[Federal Register: May 20, 2008 (Volume 73, Number 98)]
[Proposed Rules]
[Page 29293-29321]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my08-27]
[[Page 29293]]
-----------------------------------------------------------------------
Part III
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Wintering Population of the Piping Plover
(Charadrius melodus) in Texas; Proposed Rule
[[Page 29294]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2008-0055; 92210-1117-0000-FY08-B4]
RIN 1018-AV46
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Wintering Population of the
Piping Plover (Charadrius melodus) in Texas
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate revised critical habitat for the wintering population of the
piping plover (Charadrius melodus) in 18 specific units in Texas under
the Endangered Species Act of 1973, as amended (Act). In total,
approximately 138,881 acres (ac) (56,206 hectares (ha)) fall within the
boundaries of the proposed revised critical habitat designation. The
proposed revised critical habitat is located in Cameron, Willacy,
Kenedy, Kleberg, Nueces, Aransas, Calhoun, Matagorda, and Brazoria
Counties, Texas. Other previously designated critical habitat for the
wintering piping plover in Texas or elsewhere in the United States is
unaffected by this proposal.
DATES: Send your comments on or before July 21, 2008. We must receive
requests for public hearings, in writing, at the address shown in the
FOR FURTHER INFORMATION CONTACT section by July 7, 2008.
ADDRESSES: You may submit comments by one of the followingmethods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R2-ES-2008-0055; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on http:/
/www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Allan Strand, Field Supervisor, U.S.
Fish and Wildlife Service, Corpus Christi Ecological Services Office,
6300 Ocean Drive, TAMU-CC, Unit 5837, Corpus Christi, TX 78412-5837;
telephone 361-994-9005; facsimile 361-994-8262. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) The reasons we should or should not designate habitat as
``critical habitat'' in the 19 court-vacated units and adjacent areas
in Texas under section 4 of the Act (16 U.S.C. 1531 et seq.), including
whether there are threats to the species from human activity, the
degree of which can be expected to increase due to the designation, and
whether that increase in threat outweighs the benefit of designation
such that the designation of critical habitat is not prudent.
(2) Specific information on:
The amount and distribution of wintering piping plover
habitat in the 19 court-vacated units and areas adjacent to those 19
units in Texas, and
What areas occupied at the time of listing, but located
within or adjacent to these specific units, are essential to the
conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed amended critical
habitat.
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities, and the benefits of including or excluding
areas that exhibit these impacts.
(5) The appropriateness of the possible exclusion of approximately
28,474 acres (ac) (11,523 hectares (ha)) of wintering piping plover
habitat from the final designation based on the benefits to the
conservation of the species and its habitat provided by the
Comprehensive Conservation Plans (CCPs) being drafted for National
Wildlife Refuge (NWR) lands (see the Areas Considered for Exclusion
Under Section 4(b)(2) of the Act section for further discussion).
Specifically:
(a) The benefits to the conservation of the species provided by a
CCP;
(b) How the CCPs address the physical and biological features in
the absence of designated critical habitat;
(c) The specific conservation benefits to the wintering piping
plover that would result from designation;
(d) The certainty of implementation of the CCPs; and
(e) The benefits of excluding from the critical habitat designation
the areas covered by the CCPs.
We are particularly interested in knowing how existing or future
NWR partnerships may be positively or negatively affected by a
designation, or through exclusion from critical habitat;
(6) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
(7) Whether there are areas we previously designated, but are not
proposing for revised designation here, that we should include in our
critical habitat designation.
(8) The existence of any conservation or management plans being
implemented by public or private land management agencies or owners on
lands proposed for designation that we should consider in connection
with possible exclusion of those lands from the designation under
section 4(b)(2) of the Act. Please include information on any benefits
(educational, regulatory, etc.) of including or excluding lands from
this proposed designation. We are interested in knowing how
partnerships may be positively or negatively affected by a designation,
or through exclusion from critical habitat, and costs and other
relevant impacts associated with the designation.
(9) Any foreseeable impacts on energy supplies, distribution, and
use resulting from the proposed designation and, in particular, any
impacts on seismic studies for oil and gas drilling, and the benefits
of including or excluding areas that exhibit these impacts.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the website. If you submit a hardcopy comment that includes personal
identifying information, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we
[[Page 29295]]
used in preparing this proposed rule, will be available for public
inspection on http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Corpus
Christi Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
designating revised critical habitat in this proposed rule. For more
information on piping plover wintering critical habitat, refer to the
final rule designating critical habitat for the wintering population of
the piping plover published in the Federal Register on July 10, 2001
(66 FR 36038).
The piping plover is a small, pale-colored shorebird that breeds in
three separate areas of North America: the Northern Great Plains, the
Great Lakes, and the Atlantic Coast. The piping plover winters in
coastal areas of the United States from North Carolina to Texas, along
the coast of eastern Mexico, and on Caribbean islands from Barbados to
Cuba and the Bahamas (Haig and Elliott-Smith 2004, p. 2). Information
from observation of color-banded piping plovers indicates that the
winter ranges of the breeding populations overlap to a significant
degree. Therefore, we cannot determine the source breeding population
of a given wintering individual in the field unless it has been banded
or otherwise marked.
Piping plovers begin arriving on the wintering grounds in July,
with some late-nesting birds arriving in September. A few individuals
can be found on the wintering grounds throughout the year, but
sightings are rare in late May, June, and early July. In late February,
piping plovers begin leaving the wintering grounds to migrate back to
breeding sites. Northward migration peaks in late March, and by late
May most birds have left the wintering grounds (Haig and Elliott-Smith
2004, p. 4). Individual plovers tend to return to the same wintering
sites year after year as evidenced by multi-year observations of
uniquely marked individuals (Nicholls and Baldassarre 1990; Drake
1999a).
Wintering plovers are dependent on a mosaic of habitat patches, and
move among these patches depending on local weather and tidal
conditions. One study by Drake (1999a) monitored the movement of 48
piping plovers in south Texas for one season. She found that these
birds had a mean home range of 3,117 ac (1,262 ha). Drake (1999a) also
noted that the mean linear distance moved per individual bird was 2
miles (mi) (3.3 kilometer (km)) from the fall through the spring. A
complete description of the biology and ecology of the piping plover
can be found in Haig and Elliott-Smith (2004).
Previous Federal Actions
The piping plover was listed as endangered in the Great Lakes
watershed and threatened elsewhere within its range on December 11,
1985 (50 FR 50726). All piping plovers on migratory routes outside of
the Great Lakes watershed or on their wintering grounds are listed as
threatened under the Act due to the difficulty of knowing where they
bred or were hatched.
On July 10, 2001, we designated 137 areas along the coasts of North
Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi,
Louisiana, and Texas as critical habitat for the wintering population
of the piping plover (66 FR 36038). This designation included
approximately 1,798 mi (2,892 km) of mapped shoreline and approximately
165,211 ac (66,881 ha) of mapped areas along the Gulf and Atlantic
coasts and along margins of interior bays, inlets, and lagoons.
In February 2003, Dare and Hyde Counties, North Carolina, and the
Cape Hatteras Access Preservation Alliance challenged the designation
of four critical habitat units on the Cape Hatteras National Seashore,
North Carolina. A November 1, 2004, court opinion vacated and remanded
these units for reconsideration (Cape Hatteras Access Preservation
Alliance v. U.S. Department of the Interior (344 F.Supp.2d108(D.D.C.
2004)). On June 12, 2006, we published a proposed rule in the Federal
Register (71 FR 33703) to amend the Service's critical habitat
designation in North Carolina. We anticipate publishing a final
designation in late 2008.
The Texas General Land Office (GLO) filed suit on March 20, 2006,
challenging our designation of 19 units of critical habitat along the
Texas coast (Units 3, 4, 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 22, 23,
27, 28, 31, 32, and 33). In a July 26, 2006, stipulated settlement
agreement and court order, the court vacated and remanded the
designation for these units to us for reconsideration (Texas General
Land Office v. U.S. Department of the Interior, et al., No. 06-cv-00032
(S.D. Tex.). This proposed rule addresses only those 19 court-vacated
and remanded units (referenced above). It also addresses minor edits to
the regulatory language found in 50 CFR 17.95(b). All other areas
remain as designated in the July 10, 2001, final critical habitat rule
(66 FR 36038), including Texas units 1, 2, 5, 6, 11, 12, 13, 20, 21,
24, 25, 26, 29, 30, 34, 35, 36, and 37.
For information on previous Federal actions concerning the piping
plover, refer to the final listing rule published in the Federal
Register on December 11, 1985 (50 FR 50726), or the final rule
designating critical habitat for the wintering population of the piping
plover published in the Federal Register on July 10, 2001 (66 FR
36038). We are proposing this action in accordance with section 4(b)(2)
of the Act and in compliance with the above-mentioned settlement
agreement and court order.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protections; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow the government or public to access private lands. Such
designation does not require implementation of restoration, recovery,
or enhancement measures by the landowner. Where the landowner seeks or
requests Federal agency funding or authorization that may affect a
listed species or critical habitat, the consultation requirements of
section 7 would apply, but even in the event of a destruction or
adverse modification finding, the landowner's obligation is not to
restore or recover the species, but to implement reasonable and prudent
[[Page 29296]]
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain features that are essential to the conservation of the
species. Critical habitat designations identify, to the extent known
using the best scientific data available, habitat areas that provide
essential life cycle needs of the species (areas on which are found the
primary constituent elements (PCEs), as defined at 50 CFR 424.12(b)),
laid out in the appropriate spatial arrangement essential to the
conservation of the species.
