. Either the units are heavily used by recreational users, or are adjacent to disturbed areas. The commenter provided site-specific information where they believe designation is inappropriate due to beach nourishment projects at some units.

Our Response:We have determined based on our criteria for designating critical habitat that all the areas designated in this rule are essential either to or for the conservation of the Pacific Coast WSP and meet the definition of critical habitat. However, within each critical habitat unit there may be some areas that do not contain the physical or biological features and therefore would not be considered critical habitat. Due to mapping constraints (e.g.,the scale of the unsuitable areas are too small to be reflected on our maps), we did not remove these areas from this final revised designation. The analysis of effects of dredging and beach nourishment on Pacific Coast WSPs and their habitat is part of the section 7 consultation process under the Act. Effects to designated critical habitat and non-designated areas that are affected by the Federal action will be assessed under that process, as well as other effects to Pacific Coast WSPs.

Disturbance by recreational users and other sources will also be evaluated through the section 7 process where there is a Federal nexus. For areas lacking a Federal nexus, the Service will work with beach and land managers to implement recovery actions that will avoid or offset adverse effects of disturbance. We consider disturbance to be relative, as Pacific Coast WSPs respond differently to disturbance between sites.

(9)Comment:The USACE commented that the maps were easier to follow in the 2005 designation than those in the 2011 revised proposed rule because the 2005 maps provided more detail relative to land marks, such as roads.

Our Response:We appreciate this comment, and have made changes to the maps in this final rule. Specifically, the maps in this revised final rule have more location detail, such as roads, than we provided in the 2011 revised proposed rule. In remote areas where roads are scarce, we added watercourses. We acknowledge that watercourses are dynamic, and they can change with time, but they do provide some ability to locate unit boundaries on the ground.

Department of the Navy

(10)Comment:The Department of the Navy (Navy) commented that portions of two of their installations, Naval Support Area Monterey and Navy at Naval Base Ventura County, Port Hueneme, were included in the revised proposed rule, and requested they be exempted from critical habitat because both installations have an integrated natural resources management plan (INRMP).

Our Response:An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. A Service-approved INRMP is required to exempt a facility from critical habitat designation (refer to section of this rule concerning military exemptions under section 4(a)(3)). In 2001, the Navy completed the INRMP for Naval Support Area Monterey, which includes approximately 8 ac (3 ha) in Unit CA 22, Monterey to Moss Landing. Although the 2001 INRMP was approved by the Service, we determined that it did not address management actions for western snowy plovers and therefore does not meet the requirements for exemption from critical habitat. On March 30, 2012, we received an addendum to the 2001 INRMP; this addendum detailed additional conservation measures the Navy will implement for the Pacific Coast WSP at Naval Support Area Monterey. We have reviewed the addendum and have concluded that the conservation measures identified in the addendum would provide a benefit to the Pacific Coast WSP and its habitat. We approved and signed this addendum on May 24, 2012. As a result we have exempted the approximately 8 ac (3 ha) from Unit CA 22 from the designation under section 4(a)(3) of the Act (see Exemptions section).

The Navy also identified that approximately 0.08 ac (0.03 ha) at Naval Base Ventura County, Port Hueneme, was included in the revised proposed rule. These lands were inadvertently included as part of Unit CA 39 in the revised proposed designation due to a mapping error. The identified 0.08 ac (0.03 ha) of Navy lands within Unit CA 39, Ormond Beach, have been removed in this revised final designation because they are unsuitable habitat and not essential to the conservation of the species.

National Park Service

(11)Comment:The National Park Service noted that critical habitat units for the Pacific Coast WSP were proposed within several units of the National Park system, including: Channel Islands National Park; Golden Gate National Recreation Area; Point Reyes National Seashore; Redwood National and State Parks; and Lewis and Clark National Historic Park. The National Park Service supports the proposed revised designation, and provided general information regarding its management for Pacific Coast WSP at its facilities.

Our Response:We appreciate the National Park Service's comments. No response necessary.

U.S. Forest Service

(12)Comment:The U.S. Forest Service (USFS), Siuslaw National Forest, Oregon, provided information regarding use and boundary descriptions for Units OR 7, OR 8, and OR 9.

