Questions and Answers
Piping Plover Critical Habitat Designation
The U.S. Fish and Wildlife Service (Service) is designating critical habitat in parts of Minnesota, Montana, North Dakota, South Dakota, and Nebraska for the northern Great Plains breeding population of piping plover, an imperiled shorebird.
Following are some frequently asked questions about the designation.
What is critical habitat?
Critical habitat is a term used in the Endangered Species Act. It refers to specific geographic areas that are essential for the conservation of a threatened or endangered species and which may require special management considerations. These areas do not necessarily have to be occupied by the species at the time of designation.
What types of habitat have been designated?
Designated areas of critical habitat include prairie alkali wetlands and surrounding shoreline; river channels and associated sandbars and islands; and reservoirs and inland lakes and their sparsely vegetated shorelines, peninsulas, and islands. These areas provide primary courtship, nesting, foraging, sheltering, brood-rearing and dispersal habitat for piping plovers.
The Service designated only those lands that we determined were essential to the ploverís conservation based on the best scientific information currently available.
What proposed areas have been excluded from the designation?
The Service has excluded a total of 13,154.5 acres and 130.5 river miles originally proposed as critical habitat in June 2001:
Do listed species in critical habitat areas receive more protection?
An area designated as critical habitat is not a refuge or special conservation area; and it only affects activities with Federal involvement. Listed species and their habitat are protected by the Endangered Species Act whether or not they are in an area designated as critical habitat. The Act requires federal agencies to consult with the Service on actions they carry out, fund, or authorize that may adversely modify that critical habitat.
However, even when there is no critical habitat designation, federal agencies must consult with the Service whenever they carry out, fund, or authorize any activity that could potentially jeopardize a listed species.
What does a critical habitat designation mean to a private landowner?
A critical habitat designation does not affect situations where a federal agency is not involved -- for example, a landowner undertaking a project on private land that involves no federal funding or permit.
How will this critical habitat designation for piping plover affect use of my personal property? Will this result in any taking of my property?
The designation of critical habitat on privately-owned land does not mean the government wants to acquire or control the land. Activities on private lands that do not require Federal permits or funding are not affected by a critical habitat designation. Critical habitat does not require landowners to carry out any special management actions or restrict the use of the land. However, the Act prohibits any individual from engaging in unauthorized activities that will actually harm listed species.
If a landowner needs a Federal permit or receives Federal funding for a specific activity, the agency responsible for issuing the permit or providing the funds would consult with the Service to determine how the action may affect the piping plover or its designated critical habitat. We will work with the Federal agency and private landowner to modify the project to minimize the impacts.
What does this critical habitat designation mean to tribes?
Any adverse effects that this critical habitat designation might have on tribal trust resources, tribally-owned fee lands, or the exercise of tribal rights was taken into consideration before the final decision was made.
Six tribes including the Assiniboine and Sioux Tribes of Ft. Peck, Montana; the Standing Rock Sioux Tribe, and Three Affiliated Tribes (Mandan, Hidatsa, and Arikara Tribes) of the Ft. Berthold reservation, in North Dakota; the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe in South Dakota and the Santee Sioux Tribe of Nebraska have land or tribal trust land within the designation. The designation of these areas shows the importance of and role of Tribes in the recovery of this species. We would not be designating critical habitat on Tribal lands unless it was determined essential to conserve the species. The Service believes this designation is consistent with the special trust responsibility the Federal government has to Indian people to preserve and protect their lands and resources. The Service will continue to work with Tribes on piping plover recovery.
This designation does not affect tribal water rights as this designation does not exercise a water right on the river nor create a property right. Section 7 consultations involving Tribes would not significantly increase as section 7 consultations on lands designated already occur due to the listing of the species.
How will the designation of critical habitat affect existing and future water rights? How will it affect me as a water user?
It should not. Critical habitat designation does not modify nor nullify any existing State water laws, compact agreements, or treaties. The need to consult on development activities occurred when the endangered species was listed, not with the designation of critical habitat.
Will this designation of critical habitat affect Federal agencies that undertake, permit or fund projects?
Because Federal agencies are already required to consult on actions that may affect piping plovers, we anticipate little or no additional regulatory burden will be placed on Federal agencies as a result of a designation of critical habitat.
Do Federal agencies have to consult with the Service outside critical habitat areas?
Even when there is not critical habitat designation, Federal agencies must consult with the Service, if an action that they fund, or authorize, or permit may adversely affect listed species.
How are State lands affected by the critical habitat designation for the piping plover?
Non-Federal activities are not affected by critical habitat designation. Designation of critical habitat requires Federal agencies to review activities they fund, authorize, or carry out, to assess the likely effects of the activities on critical habitat.
What impact will this critical habitat designation have on recreational uses of the reservoirs, rivers and lakes?