Occupied habitat that contains the features essential to the
conservation of the species meets the definition of critical habitat
only if those features may require special management considerations or
protections. Under the Act, we can designate unoccupied areas as
critical habitat only when we determine that the best available
scientific data demonstrate that the designation of that area is
essential to the conservation needs of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic (shifting spatially over time) and species
may move from one area to another over time. Furthermore, we recognize
that designation of critical habitat may not include all of the habitat
areas that we may eventually determine, based on scientific data not
now available to the Service, 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 now or
may not be required for recovery of the species in the future.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we implement under section 7(a)(1) of the Act. These areas are
also subject to the regulatory protections afforded by the section
7(a)(2) jeopardy standard for Federal agency actions, as determined on
the basis of the best available scientific information at the time of
the agency action. Federally funded or permitted projects affecting
listed species outside their designated critical habitat areas may
sometimes result in jeopardy findings. Similarly, if new information
available to these projects and associated planning efforts calls for a
different outcome, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans, or other species conservation planning efforts.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas occupied at the time of listing
that contain the physical or biological features essential to the
conservation of the wintering population of the piping plover, areas
unoccupied at the time of listing that are essential to the
conservation of the wintering population of the piping plover, or both.
We are not currently proposing any areas outside the geographical area
presently occupied by the species because occupied areas are sufficient
for the conservation of the species.
We have also reviewed available information that pertains to the
habitat requirements of this species. These sources included, but were
not limited to, data in reports submitted during section 7
consultations and by biologists holding section 10(a)(1)(A) recovery
permits, research published in peer-reviewed articles and presented in
academic theses and agency reports, and recovery plans. To determine
the most current distribution of wintering piping plovers in Texas, we
evaluated these areas using wintering piping plover occurrence data
from 1991, 1996, 2001, and 2006 international piping plover winter
population censuses. We considered these data along with other
occurrence data (including presence or absence survey data), research
published in peer-reviewed articles and presented in academic theses
and agency reports, and information received during the development of
the July 10, 2001, designation of critical habitat for the wintering
population of the piping plover (see final rule at 66 FR 36038).
To map bayside areas containing physical and biological features
determined to be essential to the conservation of the species (see
Primary Constituent Elements for the Wintering Population of the Piping
Plover section below), we used data on known piping plover wintering
locations, 1992 National Wetlands Inventory (NWI) data (except for Unit
TX-22 which had 2001 data available) fitted to 2005 National
Agriculture Imagery Program (NAIP) aerial photographs, and regional
Geographic Information System (GIS) coverages that defined shorelines.
The NWI data allowed non-PCEs to be removed from critical habitat
designation and PCEs to be delineated more precisely. Based on their
NWI classification, 10 wetland habitats for the bayside areas met our
definition of PCEs (see Primary Constituent Elements section below).
Their codes and brief descriptions are provided here; for a more
complete description of each wetland habitat, go to http://www.fws.gov/
nwi/mapcodes.htm.
M2USN--Marine (gulfside) sandy coastline (beach), regularly
inundated by tides
M2USP--Marine (gulfside) sandy coastline (beach), irregularly
inundated by tides
E2AB1N--Estuarine (bayside) algal mud or sand flats, regularly
inundated by tides
E2AB1P--Estuarine (bayside) algal mud or sand flats, irregularly
inundated by tides
E2AB3M--Estuarine (bayside) grass flats of mud or sand, irregularly
inundated by tides
E2USM--Estuarine (bayside) sandy shore (beach/sandbar), rarely
exposed by tidal fluctuation
E2USN--Estuarine (bayside) sandy shore (beach/sandbar), regularly
inundated by tides
E2USP--Estuarine (bayside) sandy shore (beach/sandbar), irregularly
inundated by tides
L1UBKhs--Impounded, artificially flooded open water dredge spoil
pit, greater than 20 ac (8 ha)
L2USKhs--Impounded, artificially flooded sandy bottom dredge spoil
pit, greater than 20 ac (8 ha)
We are aware that wintering piping plovers in Texas also use a NWI
wetland
[[Page 29297]]
habitat that is classified as subtidal with rooted vascular vegetation
which is usually five or more species of seagrass. Although that
habitat is classified as subtidal and appears in the NAIP aerial
photographs as such, when portions of it are exposed at very low tides,
wintering plovers forage in them. However, because we are unable to
identify those exposed portions on the aerial photographs, we are
unable to map them and, therefore, we are unable to propose them for
critical habitat designation.
To map the gulfside, we used 2005 NAIP imagery as a base from which
the vegetation and water lines were digitized at a scale of 1:5,000
(using ESRI ArcMap 9.2 software) to produce polygons of critical
habitat. The mean lower low waterline (MLLW) was used as the lower
limit of the intertidal habitat used by wintering piping plovers. Due
to the dynamic nature of the gulfside shoreline, the MLLW vector data
from the National Oceanic and Atmospheric Administration (NOAA) was
often misaligned with the shoreline in the 2005 NAIP aerial
photography. To correct misalignments, we worked with unit TX-3, which
had a well-aligned MLLW line. In that unit, we measured the average
distance from the well-aligned MLLW line to the shoreline in the 2005
NAIP aerial photographs. We took measurements every 328 feet (ft) (100
meters (m)) along unit TX-03, and averaged them. The 184 ft (56 m)
average distance was then used as an estimated MLLW line that was
applied in all coastal (gulfside) areas. The landward limit of the
gulfside critical habitat units was usually defined by densely
vegetated dunes, which do not provide habitat for piping plovers.
We measured the accuracy of the aerial photographs we used by
gathering Global Positioning System (GPS) readings at 29 locations and
plotting them over the photographs to determine how close those photo
points were to actual locations. The offset distance ranged from 10 to
43 ft (3 to 13 m). This information is in the GIS metadata to document
the data's horizontal accuracy.
We included those areas within or adjacent to the 19 court-vacated
units that contain essential physical or biological features along bay
and gulf shorelines for which occurrence data indicate a consistent use
by piping plovers, with observations over two or more wintering seasons
between 1997 and 2007. We have not included the area of Allyn's Bight
(court-vacated unit TX-17) because the PCEs have been reduced to two
small, disjunct fragments that are not of sufficient size and spatial
arrangement for wintering plovers. Therefore, we do not consider the
vacated unit to be suitable for critical habitat designation. Within
the remaining 18 court-vacated units, we also did not include very
small areas (generally less than 5 ac (2.0 ha)) and areas disjunct from
larger polygons containing the PCEs. We are assuming that when these
areas were included in our original designation in 2001, either there
were PCEs present that connected them to the larger polygons of PCEs or
they were included in error because our mapping methodology was not as
precise as the methodology we are using for this proposed revised
designation. As a consequence, some of the units are smaller than when
we originally designated them. In contrast, we expanded the boundaries
of some units to capture complete polygons of PCEs, which we believe
have shifted outside the boundaries we designated originally due to
storms or other natural events. By expanding some boundaries to capture
larger polygons and shrinking other boundaries to remove small and
disjunct polygons, we believe we have provided a sufficient quantity of
critical habitat in the appropriate spatial arrangement for the
wintering population of the piping plover in Texas.
Delineating specific locations for designation as critical habitat
for the wintering population of the piping plover is difficult because
the coastal areas they use are constantly changing due to storm surges,
flood events, and other natural geophysical alterations of beaches and
shoreline. To ensure that areas containing features considered
essential to the piping plover are included in this proposed
designation, the textual unit descriptions in the regulation,
definitively determine whether an area is within the critical habitat
boundary. Our textual descriptions of the boundaries of each unit use
reference points (such as roads or channels), latitude/longitude
coordinates, the edge of a PCE (such as the edge of a sand flat or mud
flat), the MLLW line, or the edge of a management unit (such as a park
or municipality). Within the described boundary for each unit, the unit
itself is restricted to only those areas that are utilized by the
piping plover and contain the physical and biological features needed
(the PCEs). These proposed unit boundaries are static and will not move
over time unless we re-designate the boundaries. Unit boundaries were
drawn to exclude manmade structures, such as roads or cuts to allow
boat traffic. However, bollards, which are small posts placed to
preclude driving on the beach, are not PCEs and we propose to exclude
them from the boundary of critical habitat, although they are too small
to digitally delete from maps at the scale of 1:5,000 that we used to
delineate the critical habitat boundaries. Although we are not
publishing UTM coordinates for the boundaries of the proposed critical
habitat units in this proposed rule, they will be included in the final
rule.
Primary Constituent Elements (PCEs)
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied by
the species at the time of listing to propose as critical habitat, we
consider the physical and biological features that are essential to the
conservation of the species to be the primary constituent elements laid
out in the appropriate spatial arrangement for conservation of the
species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific PCEs required for the wintering population
of the piping plover from the biological needs of the species as
described in the Background section of the final rule designating
critical habitat for the wintering population of the piping plover
published in the Federal Register on July 10, 2001 (66 FR 36038).
Space for Individual and Population Growth and for Normal Behavior
Behavioral observations of piping plovers on the wintering grounds
suggest that they spend the majority of their time foraging (Nicholls
and Baldassarre 1990; Drake 1999a, 1999b). When not foraging, plovers
can be found roosting, preening, bathing, in aggressive encounters with
other piping plovers and other shorebird species, and moving among
available habitat locations (Zonick and Ryan 1996).