Our Response:Lands covered under the OPRD HCP are excluded in this revised final rule. We note the USFS's comments; however, all units have changed with the exception of OR 8A, as a result of the exclusions. Federal lands remain unaffected by the OPRDHCP exclusions, and remain in this final designation.

State Agency Comments

(13)Comment:The OPRD requested that all lands under its HCP be “exempted” (meaning “excluded”) under section 4(b)(2) of the Act, because the OPRD HCP provides adequate management protections, making designation of critical habitat on those lands covered by the HCP redundant.

Our Response:Comment noted. In developing this final revised designation, we have considered OPRD's comments regarding exclusion of the HCP areas, and have conducted the analysis required under section 4(b)(2) of the Act to consider such exclusions (refer to the Exclusions section). As a result of our analysis, we have concluded that the benefits of excluding the lands covered under the OPRD HCP outweigh the benefits of including those areas as critical habitat and as a result the Secretary has used his discretion to exclude these areas under section 4(b)(2) of the Act.

(14)Comment:The California Department of Parks and Recreation (CDPR) provided site information throughout California and pointed out errors in the unit descriptions. CDPR believes some sites proposed for designation are inappropriate, due to disturbance, proximity to campgrounds, recreational off-road vehicle use, and presence of lifeguard facilities.

Regarding Oceano Dunes State Vehicular Recreation Area (SVRA), CDPR acknowledged that the critical habitat designation would have little effect on day-to-day operations of Oceano Dunes SVRA and would not affect management activities for the Pacific Coast WSP. However, CDPR also stated that a critical habitat designation would increase administrative costs and implied that a critical habitat designation would require restoration of degraded habitat in Oceano Dunes SVRA.

CDPR stated that designation of the “riding area” of Oceano Dunes SVRA as critical habitat would be inappropriate because the riding area is degraded, used for recreation, and unoccupied by the western snowy plover. CDPR requested that the riding and camping areas be excluded from the critical habitat designation under section 4(b)(2) of the Act, because those areas (1) do not contain the physical or biological features essential for the western snowy plover, and (2) are covered by a management plan that provides conservation value greater than what would be provided by a critical habitat designation.

Our Response:The general comments from CDPR on the unit description errors were noted and incorporated into this revised final rule.

We agree with CDPR that a critical habitat designation should have little, if any, effect on day-to-day operations at Oceano Dunes SVRA and should not affect management activities for the Pacific Coast WSP unless a future project in Oceano Dunes SVRA would be authorized, funded, permitted, or carried out by a Federal agency.

We agree that portions of Oceano Dunes SVRA are degraded by recreation activities; however, habitat degradation does not preclude us from designating an area as critical habitat if the area contains physical or biological features essential to the conservation of the species and otherwise meets the definition of critical habitat. Also, annual surveys by CDPR and other groups have documented the species (in relatively large numbers) using Oceano Dunes SVRA in both breeding and wintering seasons. The use of areas for recreational activities does not preclude the use of the area by the Pacific Coast WSP. For example, the Silver Strand State Beach area identified as critical habitat (Unit CA 55B), as well as other high recreational use areas, plays an important role in Pacific Coast WSP conservation. We have determined that these areas are essential because they provide adequate space for high-tide roosting and foraging opportunities, especially during low human-use periods and during the winter. These areas may provide an even greater conservation value as habitat conditions shift and adaptive management strategies are implemented.

The DEA accompanying the proposed critical habitat rule determined that Oceano Dunes SVRA would incur some increase in administrative cost as a result of being included in critical habitat. These costs would be associated with coordination with a Federal agency during consultation under section 7 of the Act, additional analysis under California Environmental Quality Act (CEQA), or critical habitat analysis in the Oceano Dunes SVRA HCP. However, the DEA did not identify any disproportionate costs to the Oceano Dunes SVRA likely to result from a critical habitat designation.

