Daily Rules, Proposed Rules, and Notices of the Federal Government
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 the
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. 1531
In our January 17, 2012,
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).
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 (
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 (Cayan
For the Pacific Coast WSP and other shorebird habitat, Galbraith
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.
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 (
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 the
On October 2, 2008, the Center for Biological Diversity challenged our 2005 critical habitat designation (70 FR 56970; September 29, 2005) (
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),
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
The majority of the public comments we received were form letters regarding Oceano Dunes SVRA. The 104 form letters did not provide substantial
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 (
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 to
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.
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.
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.
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 (see
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).
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.
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.