The habitats used by wintering birds support these behaviors and
include beaches, mud flats, sand flats, algal flats, spits, and
washover areas. The intertidal sand or mud flats are used by the
plovers for foraging, bathing and
[[Page 29298]]
aggressive encounters and have no or very sparse emergent vegetation.
In some cases, these flats may be covered or partially covered by a mat
of blue-green algae or fine shell. Spits are small points of land,
especially sand, surrounded by water; they are used by wintering
plovers for feeding and roosting. Washover areas, also used for
foraging and roosting, are broad, unvegetated areas on the back side of
sand dunes with little or no topographic relief formed by breaks in the
dunes that are caused and maintained by extreme wave actions.
Unvegetated or sparsely vegetated sand, mud, or algal flats above high
tide are also used, especially for roosting. These sites may have
debris or detritus (decaying organic matter). Some of these components
(sparse vegetation, little or no topographic relief) are mimicked in
artificial habitat types, particularly dredge spoil sites. Although
they are used less commonly by piping plovers, we proposed them for
critical habitat designation when occupancy has been confirmed.
Wintering plovers are dependent on a mosaic of these habitat
patches, and move among them depending on local weather and tidal
conditions. The habitats are found in geologically dynamic coastal
areas that support intertidal beaches and flats (between annual low
tide and annual high tide) and associated dune systems and flats above
annual high tide. The most dynamic of these areas are those that are on
barrier islands or on mainland areas that are not protected by barrier
islands; these areas are adjacent to the Gulf of Mexico. Areas that are
on the barrier islands or mainland and adjacent to the bay between the
barrier islands and mainland are less dynamic.
Food
Primary prey of wintering plovers include polychaete marine worms,
various crustaceans, insects, and occasionally bivalve mollusks
(Nicholls 1989; Zonick and Ryan 1996). Wintering piping plovers peck
for prey from on top of or just beneath the surface. Foraging usually
takes place on moist or wet sand or mud flats, or fine shell that
covers the sand or mud. These substrates may sometimes contain surfcast
algae or be covered by a mat of blue-green algae.
Cover or Shelter
Wintering piping plovers roost and take shelter from storms and
cold weather in backbeach areas that are above mean high tide and
seaward of the dune line, or in cases where no dunes exist, seaward of
a delineating feature such as a vegetation line, structure, or road.
These backbeach areas consist of unvegetated or sparsely vegetated
sand, mud, or algal flats. These flats may have microtopographic relief
(less than 20 in (50 cm) above the substrate surface), which offers
important shelter from high winds, storms, and cold weather.
Primary Constituent Elements for the Wintering Population of the Piping
Plover
Within the geographical area we know to be occupied by the
wintering population of the piping plover, we must identify the primary
constituent elements (PCEs) laid out in the spatial arrangement
essential to the conservation of the species (i.e., essential physical
and biological features) that may require special management
considerations or protections. All areas proposed as critical habitat
units in Texas in this proposed revised rule are currently occupied and
contain sufficient PCEs to support at least one life history function.
In Cape Hatteras Access Preservation Alliance v. U.S. Dept of the
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004), the Court upheld the PCEs
identified in our July 10, 2001, final rule designating critical
habitat for the wintering population of the piping plover (66 FR
36038). Thus, we are not changing PCEs previously identified which
remain based on the best available scientific information. They
constitute the features that are essential for the conservation of
wintering piping plovers along the coasts of North Carolina, South
Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas.
The PCEs in Texas are found in geologically dynamic coastal areas along
the Gulf of Mexico and along the shores of bays linked to the Gulf.
Based on the above needs, our current knowledge of the life
history, biology, and ecology of the species, and the habitat
requirements for sustaining the essential life history functions of the
species on its wintering grounds, we have determined that PCEs for the
wintering population of the piping plover are:
(1) Intertidal sand beaches (including sand flats) or mud flats
(between annual low tide and annual high tide) with no or very sparse
emergent vegetation for feeding. In some cases, these flats may be
covered or partially covered by a mat of blue-green algae.
(2) Unvegetated or sparsely vegetated sand, mud, or algal flats
above annual high tide for roosting. Such sites may have debris or
detritus and may have micro-topographic relief (less than 20 in (50 cm)
above substrate surface) offering refuge from high winds and cold
weather.
(3) Surf-cast algae for feeding.
(4) Sparsely vegetated backbeach, which is the beach area above
mean high tide seaward of the dune line, or in cases where no dunes
exist, seaward of a delineating feature such as a vegetation line,
structure, or road. Backbeach is used by plovers for roosting and
refuge during storms.
(5) Spits, especially sand, running into water for foraging and
roosting.
(6) Salterns, or bare sand flats in the center of mangrove
ecosystems that are found above mean high water and are only
irregularly flushed with sea water.
(7) Unvegetated washover areas with little or no topographic relief
for feeding and roosting. Washover areas are formed and maintained by
the action of hurricanes, storm surges, or other extreme wave actions.
(8) Natural conditions of sparse vegetation and little or no
topographic relief mimicked in artificial habitat types (e.g., dredge
spoil sites).
We have designed this proposed revised designation for the
conservation of the PCEs necessary to support the life history
functions of the species and the areas containing those PCEs in the
appropriate spatial arrangement essential for the conservation of the
species where it winters.
Because not all life history functions require all the PCEs, not
all proposed revised critical habitat units in Texas will contain all
the PCEs. We propose units for designation based on sufficient PCEs
being present to support at least one of the species' wintering life
history functions.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the occupied
areas contain features essential to the conservation of the species
that may require special management considerations or protections.
Primary threats to the wintering population of piping plover that
may require special management or protection are:
(1) Disturbance of foraging and roosting plovers by humans,
vehicles, and domestic animals;
(2) Predation, especially falcons, hawks, coyotes, bobcats and
feral cats; and
(3) Modification and loss of habitat due to uncontrolled
recreational access and beach stabilization efforts (e.g., beach
nourishment, beach maintenance, sediment dredging and disposal, inlet
channelization, construction of jetties and other hard structures).
[[Page 29299]]
Foraging and roosting piping plovers may be disturbed by events
that result in flushing birds or disrupting normal feeding or roosting
times and causing excessive alertness or abandonment of the area. Such
disturbance can be caused by humans carrying out recreational
activities such as walking on the beach, flying kites, or shooting
fireworks. Driving vehicles on the beach also can disturb foraging and
roosting plovers, as can pets being allowed to run or roam freely on
the beach. Predation rates on piping plovers may increase above normal
because human activities attract predators thereby increasing their
numbers. Wintering piping plover habitat can be modified or lost by
uncontrolled recreational access, such as off-road vehicle (ORV) use,
pedestrians, and domestic animals. Additionally, habitat modification
and loss occurs with beach stabilization activities that prevent the
natural transfer and erosion and accretion of sediments along the ocean
shoreline. Beach stabilization efforts that threaten to impact
wintering piping plover habitat include beach nourishment, beach
maintenance, sediment dredging and disposal, inlet channelization, and
construction on jetties and other hard structures. However, when these
efforts, in particular sediment dredging and disposal, result in PCEs
that mimic natural PCEs, habitat is created. To address the threats
affecting the wintering population of the piping plover within each of
the proposed critical habitat units, certain special management actions
may be needed. For example, the high level of vehicle and pedestrian
use of some areas may require managing access to piping plover foraging
habitat and adjacent upland roosting habitat during migration and
overwintering periods. Managing access to these foraging and roosting
areas may assist in the protection of all of the PCEs and reduce piping
plover disturbance and predation caused by vehicle use, pedestrians,
and pets. Managing access might also improve the available habitats for
conservation of piping plovers.
Criteria Used To Identify Critical Habitat
All proposed revised critical habitat units in Texas are within
areas that we have determined were occupied at the time of listing, and
that contain sufficient PCEs in the quantity and spatial arrangement to
support life history functions essential for the conservation of the
species where it winters. All units for which we are proposing to
designate critical habitat have occurrence data that indicate a
consistent use. That is, occupancy has been documented over more than
one wintering season, which is the same criterion used in the original
2001 designation. We used the best scientific data available in
determining areas that contain the features that are essential to the
conservation of the wintering population of the piping plover, as
discussed in the Methods section above.
The units were delineated by compiling existing relevant spatial
data of the unit descriptions described in our 2001 final rule
designating critical habitat for the wintering population of the piping
plover (66 FR 36038), refining the existing descriptions using our
National Wetlands Inventory data, and mapping in such a manner that the
units contain the PCEs (as described) and do not contain any structures
or other features that are not identified as PCEs. However, as
described in the Methods section, bollards are excluded, but are too
small to be removed digitally from our maps. We have no information
indicating that bollards negatively affect piping plovers. To further
ensure that no manmade features are included in critical habitat,
bollards are expressly excluded by text in the proposed rule and are
not proposed for designation as critical habitat. Using the information
compiled above, GIS was used to analyze and integrate the relevant data
layers for the areas of interest in order to determine those areas that
include PCEs. See the Methods section above for additional discussion
of mapping techniques.
We did not consider for designation areas that do not contain one
or more of the PCEs or areas that: (1) Are highly degraded and may not
be restorable; and (2) are small, highly fragmented, or isolated and
may provide little or no long-term conservation value. We included
areas containing one or more PCEs where occurrence data exist and where
the area: (1) Provides a patchwork of the features essential for the
conservation of the species; (2) offers dispersal capabilities or are
in proximity to other wintering piping plover occurrences that would
allow for survival and recolonization following major natural
disturbance events (e.g., hurricanes); (3) are of sufficient size to
maintain the physical and biological features that support occurrences;
and (4) are representative of the historic geographic distribution of
occupied areas that will help prevent further range collapse of the
species and will provide for the conservation of the species.