The recovery plan for the Pacific Coast WSP (Service 2007) states that, because of the dynamic nature of western snowy plover habitat, the physical or biological features and specific primary constituent elements (PCEs) for the species may be seasonally variable or lacking. Accordingly, one or more PCEs may be absent during certain seasons. That said, a critical habitat unit is not required to contain all PCEs to qualify for designation. The implementing regulations for section 4 of the Act (50 CFR 424.12(d)) state that when several habitats, each satisfying the requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat. Portions of that inclusive area may not contain any or all PCEs. The Oceano Dunes SVRA is located within unit CA-31, and contains at least one PCE (open landscapes) year round, and may seasonally contain two other PCEs (frequency of inundation and organic debris). We have determined that Oceano Dunes SVRA plays an important role in conservation of the western snowy plover. That role may increase due to climate-related changes, including sea-level rise. We maintain that Oceano Dunes SVRA is essential to the conservation of the Pacific Coast WSP.

Lastly, we recognize that the CDPR intensively manages habitat for the Pacific Coast WSP at Oceano Dunes SVRA. We also recognize the difficult balance between the Oceano Dunes SVRA use-mandate and conservation of sensitive species. However, justification of exclusion from critical habitat is not solely based on conservation measures provided by a management plan but on how the benefits of exclusion from critical habitat compare to the benefits of inclusion. We recognize that the CDPR at Oceano Dunes SVRA have been implementing measures to conserve the Pacific Coast WSP and conditions have improved somewhat for the Pacific Coast WSP in critical habitat unit CA-31. We value our current partnership with the CDPR in conserving sensitive species and their habitats; however, after considering the relevant impacts being incurred by the Pacific Coast WSP, we did not conclude that the benefits of excluding Oceano Dunes SVRA lands in unit CA-31 outweigh the benefits of including those lands as critical habitat. In addition, as mentioned in the CDPR comment letter, the CDPR is experiencing severe funding limitations. Consequently, the CDPR may not be able to guarantee that the Oceano Dunes SVRA management plan will be implemented in the future. For these reasons, the Secretary is declining to exercise his discretion to exclude Oceano Dunes SVRA lands from unit CA-31.

Public Comments

The majority of the public comments we received were form letters regarding Oceano Dunes SVRA. The 104 form letters did not provide substantialinformation, and were analogous to a “vote” not to designate critical habitat at Oceano Dunes SVRA. For information on our determination on critical habitat for the Oceano Dunes SVRA, please seeComment14 above.

(15)Comment:Several commenters proposed models other than the ones we used relative to sea-level rise. We also received comments challenging the likelihood of sea-level rise. Some commenters stated that sea-level rise could not be attributed to human-caused actions and that we should not be managing for an impact (i.e.,sea-level rise) that might not occur. Others commenters stated that there is no “global warming” occurring, and that the Service is not considering the best science available.

Our Response:The Service considers climate change the single greatest conservation challenge of the 21st century, and as a result we have developed a draft strategic plan to address climate change (Service 2009, pp. 1-32). We acknowledge climate change is a complex issue, and there may be some uncertainty over all the causes and precise manifestations of climate change (seeClimate Changesection above). Given these uncertainties, one objective of this revised final rule is to identify and protect those habitats that we determine will provide resiliency for Pacific Coast WSP in the face of the effects of climate change on habitat. We will undoubtedly have to adapt management approaches as we learn more. We agree that Pacific Coast WPS management actions should stem the impacts of climate change where opportunities to do so exist.

We evaluated the models proposed by the commenters, and in some instances, we acknowledge that these models have more detail, often resulting from site-specific information. However, that site specificity could not be incorporated into a model that would assess the species' habitat rangewide because there is insufficient corresponding data from all sites across the entire range of the Pacific Coast WSP (i.e.,from Washington to the Mexican border in California). Other models proposed by commenters used different parameters than the models we employed, and thus, could not be used consistently. The models we selected reflected conditions across the range for the Pacific Coast WSP. Because we anticipated that use of models would be controversial, we chose to use those developed or accepted by the Department of the Interior.

We intentionally did not address the cause(s) for sea-level rise in our revised proposed rule (76 FR 16046; March 22, 2011), as it is subject to debate in many forums outside this critical habitat designation process. However, there are ample data to support that sea-level rise is occurring, and it will continue into the future. The models we used provide perspective on the extent and time at which we can expect sea-level rise to occur (refer toClimate Changesection above).

(16)Comment:Two commenters questioned the need to list the Pacific Coast WSP as threatened.