If beach-side recreation affects piping plover breeding activities, the Service will work with the responsible State, Tribal or Federal agency to protect potential breeding sites while having as minimal effect as possible on human enjoyment of the areas. The Corps of Engineers, in cooperation with States and the Fish and Wildlife Service have been restricting recreational use of certain plover nesting areas on the Missouri River and associated reservoirs for several years. Nesting sites are posted and roped off to protect nesting birds. These restrictions affect a very small percentage of available recreational areas.
How will this critical habitat designation affect local economic development?
Approximately 99.9% of all economic projects that require a consultation with the U.S. Fish and Wildlife Service proceed with little or no modification. In most cases, resolutions are identified that will avoid harm to the species and habitat and the projects proceed forward.
Because many federal actions already take into account speciesí habitat needs, there should be little effect beyond that which is already being considered. The Addendum to the draft economic analysis addresses potential impacts on small entities (businesses, governments, non-profit organizations). Costs associated with the consultation itself were found to be relatively minor, with third party costs estimated to range from $1,200 to $4,100 per consultation. Therefore, small entities are unlikely to be significantly affected by consultations that do not involve costly project modifications.
Does the act require an economic analysis as part of designating critical habitat?
Yes. The Service must take into account the economic impact of specifying any particular area as critical habitat. The Service may exclude any area from designation if it determines that the benefits of such exclusion outweigh the benefits of designation, unless it determines that failure to designate the area as critical habitat will result in the extinction of the species.
Is an economic analysis required when a species is added to the list of threatened and endangered species?
No. Under the ESA, a decision to list a species is made solely on the basis of biological data and analysis.
What were the conclusions of the economic analysis for the piping plover critical habitat designation?
The final addendum to the economic analysis determined that there are no significant economic impacts from the designation of critical habitat for the piping plover. The analysis looked at the incremental economic impacts from critical habitat above and beyond the impacts already resulting from the listing of the plover. Total annual section 7 consultation costs were estimated for the next 10 years at $2,347,800 per year. Of this total a maximum of approximately $32,600 per year would be due to designation of critical habitat for the piping plover. It is this amount ($32,600) that would be avoided were there no critical habitat designation for the species.
What are the benefits of a critical habitat designation?
Designation of critical habitat can help focus conservation activities for a listed species by identifying areas that contain the physical and biological features that are essential for the conservation of the species. A critical habitat designation alerts the public as well as land managing agencies to the importance of these areas, but the Act only imposes additional restrictions on the actions or programs that are authorized, funded, permitted, or carried out by a federal agency.
How does the designation of critical habitat affect the November 2000 biological opinion on the operations of the Missouri River ?
The Service will address designated critical habitat during the ongoing section 7 consultation with Corps on the Missouri River master manual.
What activities could adversely affect critical habitat?
Some activities could have an adverse effect on piping plover critical habitat. Such activities might include:
Why did the court order the service to designate critical habitat for the piping plover?
Section 4(a)(3) of the Endangered Species Act states that when the Service adds a species to the endangered species list, it must designate critical habitat "to the maximum extent prudent." This section makes it clear that Congress expected the Service to routinely designate critical habitat. History shows that judicial decisions have been based on a strict interpretation of this section of the Act resulting in a requirement that the Service complete critical habitat designations.
Why wasnít critical habitat designated when the piping plover was listed?
The Service has given designation of critical habitat the lowest priority in the listing process because it is expensive, time-consuming, and usually offers relatively little conservation benefit. Because of limited financial and staffing resources, the Service has given higher priority to more effective approaches to species recovery.
For how many species has the service designated critical habitat?
As of August 2002, the Service had designated critical habitat for 155 of the 1,261 species listed as threatened or endangered.
Why hasnít the service designated critical habitat for more species?
After a Congressional moratorium on listing news species ended in 1996, the Service faced a huge backlog of species needing to be proposed for listing as threatened or endangered. For this reason, we have assigned a relatively low priority to designating critical habitat because we believe that a more effective use of our limited staff and funding has been to place imperiled species on the List of Endangered and Threatened Species.
Additionally, the critical habitat designation usually affords little extra protection to most species and in some cases it can result in harm to the species. This harm may be due to negative public sentiment to the designation, to inaccuracies in the initial area designated, and to the fact that there is often a misconception among other Federal agencies that if an area is outside of the designated critical habitat area, then it is of no value to the species.
Did the public have an opportunity to comment on the critical habitat designation?
Yes. The Service published a proposed critical habitat designation for the piping plover in the Federal Register by June 2001 to comply with the court order. The comment period was open several times for a total of 150 days. Public meetings were also be held to obtain comments.
Where can I get more information on the piping plover and critical habitat?
For more information, visit our web site at http://mountain-prairie.fws.gov/species/birds/pipingplover. You may also telephone the following Service Field Offices:
Pierre, South Dakota: 605-224-8693 ext. 32
Bismarck, North Dakota: 701-355-8506
Billings, Montana: 406-247-7366
Grand Island, Nebraska: 308-382-6468 ext. 25
Bloomington, Minnesota: 612-725-3548 ext. 206
Updated as of August 28, 2002
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