Within the areas (TX-3, TX-4, TX-7, TX-8, TX-9, TX-10, TX-14, TX-
15, TX-16, TX-18, TX-19, TX-22, TX-23, TX-27, TX-28, TX-31, TX-32, and
TX-33) vacated and remanded to the Service for reconsideration in Texas
General Land Office v. U.S. Department of the Interior, et al., No. 06-
cv-00032 (S.D. Tex.), we had found no unoccupied areas that we
considered essential to the conservation of the species. The 18 units
in Texas we are considering for designation cover a small area relative
to the total area used by wintering piping plovers along the coasts of
the Gulf of Mexico, Atlantic Ocean and Caribbean islands. That total
occupied wintering area is vast. In comparison, unoccupied areas along
the Texas coast are relatively small. Thus, we do not consider
unoccupied areas in Texas to be essential to the conservation of the
species. Therefore, we propose no areas in Texas outside the
geographical area occupied by the species at the time of listing. In
vacated unit TX-17 the PCEs have been reduced to two small and disjunct
fragments and it has not been observed to have been occupied since
1997. Therefore, we do not consider it suitable now for critical
habitat designation. When it was originally designated in 2001, it had
been occupied at least 2 of the previous 10 years, and the PCEs covered
a larger, less fragmented area. We are proposing to designate critical
habitat on lands that we have determined were occupied at the time of
listing, are currently occupied, and contain sufficient PCEs to support
life history functions essential for the conservation of the species.
Summary of Changes From Previously Designated Critical Habitat
The areas identified in this proposed rule constitute a proposed
revision of the areas we designated as critical habitat for the
wintering population of the piping plover on July 10, 2001 (66 FR
36038). The main differences include the following:
(1) The 2001 final rule used a more generalized methodology for
delineating critical habitat, which resulted in the inclusion of non-
PCEs within the 19 court-vacated critical habitat units for the
wintering population of the piping plover in Texas. We based this
proposed revised designation on a more specific methodology (see
Methods section) that resulted in the proposal of 18 units, which are
changed in size and configuration. It also resulted in the elimination
of an additional unit (vacated unit TX-17). The boundaries of the
proposed revised units exclude areas without PCEs. The exception is
that we include areas with bollards, which are too small to detect at
the mapping resolution we used (1:5,000), but which the text of the
rule makes
[[Page 29300]]
clear are not part of the designation. Table 1 presents the size of the
vacated and proposed units.
Table 1.--Acres (ha) of Vacated and Proposed Revised Critical Habitat
Units for the Wintering Population of the Piping Plover in Texas
------------------------------------------------------------------------
Acres (Hectares)
Unit -------------------------
Vacated Proposed
------------------------------------------------------------------------
TX-03......................................... 168,725 107,673
(68,281) (43,574)
TX-04......................................... 38,641 17,218
(15,638) (6,969)
TX-07......................................... 208 295
(84) (120)
TX-08......................................... 478 620
(194) (251)
TX-09......................................... 447 171
(181) (69)
TX-10......................................... 683 344
(276) (139)
TX-14......................................... 1,103 590
(446) (239)
TX-15......................................... 1,778 805
(719) (325)
TX-16......................................... 927 1,376
(375) (557)
TX-17......................................... 161 N/A
(65)
TX-18......................................... 8,423 2,467
(3,408) (999)
TX-19......................................... 1,957 2,419
(792) (979)
TX-22......................................... 1,823 545
(738) (221)
TX-23......................................... 1,537 1,808
(622) (732)
TX-27......................................... 1,464 906
(593) (367)
TX-28......................................... 648 478
(262) (193)
TX-31......................................... 849 399
(344) (161)
TX-32......................................... 658 555
(266) (225)
TX-33......................................... 770 212
(312) (86)
-------------------------
Total..................................... 231,280 138,881
(93,596) (56,206)
------------------------------------------------------------------------
By eliminating areas without PCEs we decreased the overall area and
increased the area of ``islands'' of non-PCEs surrounded by proposed
units for the following proposed units: TX-04, TX-09, TX-15, TX-18, TX-
22, TX-27, TX-28, TX-31, TX-32, and TX-33. The overall area of proposed
units TX-07, TX-08, TX-16, TX-19, and TX-23 increased from that
originally designated in 2001 because, in addition to eliminating non-
PCEs, we expanded boundaries to capture entire polygons of PCEs. Those
polygons appeared in recent aerial photographs (see Methods section) to
have shifted since the original designation in 2001 due to storm
events.
(2) The area in unit TX-3 has been reduced to 68 percent of what
was designated in our July 10, 2001, critical habitat designation (66
FR 36038), primarily due to a decrease in the size of subunit TX-3C.
Approximately the northern one-third of what was originally designated
no longer contains PCEs or the PCEs that remain have been reduced in
size and are fragmented and disjunct from the large polygon that was
originally designated. Based on our review of recent aerial
photographs, we believe that the PCEs became lost or fragmented as a
result of storm events.
(3) The area in unit TX 0910 has been reduced to 50 percent of what
was designated in our July 10, 2001, critical habitat designation (66
FR 36038), primarily due to a decrease in the size of subunit TX 0910
C. Using revised mapping methodology (see Methods section), we expanded
the boundaries of TX 0910C to include all PCEs surrounding a large
lagoon. The entire polygon of each PCE was included within the boundary
of the subunit unless we encountered a road. When that occurred, the
boundary of the unit was the edge of the road. The lagoon itself does
not contain PCEs and is not included within the boundaries of subunit
TX 0910 C, although a large portion of it had been included in the
original 2001 designation.
(4) The area in unit TX 0914 has been reduced to 54 percent of what
was designated in our July 10, 2001, critical habitat designation (66
FR 36038). Approximately the western half of what was originally
designated no longer contains PCEs or the PCEs that remain have been
reduced in size and are fragmented and disjunct from the large polygon
that was originally designated and remains in the eastern portion. We
expanded the original northern and eastern boundary to capture complete
polygons of PCEs that, based on our review of recent aerial
photographs, appear to have shifted.
(5) The court-vacated unit TX 0917 is an island. When it was
designated in 2001, it was relatively small (Table 1). When we
eliminated the non-PCEs in evaluating whether a proposed revised
designation was appropriate, only two polygons, each less than 4 ac
(1.6 ha) and separated by 0.8 mi (1.3 km), remained. In addition, we
had no records of recent occupancy by wintering piping plovers.
Therefore, we concluded that it was no longer essential to the
conservation of the species.
Proposed Revised Critical Habitat Designation
We are proposing 18 units as revised critical habitat in Texas for
the wintering population of the piping plover. The critical habitat
units we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for wintering piping
plovers. We have retained the same unit and subunit numbers that were
vacated by the court. Units that were not vacated and remain critical
habitat are not described, and vacated unit TX 0917 is not described
because. we are not proposing that it be designated. Table 2 shows the
occupancy, ownership, and approximate size of the proposed revised
units.
Table 2.--Occupancy and Threats to the Proposed Revised Critical Habitat Units for the Wintering Population of
the Piping Plover in Texas
----------------------------------------------------------------------------------------------------------------
Occupied at time of Threats requiring special
Unit listing? Currently occupied? management or protections
----------------------------------------------------------------------------------------------------------------
Subunit TX-3A: South Padre Island-- Yes.................. Yes.................. Human, vehicle and domestic
Gulf of Mexico Shoreline. animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and nourishment.
Subunit TX-3B: South Padre Island-- Yes.................. Yes.................. Human, vehicle and domestic
Interior. animal disturbance;
predation; uncontrolled
recreational use.
Subunit TX-3C: North Padre Island-- Yes.................. Yes.................. Human, vehicle and domestic
Interior. animal disturbance;
predation; uncontrolled
recreational use.
Subunit TX-3D: North Padre Island-- Yes.................. Yes.................. Human, vehicle and domestic
Gulf of Mexico. animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and nourishment.
[[Page 29301]]
Subunit TX-3E: Mesquite Rincon...... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
TX-4. Lower Laguna Madre Mainland... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
TX-7. Newport Pass/Corpus Christi Yes.................. Yes.................. Human, vehicle and domestic
Beach. animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and nourishment.
TX-8. Mustang Island Beach.......... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and nourishment.
TX-9. Fish Pass Lagoons............. Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
Subunit TX-10A: Shamrock Island..... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
Subunit TX-10B: Mustang Island-- Yes.................. Yes.................. Human, vehicle and domestic
Unnamed sand flat. animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and
rehabilitation.
Subunit TX-10C: Mustang Island-- Yes.................. Yes.................. Human, vehicle and domestic
Lagoon Complex. animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and stabilization.
TX-14. East Flats................... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
TX-15. North Pass................... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and restoration.
TX-16. San Jose Beach............... Yes.................. Yes.................. Domestic animal disturbance,
predation, pedestrian
recreational access.
TX-18. Cedar Bayou/Vinson Slough.... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use; beach
cleaning and nourishment.
TX-19. Matagorda Island Beach....... Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
TX-22. Decros Point................. Yes.................. Yes.................. Domestic animal disturbance,
predation; pedestrian
recreational use., sea
turtle monitoring efforts.
TX-23. West Matagorda Peninsula Yes.................. Yes.................. Human, vehicle and domestic
Beach. animal disturbance;
predation; uncontrolled
recreational use.
TX-27. East Matagorda Bay/Matagorda Yes.................. Yes.................. Human, vehicle and domestic
Peninsula Beach West. animal disturbance;
predation; uncontrolled
recreational use.