Our Response:As noted above in response to Comment 7, this finding does not address whether the Pacific Coast WSP should be listed, but rather concerns whether revisions should be made to critical habitat for the Pacific Coast WSP. See 71 FR 20607 (April 21, 2006) for information on the listing of the Pacific Coast WSP.

(17)Comment:Three commenters believe that we underestimate the impacts of predation, and overstate the effects of human-caused disturbance.

Our Response:Predation is a leading cause of Pacific Coast WSP adult, chick, and egg mortality; however, the significance of predation varies by site. With the influx of common ravens to Santa Barbara, San Luis Obispo, Monterey, and Santa Cruz Counties to coastal habitat since the late 1990s, predation pressure has increased in some areas. Predator management, both nonlethal and lethal, has been effective at many sites. Predator management is generally considered a recovery action, outside the process for designating critical habitat (Pageet al.2008, pp. 1-11).

Regarding human disturbance and effects to Pacific Coast WSP, there is a relationship between human beach use and predation. Disturbance associated with human beach use can result in Pacific Coast WSPs flushing from their nest. When this occurs, the birds leave tracks in the sand, and those foot tracks can lead predators to the nest and result in egg loss. Also, unmanaged or poorly managed trash associated with a variety of uses, including recreational use, can also attract potential predators to beach habitats. Gulls, ravens, and crows are known Pacific Coast WSP predators and are good examples of species that are attracted to areas with improper trash management practices. Outreach and education focusing on these human-associated concerns will assist in reducing predator interaction with the Pacific Coast WSP.

Pacific Coast WSPs can withstand some disturbance. Their tolerance to disturbance will vary by site (see our response to Comment 18 below), and may vary by the individual experience of a single bird. Disturbance can come from both predators and human-caused sources.

(18)Comment:Comments regarding the primary constituent elements (PCEs) were wide-ranging. Some commenters stated that the “minimal disturbance” element limited the Service's selection of potential units, while other commenters asserted that several units should not be designated due to too much disturbance. One commenter suggested that “minimal disturbance” is better considered under Special Management Considerations.

Our Response:We generally consider that there are three generalized threats, or limiting factors, to conservation and recovery of the Pacific Coast WSP. Specifically, we consider limiting factors to conservation to be: (1) Predation; (2) habitat loss and degradation; and (3) disturbance. These three factors may vary in importance by site, and their sequence here should not indicate a priority or level of importance.

For the Pacific Coast WSP, there are natural and human-caused disturbances that affect the species and its habitat. Pacific Coast WSPs respond differently to disturbance depending on the type of disturbance, its frequency, and the timing of the disturbance. By way of example, breeding Pacific Coast WSPs appear to be more sensitive to disturbance than wintering plovers. Pacific Coast WSPs are more likely to flush from, or abandon, a nest during the early incubation stages. They are less likely to abandon a nest as eggs approach hatching, presumably because a significant time has been spent incubating and defending the nest. Human presence at isolated beaches on Vandenberg Air Force Base, for example, can result in Pacific Coast WSPs flushing at a greater distance than plovers at Oceano Dunes SVRA, where they are subject to greater disturbance and have the ability to “habituate.” Vandenberg and Oceano Dunes SVRA are only approximately 30 mi (48 km) apart. Consequently, disturbance is “relative” to site conditions. Minimal disturbance is a PCE because it is a component of a unit's suitability and should be considered in Pacific Coast WSP conservation, and therefore, in critical habitat designation. The amount, timing, and extent of disturbance may be best addressed as a special management consideration. We considered sites with a range of disturbance, and each site designated is regionally important.

(19)Comment:One commenter stated that the Service is constraining critical habitat protection by using criteria notconsistent with the Act. Specifically, use of criteria other than the PCEs limits the Service's ability to designate habitat.

Our Response:Stating our selection criteria and methods is necessary for public disclosure (refer toMethods Used to Designate Critical HabitatandPhysical and Biological Featuressections). The selection criteria relate to how we determine where the PCEs, or elements of physical and biological features that are essential to the conservation of the Pacific coast WSP, are on the landscape. Therefore, our selection criteria define how we determined “essential areas” for designation of critical habitat.

(20)Comment:One commenter suggested that we include habitat buffers in our designation.

Our Response:The Act does not provide for us to designate buffer habitat. We are directed by section 4 of the Act to designate only those specific areas determined to be either essential to or for the conservation of the species. The areas identified as critical habitat within units that are not occupied, and may be unsuitable at the present, still meet the definition of critical habitat as they will play a role in Pacific Coast WSP conservation as sea-level rise occurs. These areas are not considered buffers.

(21)Comment:One commenter raised issues with the increase in unit size on their lands from the 2005 designation. Other landowners that are within proposed critical habitat units, but have property at some distance from the water's edge, questioned the need to designate their properties as critical habitat for the Pacific Coast WSP.

Our Response:In many instances, the units are wider in this rule than designated in 2005, because we anticipate sea-level rise and want to ensure there remains adequate critical habitat following inundation. It is difficult to determine where the effects of sea-level rise will be the most significant, because we expect beach morphology or habitat characteristics to change. Inland expansion of unit boundaries (generally eastward) beyond those in the 2005 designation are expected to offset potential adverse effects of sea-level rise.

Our maps and unit descriptions indicate a westward increase in unit boundaries for this rule in many cases. The inclusion of the intertidal zone is a function of better mapping and the updated National Agriculture Imagery (NAIP) used for this rule, as well as our desire to use the “water's edge” as a boundary. The intertidal zone plays an important role in providing the physical and biological features of most of the designated units. As a consequence, the intertidal zone is included in our designation where appropriate. Having the water's edge as the westward, or ocean-side boundary, gives a clear demarcation of the unit boundary when actually visiting the site.

Other expansions of unit boundaries beyond those in the 2005 designation occurred as a result of using new information that better identifies the physical or biological features essential to Pacific Coast WSP. Thus, the new unit boundaries were drawn using the best scientific information available to the Service.

(22)Comment:Two commenters believe the Service violated both the Act and Administrative Procedure Act by failing to adequately detail the difference in the revised proposed rule over the 2005 designation.

Our Response:In the revised proposed rule, we outlined our methods and explained differences between the prior September 2005 final rule and the March 2011 revised proposed rule in the Summary of Changes From Previously Designated Critical Habitat section (76 FR 16054; March 22, 2011). We changed the methods used to designate critical habitat because of the need to address sea-level rise and provide conservation of the species and its habitat based on the 2007 Recovery Plan for the species. These changes resulted in the proposed revision to designated critical habitat and the proposed designation of additional areas as critical habitat, and in some cases, a proposed expansion in the size of areas designated in 2005.

We also reviewed the areas excluded from the 2005 final critical habitat designation based upon section 4(b)(2) of the Act. Our March 22, 2011, revised proposal of critical habitat did not include any proposed exclusions, but we did request public comment as to whether any specific areas being proposed as revised critical habitat should be excluded under section 4(b)(2) of the Act. Based on comments received on the 2011 revised proposed rule and our analysis conducted pursuant to the Act, in this revised final designation we have excluded several areas (seeApplication of Section 4(b)(2) of the Actand Exclusions sections below). Because of these exclusions and other modifications to various units, as described elsewhere in this rule, the areas included in this final revised critical habitat designation differ from those proposed in March 2011. The methodology and process used to calculate acreage was discussed in the proposed revised rule (and herein), and there has been no deviation from that process.

(23)Comment:Two commenters believed the Service violated the Administrative Procedure Act and the Act by failing to provide adequate notice of the extent of critical habitat. Specifically, commenters believe the maps provided in the revised proposed rule were inadequate.

Our Response:The critical habitat maps are coarse, compared to detailed land ownership. However, the Geographical Information System (GIS) layers for the unit polygons were posted on the Arcata Fish and Wildlife Office Web site, and were available for downloading during the public comment periods. The availability of the GIS data complies with both the Administrative Procedure Act and the Act. We notified landowners, informing them that critical habitat was being proposed for designation on lands in coastal areas from Washington to southern California. Because of the scale of the revised proposed designation, some individual landowners may have been missed, but we made a good faith effort to reach all those that could be identified at the time of the proposal. We also were available upon request to go over maps as needed and were directly contacted by several landowners that sought clarification of ownership during the open public comment periods.