TX-28. East Matagorda Bay/Matagorda Yes.................. Yes.................. Human, vehicle and domestic
Peninsula Beach East. animal disturbance;
predation; uncontrolled
recreational use.
TX-31. San Bernard NWR Beach........ Yes.................. Yes.................. Human, vehicle and domestic
animal disturbance;
predation; uncontrolled
recreational use.
TX-32. Gulf Beach Between Brazos and Yes.................. Yes.................. Domestic animal disturbance,
San Bernard Rivers. predation, pedestrian
recreational access.
TX-33. Bryan Beach and Adjacent Yes.................. Yes.................. Human, vehicle and domestic
Beach. animal disturbance;
predation; uncontrolled
recreational use.
----------------------------------------------------------------------------------------------------------------
The 24 areas we propose as revised critical habitat are: (1)
Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline, (2)
Subunit TX-3B: South Padre Island--Interior, (3) Subunit TX-3C: North
Padre Island--Interior, (4) Subunit TX-3D: North Padre Island--Gulf of
Mexico, (5) Subunit TX-3E: Mesquite Rincon, (6) Unit TX-4: Lower Laguna
Madre Mainland, (7) Unit TX-7: Newport Pass/Corpus Christi Pass Beach,
(8) Unit TX-8: Mustang Island Beach, (9) Unit TX-9: Fish Pass Lagoons,
(10) Subunit TX-10A: Shamrock Island, (11), Subunit TX-10B: Mustang
Island--Unnamed sand flat, (12) Subunit TX-10C: Mustang Island--Lagoon
Complex, (13) Unit TX-14: East Flats, (14) Unit TX-15: North Pass, (15)
Unit TX-16: San Jose Beach, (16) Unit TX-18: Cedar Bayou/Vinson Slough,
(17) Unit TX-19: Matagorda Island Beach, (18) Unit TX-22: Decros Point,
(19) Unit TX-23: West Matagorda Peninsula Beach, (20) Unit TX-27: East
Matagorda Bay/Matagorda Peninsula Beach West, (21) Unit TX-28: East
Matagorda Bay/Matagorda Peninsula Beach East, (22) Unit TX-31: San
Bernard NWR Beach, (23) Unit TX-32: Gulf Beach Between Brazos and San
Bernard Rivers, and (24) Unit TX-33: Bryan Beach and Adjacent Beach.
The approximate area encompassed within each critical habitat unit
by ownership is shown in Table 3.
Table 3.--Ownership and Size of Proposed Revised Critical Habitat for the Wintering Population of Piping Plover
in Texas
----------------------------------------------------------------------------------------------------------------
Size of Land ownership in acres (hectares)
unit in ---------------------------------------------------
Unit acres
(hectares) Federal State County Private
----------------------------------------------------------------------------------------------------------------
Subunit, TX-3A: South Padre Island--Gulf of 2,888 728 (295) 287 (116) 28 (11) 1,845 (747)
Mexico Shoreline.............................. (1,169)
Subunit, TX-3B: South Padre Island--Interior... 44,083 18,778 16,583 ........... 8,722
(17,840) (7,599) (6,711) (3,530)
[[Page 29302]]
Subunit, TX-3C: North Padre Island--Interior... 50,855 ........... 46,027 ........... 4,828
(20,580) (18,626) (1,954)
Subunit, TX-3D: North Padre Island--Gulf of 269 (109) ........... 212 (86) ........... 57 (23)
Mexico........................................
Subunit, TX-3E: Mesquite Rincon................ 9,578 ........... 398 (161) ........... 9,180
(3,876) (3,715)
TX-4. Lower Laguna Madre Mainland.............. 17,218 6,300 8,576 ........... 2,342 (948)
(6,969) (2,550) (3,471)
TX-7. Newport Pass/Corpus Christi Beach........ 295 (120) ........... 143 (58) ........... 152 (62)
TX-8. Mustang Island Beach..................... 620 (251) ........... 367 (149) 5 (2) 248 (100)
TX-9. Fish Pass Lagoons........................ 171 (69) ........... 169 (68) ........... 2 (0.8)
Subunit TX-10A: Shamrock Island................ 12 (5) ........... 8 (3) ........... 4 (1.6)
Subunit TX-10B: Mustang Island--Unnamed sand 3 (1) ........... 3 (1) ........... ...........
flat..........................................
Subunit TX-10C: Mustang Island--Lagoon Complex. 329 (133) ........... 237 (96) ........... 92 (37)
TX-14. East Flats.............................. 590 (239) ........... 12 (5) ........... 578 (234)
TX-15. North Pass.............................. 805 (325) ........... 154 (62) ........... 651 (263)
TX-16. San Jose Beach.......................... 1,376 (557) 15 (6) 691 (280) ........... 670 (271)
TX-18. Cedar Bayou/Vinson Slough............... 2,467 (999) 115 (47) 2 (0.8) ........... 2,350 (951)
TX-19. Matagorda Island Beach.................. 2,419 (979) 2,135 (864) 284 (115) ........... ...........
TX-22. Decros Point............................ 545 (221) ........... 325 (132) ........... 220 (89)
TX-23. West Matagorda Peninsula Beach.......... 1,808 (732) ........... 877 (355) ........... 931 (377)
TX-27. East Matagorda Bay/Matagorda Peninsula 906 (367) ........... 481 (195) ........... 425 (172)
Beach West....................................
TX-28. East Matagorda Bay/Matagorda Peninsula 478 (193) ........... 146 (59) ........... 332 (134)
Beach East....................................
TX-31. San Bernard NWR Beach................... 399 (161) 119 (48) 193 (78) ........... 87 (35)
TX-32. Gulf Beach Between Brazos and San 555 (225) ........... 555 (225) ........... ...........
Bernard Rivers................................
TX-33. Bryan Beach and Adjacent Beach.......... 212 (86) ........... 212 (86) ........... ...........
----------------------------------------------------------------
Total...................................... 138,881 28,190 76,942 33 (13) 33,716
(56,206) (11,409) (31,139) (13,645)
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the wintering population of
the piping plover, below. Description information is summarized in
Tables 1 and 2.
Unit TX-3: Padre Island
Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline. This
subunit consists of 2,888 ac (1169 ha) in Cameron and Willacy Counties
Texas. It is a beach 30.0 mi (48.2 km) in length on the gulfside of
South Padre Island, which is a barrier island. The subunit is located
within an area bounded on the south by the southern boundary of Andy
Bowie County Park, and on the north by the south jetty of Mansfield
Channel, which divides North and South Padre Islands. The jetty itself
is outside the boundary of the subunit. The eastern boundary is the
estimated MLLW of the Gulf of Mexico (see the Methods section for our
derivation of MLLW), and the western boundary is the dune line where
the habitat changes from lightly vegetated, sandy beach to densely
vegetated dunes. This subunit does not include bollards within the
critical habitat designation, although they may be present within the
described area because they are too small to be detected with the
mapping methodology used.
Approximately one quarter of the subunit is in Federal ownership
and managed by the Service's Laguna Atascosa NWR, and approximately 64
percent is in private ownership. Ten percent is State land managed by
the GLO, and a small portion at the southern end is County park land
managed by Andy Bowie County Park (Table 3).
Subunit TX-3A is the southernmost unit of the proposed revised
critical habitat for the wintering population of the piping plover. It
was occupied at the time of listing and is currently occupied (Table
2). Occupancy has been confirmed by species experts at least 2 years
out of the last 10 years. Habitat in this subunit contains features in
the appropriate spatial arrangement that are essential to the
conservation of the wintering population of the piping plover,
including sand flats with little or no emergent vegetation (PCE 1),
surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and
sheltering and for feeding.
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access and beach cleaning and nourishment
efforts. These threats are of greatest magnitude at the southern end of
the subunit where housing developments are to the west of the subunit.
Laguna Atascosa NWR is preparing a Comprehensive Conservation Plan
(CCP) that will address the wintering population of the piping plover
as well as other listed species. We are considering the possible
exclusion of NWR land in subunit TX-3A from the final critical habitat
designation based on benefits provided to wintering piping plover
habitat under the CCP, a draft of which is being prepared and which
will be released shortly for public comment (see the Areas Considered
for Exclusion Under Section 4(b)(2) of the Act section for further
discussion). At this time, we are not aware of any additional
management plans that address this species in this area.
Subunit TX-3B: South Padre Island--Laguna Madre side. This bayside
subunit consists of 44,083 ac (17,840 ha) in Cameron and Willacy
Counties, Texas. Its southern boundary extends from the Gulf of Mexico
south of the
[[Page 29303]]
Laguna Madre west along latitude 26[deg]09'19.00'' N, paralleling the
existing anthropogenic (manmade) dike, to the edge of the intertidal
mudflats bordering the eastern shore of the lower Laguna Madre. The
dike is not within the boundary of the subunit. The northern boundary
is the channel at Mansfield Channel. The eastern boundary is dense
vegetation or, if there is no dense vegetation or dune, the boundary of
subunit 3A. The western boundary is the western edge of the intertidal
mudflats bordering the eastern shore of the lower Laguna Madre.
Approximately 42 percent of the land is Federally owned and managed
by the Service's Laguna Atascosa NWR, and approximately 38 percent is
State-owned and managed by the GLO (Table 3). The remainder is in
private ownership.