(24)Comment:Two commenters stated that the Service failed to adequately explain why retaining all previously designated critical habitat is essential.

Our Response:By court settlement, the Service agreed to conduct a rulemaking to consider potential revisions to the 2005 critical habitat designation. OurMethodsandCriteria Used To Identify Critical Habitatsections in the 2011 revised proposed rule explain how we selected areas essential to and for the conservation of the species. The methods applied in 2011 were similar to those used in the 2004 proposed rule and 2005 final rule. Each unit in this designation contains a description explaining how it meets the Act's definition and our criteria for designation as critical habitat.

Our revised final designation varies from the 2005 rule. There are exclusions and exemptions in this revised final rule that were not in the previous rule (refer to our sections on Summary of Changes from the Revised Proposed Rule).

(25)Comment:Two commenters suggested that the Service violated the Act by proposing units that were not occupied at the time of listing.

Our Response:Critical habitat is defined under section 3 of the Act as (1) the specific areas within thegeographical area occupied by a species, at the time it was listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species, and (b) which may require special management considerations or protection; and (2) the specific areas outside the geographical area occupied by a species at the time it was listed, upon a determination that such areas are essential for the conservation of the species. Some units are designated based on this second prong; these units, such as WA 1, were not occupied at the time of listing but have been determined to be essential for the conservation of the species.

In addition, some units included in this designation may not be occupied year-round. However, they are essential for conservation because they constitute important wintering sites where breeding does not occur, or important breeding sites. Unit CA 9 is an example of a unit designated for its importance as wintering site.

Unit OR 12 is designated because, although it is unoccupied, it serves an essential role in conservation by connecting other units and thus facilitating Pacific Coast WSP movement from site to site depending on habitat availability, allowing additional foraging or wintering opportunities. This site is expected to play an important role as sea-level rise inundates other sites. The site is identified in the 2007 Recovery Plan as a recovery site.

(26)Comment:One commenter stated that the Service violated the Information (Data) Quality Act because the revised proposed rule is not clear regarding the science used to develop the rule.

Our Response:The revised proposed rule, and this final revision to critical habitat, are in fact clear in describing the science used to develop the rule. In ourBackgroundand Critical Habitat—Methods Used to Designate Critical Habitatsections, we discuss the types of information used to develop the designation, as well as the models, mapping techniques, and other materials used to develop the revised proposed rule. We selected models and data that could be consistently used throughout the Pacific Coast WSP's range, and avoided site-specific models and data that would be more difficult to obtain.

(27)Comment:One commenter stated that the public should be able to review input from peer reviewers.

Our Response:Peer review is conducted concurrently with the public comment period. Peer reviewers are provided the same information as the public; however, because of their experience with the species or similar species, they are asked to provide a detailed review. Typically, their response is provided by the closing date of the public comment period; therefore, there is no opportunity for the public to comment on peer-review input. Peer-reviewer input has been summarized in this rule, but the full text is available upon request at the Arcata Fish and Wildlife Office (seeADDRESSESsection).

(28)Comment:Some commenters provided Pacific Coast WSP use information for sites that were not proposed for designation. Specifically, sites in Oregon and the Monterey Bay region of California were referenced. Commenters felt that the Service did not fully consider all sites, stating that the omitted sites provide connectivity and thus value to critical habitat.

Our Response:We proposed sites that have regional and rangewide importance. Many sites in northern California have comparatively little Pacific Coast WSP use relative to sites both to the north and to the south. However, we are designating those sites because of the large gap in breeding and wintering Pacific Coast WSPs from southern Sonoma County, California, to New River in Oregon. The fluctuation in the breeding population and the connectivity value of the sites within a large gap in the Pacific Coast WSP's range justifies their inclusion in designation.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species.

(29)Comment:A commenter in Washington expressed concern that beach nourishment at Shoalwater Bay by the USACE would impact designated critical habitat. Additional, detailed information was provided by another commenter during the second comment period for the same unit, related to the USACE's beach nourishment project.

Our Response:These comments raise issues related to section 7 of the Act, which requires that Federal agencies ensure that their actions do not j