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand and mud flats with no or
very sparse emergent vegetation for feeding (PCE 1), unvegetated or
sparsely vegetated sand and mud flats above high tide for roosting (PCE
2), and sand spits running into the Laguna for foraging and roosting
(PCE 5). This subunit also includes unvegetated washover areas with
little or no topographic relief for feeding and roosting (PCE 7).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access. These threats, particularly vehicle
access, are of greatest magnitude at the southern portion of the
subunit where roads are near or adjacent to PCE 1. At this time, we are
not aware of any management plans that address this species in this
area.
Subunit TX-3C: North Padre Island--Laguna Madre side. This bayside
unit consists of 50,855 ac (20,580 ha) in Kenedy and Kleberg Counties,
Texas. It is along and within the Laguna Madre and extends from the
western boundary of Padre Island National Seashore (PAIS) to the Gulf
Intracoastal Waterway (GIWW). The northern boundary of the subunit is a
line extending westward from the PAIS (at latitude 27[deg] 4' 29.9''
N), and its southern boundary is a line extending westward from the
southern boundary of PAIS along the northern edge of the Mansfield
Channel. The eastern boundary of this subunit is the western boundary
of PAIS when the PCEs extend as far as PAIS or the eastern edge of the
sand flats where the PCEs end. The portion of the western boundary
north of longitude/latitude coordinate 26[deg]48'38.2'' N,
97[deg]28'11.6'' W is the eastern edge of the GIWW, and the portion of
the western boundary south of the coordinate is the western edge of the
intertidal mudflats bordering the eastern shore of the Laguna Madre.
Most of the land is State-owned and managed by the GLO. A small portion
is in private ownership (Table 3).
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand and mud flats with sparse
emergent vegetation for feeding (PCE 1), unvegetated or sparsely
vegetated sand, or mud flats above high tide for roosting (PCE 2), and
sand spits running into the Laguna for foraging and roosting (PCE 5).
This subunit also includes unvegetated washover areas with little or no
topographic relief for feeding and roosting (PCE 7). This subunit also
contains sparse vegetation and little or no topographic relief mimicked
in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE
8).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access. However, the location of the subunit
and the lack of roads near it tend to limit access to the PCEs for
recreational use, particularly PCEs 1 and 2. At the north end, dredge
disposal may threaten plover habitat. At this time we are not aware of
any management plans that address this species in this area.
Subunit TX-3D: North Padre Island--Gulf of Mexico. This gulfside
subunit consists of 269 ac (109 ha) of beach in Kleberg County, Texas.
It extends along the gulf shore of North Padre Island from the northern
boundary of PAIS northward 6.2 mi (10 km) to the Nueces County line.
The southern boundary is the north boundary of the northeast section of
the PAIS. The subunit extends eastward to the MLLW of the Gulf of
Mexico (see the Methods section for our derivation of MLLW), and the
western boundary runs along the dune line where the habitat changes
from lightly vegetated, sandy beach to densely vegetated dunes. This
subunit does not include bollards within the critical habitat
designation, although they may be present within the described area
because they are too small to be detected with the mapping methodology
used. Most of the land is owned by the State and managed by the GLO.
Approximately one-fifth is in private ownership (Table 3).
It was occupied at the time of listing and is currently occupied
(Table 2). Occupancy has been confirmed by species experts at least 2
years out of the last 10 years. Habitat in this subunit contains
features in the appropriate spatial arrangement that are essential to
the conservation of the wintering population of the piping plover
including sand flats with little or no emergent vegetation (PCE 1) and
surf-cast algae (PCE 3) for feeding, and unvegetated or sparsely
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and
sheltering and for feeding.
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access and beach cleaning and nourishment
efforts. These threats are of greater magnitude at the north end of the
subunit where more roads provide easy access to the PCEs and the
subunit is in close proximity to houses. At this time, we are not aware
of any management plans that address this species in this area.
Subunit TX-3E: North Padre Island--Mesquite Rincon. This triangular
bayside subunit of 9,578 acres (3,876 hectares) lies on the western
shore of the lower Laguna Madre in Kleberg County, Texas. The subunit
is generally bounded by Rincon de la Soledad on the southwestern side,
Mesquite Rincon on the north, and the GIWW and Rincon de San Jose on
the east. The southwestern boundary is an irregular line along the PCEs
between the latitude/longitude coordinate points: 26[deg]44'10.5'' N,
97[deg] 28' 04.5'' W at the southeastern point of Rincon de San Jose
and 26[deg]50'58.1'' N, 97[deg]34'19.5'' W. The northern boundary is
the line described between the latitude/longitude coordinate points:
26[deg]51'24.2'' N, 97[deg]33'25.8'' W and 26[deg]51'24.2'' N,
97[deg]27'52.7'' W. The northern portion of the eastern boundary is the
western edge of the GIWW south to latitude/longitude coordinate point
26[deg]48'52.7'' N,
[[Page 29304]]
97[deg]28'12.9'' W. There the subunit curves westward and skirts a
small horseshoe-shaped inlet in the Laguna Madre to the northeastern
point of Rincon de San Jose at latitude/longitude coordinate point
26[deg]48'43.9'' N, 97[deg]29'4.7'' W. There it continues south in an
irregular line along the edge of the PCEs to the southeastern point of
Rincon San Jose. The southeastern portion of the triangle is a patchy
mosaic of polygons that are not within the boundaries of the subunit
because they do not contain the PCEs. They appear as islands surrounded
by the subunit. Most of the land is in private ownership with a small
portion that is State-owned and managed by the GLO (Table 3).
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand and mud flats with no or
very sparse emergent vegetation for feeding (PCE 1), unvegetated or
sparsely vegetated sand, or mud flats above high tide for roosting (PCE
2), and sand spits running into the Laguna for foraging and roosting
(PCE 5). This subunit also includes unvegetated washover areas with
little or no topographic relief for feeding and roosting (PCE 7). This
subunit also contains sparse vegetation and little or no topographic
relief mimicked in artificial habitat types (e.g., dredge spoil sites)
for feeding (PCE 7).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access. However, the location of the subunit
and the lack of roads near it tend to limit access to the PCEs for
recreational use, particularly PCEs 1 and 2. At this time, we are not
aware of any management plans that address this species in this area.
Unit TX-4: Lower Laguna Madre Mainland
This bayside unit consists of 17,218 ac (6,969 ha) in Cameron and
Willacy Counties, Texas and lies along the western shoreline of the
Lower Laguna Madre. The southern boundary is an east-west line at the
northern tip of Barclay Island, approximately following latitude
26[deg]14'42.2'' N. The northern boundary is an east-west line located
near the northern tip of El Sauz Island, approximately 1.2 mi (1.9 km)
south of the center of the city of Port Mansfield, Willacy County,
Texas, and approximately following latitude 26[deg]32'7.8'' N. The
eastern boundary of the unit is the eastern edge of the line of dredge
spoils that parallel the western side of the GIWW. The western boundary
runs from southeast to northwest and is the western edge of sandy beach
and mudflat habitat, approximately following the latitude/longitude
coordinate points: latitude/longitude coordinate points:
26[deg]14'42.45'' N, 97[deg]19'32.75'' W; 26[deg]17'15.54'' N,
97[deg]20'47.31'' W; 26[deg]20'10.17'' N, 97[deg]21'10.94'' W;
26[deg]21'31.54'' N, 97[deg]22'48.10'' W; 26[deg]24'26.64'' N,
97[deg]23'53.27'' W; 26[deg]26'8.55'' N, 97[deg]25'13.33'' W; and
26[deg]32'5.44'' N, 97[deg]27'6.91'' W.
Approximately one-third of this unit is within the Service's Laguna
Atascosa NWR. Approximately half is State-owned and managed by the GLO.
The remainder is in private ownership (Table 3).
This unit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This unit contains PCEs in the
appropriate spatial arrangement essential to the conservation of the
piping plover including intertidal sand and mud flats with no or very
sparse emergent vegetation for feeding (PCE 1) and unvegetated or
sparsely vegetated sand or mud flats above high tide for roosting (PCE
2). This unit also includes unvegetated washover areas with little or
no topographic relief for feeding and roosting (PCE 7). This unit also
contains sparse vegetation and little or no topographic relief mimicked
in artificial habitat types (e.g., dredge spoil sites) for feeding (PCE
8).
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. However, recreational access is limited due to a lack of roads,
particularly for access to PCEs 1 and 2. The refuge is preparing a CCP
that will address piping plover and other listed species. We are
considering the possible exclusion of NWR land in unit TX-4 from the
final critical habitat designation based on benefits provided to
wintering piping plover habitat under the CCP, a draft of which is
being prepared and which will be released shortly for public comment
(see the Areas Considered for Exclusion Under Section 4(b)(2) of the
Act section for further discussion). At this time, we are not aware of
any additional management plans that address this species in this area.
Unit TX-7: Newport Pass/Corpus Christi Pass Beach
This unit consists of 295 ac (120 ha) in Nueces County, Texas. It
is a gulfside beach unit approximately 5.1 mi (8.2 km) long. The
southern boundary is the gulfward extension of Saint Bartholomew
Avenue, adjacent to the north end of the seawall. The northern boundary
is the edge of the south jetty of the Fish Pass Structure at Mustang
Island State Park. The eastern boundary is MLLW of the Gulf of Mexico
(see the Methods section for our derivation of MLLW), and the western
boundary runs along the dune line where the habitat changes from
lightly vegetated, sandy beach to densely vegetated dune. Packery
Channel cuts the beach approximately 0.3 mi (0.5 km) north of the south
boundary. The seawall, jetty, bollards, and open water of Packery
Channel are not within the boundaries of the unit. This unit is in
State and private ownership (Table 3); the State portion is managed by
the Mustang Island State Park.
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains PCEs in the appropriate spatial arrangement that are
essential to the conservation of the wintering population of the piping
plover including sand flats with little or no emergent vegetation (PCE
1) and surf-cast algae (PCE 3) for feeding, unvegetated or sparsely
vegetated sandy backbeach and washovers (PCEs 4 and 7) for roosting and
sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access and beach cleaning and nourishment efforts. Due to its close
proximity to Corpus Christi, this unit receives considerable
recreational use and beach cleaning and nourishment. At this time, we
are not aware of any management plans that address this species in this
area.
Unit TX-8: Mustang Island Beach
This unit consists of 620 ac (251 ha) in Nueces County, Texas. It
is a gulfside beach unit approximately 12.5 mi (20.1
[[Page 29305]]
km) long. The southern boundary is the edge of the north jetty of the
Fish Pass Structure at Mustang Island State Park. The northern boundary
is the south side of the Horace Calder Pier in Port Aransas, Texas. The
unit is bounded on the east by the MLLW of the Gulf of Mexico (see the
Methods section for our derivation of MLLW) and on the west by the dune
line where the habitat changes from lightly vegetated sandy beach to
densely vegetated. The jetty and pier are not within the boundary of
the unit. This unit does not include bollards within the critical
habitat designation, although they may be present within the described
area because they are too small to be detected with the mapping
methodology used. The unit is in State and private ownership with a
small municipal park owned and managed by the City of Port Aransas
(Table 3). The State land is managed by the GLO.
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access and beach cleaning and nourishment efforts. Due to its close
proximity to Corpus Christi, this unit receives considerable
recreational use and beach cleaning and nourishment. At this time, we
are not aware of any management plans that address this species in this
area.
Unit TX-9: Fish Pass Lagoons
This bayside unit consists of 171 ac (69 ha) in Nueces County,
Texas. This unit encompasses flats facing Corpus Christi Bay that
extend 1.0 km (0.6 mi) on either side of Fish Pass. The inland boundary
is a line of dense vegetation, and the bayside boundary is the
northeast edge of the tidal sand flats that are a PCE. This unit
includes all areas of habitat that contain PCEs 1, 2, 5, and 6 within
the area described by a polygon with the following latitude/longitude
coordinate points: 27[deg]42'14.63'' N, 97[deg]10'44.70'' W;
27[deg]41'56.97'' N, 97[deg]10'8.13'' W; 27[deg]41'24.35'' N,
97[deg]10'36.89'' W; 27[deg]41'18.98'' N, 97[deg]11'16.79'' W;
27[deg]41'23.51'' N, 97[deg]11'31.32'' W and 27[deg]42'14.63'' N,
97[deg]10'44.70'' W. Within that polygon, six moderate to large
polygons from 5 to 64 ac (2 to 25 ha) each and two small polygons less
than 1 ac (0.4 ha) each are PCEs and comprise the unit. Most of the
unit is owned by the State and managed by the GLO (Table 3). A few
acres are in private ownership.
This unit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This unit contains PCEs in the
appropriate spatial arrangement essential to the conservation of the
piping plover including intertidal sand and/or mud flats with no or
very sparse emergent vegetation for feeding (PCE 1), unvegetated or
sparsely vegetated sand, or mud flats above high tide for roosting (PCE
2), and sand spits running into the bay for foraging and roosting (PCE
5). This unit also includes unvegetated washover areas with little or
no topographic relief for feeding and roosting (PCE 7).
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. However, recreational access is limited by a lack of road
access, particularly to PCEs 1 and 2. At this time, we are not aware of
any management plans that address this species in this area.
Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats
Subunit TX-10A: Shamrock Island. This 12 ac (5 ha) island in Nueces
County, Texas, was a peninsula extending off of Mustang Island in
Corpus Christi Bay until erosion separated the island from the
mainland. Five small polygons of sand flats from 1.1 to 6.8 ac (0.4 to
2.7 ha) comprise the subunit. Most of the land is State-owned and
managed by the GLO; the remainder is privately owned (Table 3).
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand flats with no or very
sparse emergent vegetation for feeding (PCE 1) and unvegetated or
sparsely vegetated sand flats above high tide for roosting (PCE 2).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access. However, a lack of road access limits
recreational use and vehicle use. At this time, we are not aware of any
management plans that address this species in this area.
Subunit TX-10B: Mustang Island: Unnamed sand flat. This 3 ac (1 ha)
subunit in Nueces County, Texas, is a small, unnamed sand flat near the
north edge of the mouth of Wilson's Cut in Corpus Christi Bay. The
subunit is the western half of the island that is sand flats landward
(easterly) to the western edge of tidal marsh. It is entirely State-
owned (Table 3) and managed by the GLO.
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand flats with no or very
sparse emergent vegetation for feeding (PCE 1) and unvegetated or
sparsely vegetated sand flats above high tide for roosting (PCE 2), and
sand spits running into the bay for foraging and roosting (PCE 5).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access and beach cleaning and restoration
efforts. However, the location of the subunit and the configuration of
the polygons of PCEs that comprise this subunit, limit recreational
access, particularly by vehicles, to PCEs 1 and 2. At this time, we are
not aware of any management plans that address this species in this
area.
Subunit TX-10C: Mustang Island: Lagoon Complex. This 329 ac (133
ha) subunit in Nueces County, Texas, is an extensive lagoon complex
that consists of 11 polygons within a larger polygon that extends 2.2
miles (3.5 kilometers) south of Wilson's Cut in Corpus Christi Bay. The
southern boundary of the larger polygon begins at the western end
[[Page 29306]]
at latitude/longitude coordinate point 27[deg]43'2,4[sec] N,
97[deg]10[min] 19.4[sec] W at the dune line where the habitat changes
from lightly vegetated, sandy beach to densely vegetated dunes. It
follows the dune line southeast approximately 830 ft (253 m) to a road,
then follows the road approximately 945 ft (288 m) to the edge of the
tidal sand flat PCE. It follows the southeastern edge of the sand flat
northeast to the western edge of a north-south road, where it follows
the edge of the sand flat northward to the south edge of a road that
runs east-west parallel to the southwestern edge of Wilson's Cut. The
northern edge of the boundary is the south edge of the road or the
northern extent of the sand flat when it does not reach the road. The
western boundary follows the PCEs along their eastern edge at Corpus
Christi Bay beginning 409 ft (125 m) southwest of the southwestern edge
of Wilson's Cut to the coordinate point at the western edge of the
southern boundary. A road transects the larger polygon described above
forming two polygons that exclude the road. The PCEs within the two
polygons comprise the subunit. The subunit consists of private and
State-owned lands (Table 3).
This subunit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This subunit contains PCEs in
the appropriate spatial arrangement essential to the conservation of
the piping plover including intertidal sand flats with no or very
sparse emergent vegetation for feeding (PCE 1) and unvegetated or
sparsely vegetated sand flats above high tide for roosting (PCE 2).
The PCEs in this subunit may require special management
considerations or protections to ameliorate the threats of disturbance
of foraging and roosting plovers by humans, vehicles, and domestic
animals; predation; and modification and loss of habitat due to
uncontrolled recreational access and beach cleaning and stabilization
efforts. Road access to the PCEs is extensive. At this time, we are not
aware of any management plans that address this species in this area.
Unit TX-14: East Flats
This bayside unit consists of 590 ac (239 ha) in Nueces County,
Texas. It is an irregularly shaped intertidal sand flat south of the
Corpus Christi Ship Channel. The north boundary is the northern edge of
the sand flat near or adjacent to dredge spoil areas bordering the
south side of the Corpus Christi Ship Channel. The northwestern
latitude/longitude coordinate is 27[deg]49'54.49'' N, 97[deg]6'14.28''
W, and the northeastern latitude/longitude coordinate is
27[deg]49'55.29'' N, 97[deg]5'12.86'' W. From there, the sand flat
curves southward, and the southeastern edge of it forms a highly
irregular line that ends in the southwest portion of the polygon at the
eastern edge of a navigation channel from the Corpus Christi Ship
Channel to Corpus Christi Bay at latitude/longitude coordinate 51.93''
N, 97[deg]5'52.58'' W. The sand flat continues on the western edge of
the navigation channel in a northwesterly direction to latitude/
longitude coordinate 27[deg]49'22.08'' N, 97[deg]6'37.04'' W. It then
curves northeasterly and across the cut to the northern edge at the
northwest coordinate. On the east, it abuts the City of Port Aransas.
There is a small marshland within the sand flat that bisects the sand
flat that is not a PCE and is not included in the unit. The unit is
mostly in private ownership with a small portion of State land managed
by the GLO (Table 3).
This unit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This unit contains PCEs in the
appropriate spatial arrangement essential to the conservation of the
piping plover, including intertidal sand and mud flats with no or very
sparse emergent vegetation for feeding (PCE 1) and unvegetated or
sparsely vegetated sand flats above high tide for roosting (PCE 2).
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. However, this unit does not attract heavy recreational use. At
this time, we are not aware of any management plans that address this
species in this area.
Unit TX-15: North Pass
This bayside unit consists of 805 ac (325 ha) in Aransas County,
Texas. The unit is bounded on the northeast by a line between latitude/
longitude coordinates 27[deg]54'8.70'' N, 97[deg]0'36.97'' W and
27[deg]54'54.53'' N, 97[deg]1'18.17'' W, on the northwest and west by
the edge of tidal sand flats in Aransas Bay, on the south by a line
running east from coordinate 27[deg]53'16.96'' N, 97[deg]2'22.44'' W to
unit TX-16, and on the southeast by the landward boundary of unit 16.
The unit is all areas that contain the PCEs for the species within a
larger area described by a polygon with the following sets of latitude/
longitude coordinate points: 27[deg]54'8.70'' N, 97[deg]0'36.97'' W;
27[deg]53'10.68'' N, 97[deg]1'21.36'' W; 27[deg]53'16.96'' N,
97[deg]2'22.44'' W; 27[deg]53'33.08'' N, 97[deg]2'33.05'' W;
27[deg]54'42.68'' N, 97[deg]2'4.83'' W; 27[deg]54'47.59'' N,
97[deg]1'51.73'' W; 27[deg]54'54.53'' N, 97[deg]1'18.17'' W and
27[deg]54'8.70'' N, 97[deg]0'36.97'' W. This unit is a remnant of a
hurricane washover on San Jose Island. Approximately 18 percent is
State-owned and managed by the GLO; the remainder is in private
ownership (Table 3).
This unit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This unit contains PCEs in the
appropriate spatial arrangement essential to the conservation of the
piping plover including intertidal sand flats with no or very sparse
emergent vegetation for feeding (PCE 1) and unvegetated or sparsely
vegetated sand flats above high tide for roosting (PCE 2). This subunit
also includes unvegetated washover areas with little or no topographic
relief for feeding and roosting (PCE 7).
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation
by raptors and wild mammals; and pedestrian recreational access. At
this time, we are not aware of any management plans that address this
species in this area.
Unit TX-16: San Jose Beach
This unit consists of 1,376 ac (557 ha) in Aransas County, Texas.
It is a gulfside beach unit approximately 19.8 mi (31.9 km) long. The
southern boundary is the edge of the north jetty of Aransas Pass. The
jetty is not within the boundary of the unit. The south edge of Cedar
Bayou Pass is the northern boundary. The eastern boundary is the MLLW
of the Gulf of Mexico (see the Methods section for our derivation of
MLLW), and the western boundary runs along the dune line where the
habitat changes from lightly vegetated, sandy beach to densely
vegetated dunes. This unit does not include bollards within the
critical habitat designation, although they may be present within the
described area because they are too small to be detected with the
mapping methodology used. A small section is in Federal ownership and
managed by the Service's Matagorda Island NWR. Approximately half of
the unit is State-owned and managed by the GLO, and
[[Page 29307]]
nearly as much is in private ownership (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by domestic animals, predation by raptors and wild
mammals, and pedestrian recreational access. The refuge is preparing a
CCP that will address the wintering population of the piping plover as
well as other listed species. We are considering the possible exclusion
of NWR land in unit TX-16 from the final critical habitat designation
based on benefits provided to wintering piping plover habitat under the
CCP, a draft of which is being draft and will be released shortly for
public comment (see the Areas Considered for Exclusion Under Section
4(b)(2) of the Act section for further discussion). At this time, we
are not aware of any management plans that address this species in this
area.
Unit TX-18: Cedar Bayou/Vinson Slough
This bayside unit consists of 2467 ac (999 ha) in Aransas County,
Texas. It is a remnant of a hurricane washover area and includes the
highly dynamic area of Cedar Bayou, the pass that separates San Jose
Island and Matagorda Island. Beginning at the confluence of Vinson
Slough and Cedar Bayou, the boundary follows the shore of Spalding Cove
to Long Reef, then continues along a line extending 2.5 miles southwest
of Long Reef to the shore of San Jose Island, then along the shore of
the island to the landward boundary of unit TX-16. Within that area,
the unit consists of numerous polygons of PCEs; non-PCE polygons within
the described area are not within the boundaries of the unit. The
southern and southeastern boundary is described by a line with the
following sets of latitude/longitude coordinate points:
28[deg]1'21.76'' N, 96[deg]57'51.24'' W; 28[deg]1'12.77'' N,
96[deg]57'31.18'' W; 28[deg]2'3.07'' N, 96[deg]56'45.84'' W;
28[deg]2'15.92'' N, 96[deg]56'25.10'' W; 28[deg]2'30.32'' N,
96[deg]56'11.97'' W; 28[deg]3'15.62'' N, 96[deg]54'20.01'' W;
28[deg]3'58.58'' N, 96[deg]53'24.65'' W; 28[deg]4'1.15'' N,
96[deg]52'14.65'' W; 28[deg]3'31.74'' N, 96[deg]51'38.29'' W and
28[deg]3'17.69'' N, 96[deg]51'38.47'' W. The specific northern boundary
is described by a line with the following sets of latitude/longitude
coordinate points: 28[deg]5'44.24'' N, 96[deg]54'8.16'' W;
28[deg]5'13.23'' N, 96[deg]52'44.85'' W; 28[deg]4'33.99'' N,
96[deg]50'46.55'' W; 28[deg]4'38.92'' N, 96[deg]50'40.79'' W and
28[deg]4'22.98'' N, 96[deg]50'22.94'' W. The eastern boundary at the
northeastern end of the unit is units TX-16 and TX-19 on the gulfside.
The western boundary is the western edge of tidal sand flats in Aransas
Bay.
This area includes a small section of Federally owned land managed
by the Service's Matagorda Island NWR and a small section of State-
owned land. The remaining area is privately owned (Table 3).
This unit was occupied at the time of listing and is currently
occupied (Table 2). Occupancy has been confirmed by species experts at
least 2 years out of the last 10 years. This unit contains PCEs in the
appropriate spatial arrangement essential to the conservation of the
piping plover including intertidal sand flats with no or very sparse
emergent vegetation for feeding (PCE 1), unvegetated or sparsely
vegetated sand flats above high tide for roosting (PCE 2), and sand
spits running into the bay for foraging and roosting (PCE 5). This unit
also includes unvegetated washover areas with little or no topographic
relief for feeding and roosting (PCE 7).
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. Vehicle use of the unit may be limited somewhat by
accessibility. The refuge is preparing a CCP that will address the
wintering population of the piping plover as well as other listed
species. We are considering the possible exclusion of NWR land in unit
TX-18 from the final critical habitat designation based on benefits
provided to wintering piping plover habitat under the CCP, a draft of
which is being draft and will be released shortly for public comment
(see the Areas Considered for Exclusion Under Section 4(b)(2) of the
Act section for further discussion). At this time, we are not aware of
any additional management plans that address this species in this area.
Unit TX-19: Matagorda Island Beach
This unit consists of 2,419 ac (979 ha) in Calhoun County, Texas.
It is a gulfside beach unit approximately 37.1 mi (59.7 km) long. The
southern boundary is the northern edge of Cedar Bayou Pass, and the
northern boundary is the southern edge of Pass Cavallo. At Pass
Cavallo, the unit curves from the eastern gulfside passing between the
south edge of the pass and the north edge of the dunes to a small area
on the bayside. The eastern boundary is the MLLW of the Gulf of Mexico
(see the Methods section for our derivation of MLLW) and the western
boundary runs along the dune line where the habitat changes from
lightly vegetated, sandy beach to densely vegetated dunes. This unit
does not include bollards within the critical habitat designation,
although they may be present within the described area because they are
too small to be detected with the mapping methodology used. The
Federally owned land in this unit is managed by the Service's Matagorda
Island NWR (Table 3). This unit also includes a small section of land
in State ownership.
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by domestic animals, predation by raptors and wild
mammals, pedestrian recreational access, and access by refuge staff and
others for sea turtle monitoring efforts. The refuge is preparing a CCP
that will address the wintering population of the piping plover as well
as other listed species. We are considering the possible exclusion of
NWR land in unit TX-19 from the final critical habitat designation
based on benefits provided to wintering piping plover habitat under the
CCP, a draft of which is being prepared and which will be released
[[Page 29308]]
shortly for public comment (see the Areas Considered for Exclusion
Under Section 4(b)(2) of the Act section for further discussion). At
this time, we are not aware of any additional management plans that
address this species in this area.
Unit TX-22: Decros Point
This unit consists of 545 ac (221 ha) at the Matagorda/Calhoun
County line, Texas. It is a gulfside beach unit approximately 4.8 mi
(7.7 km) long. This unit was originally the southern tip of the
Matagorda Peninsula. It was made into an island by the dredging of the
Matagorda Ship Channel, the edge of which is the northern boundary of
the unit. The unit is horseshoe in shape with the east side along the
Gulf of Mexico and the west side along Matagorda Bay; the two are
connected at their southern boundary by habitat from the north edge of
Pass Cavallo northward to the dune line. Densely vegetated sand dunes
run north to south in the center of the horseshoe and are not within
the boundary of the critical habitat because they are not a PCE. The
eastern boundary is the MLLW of the Gulf of Mexico (see the Methods
section for our derivation of MLLW), and the western boundary is the
western edge of tidal sand flats on the east side of Matagorda Bay.
This unit does not include bollards within the critical habitat
designation, although they may be present within the described area
because they are too small to be detected with the mapping methodology
used. Approximately 60 percent of the unit is in State ownership
managed by the GLO. The remainder is privately owned (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach (PCE 4) for roosting
and feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. Due to a lack of road access, this unit does not receive much
recreational vehicle use. At this time, we are not aware of any
management plans that address this species in this area.
Unit TX-23: West Matagorda Peninsula Beach
This unit consists of 1,808 ac (732 ha) of shoreline in Matagorda
County, Texas. It is a gulfside beach unit approximately 23.9 mi (38.5
km) long. The southern boundary is the northern jetty of the Matagorda
Ship Channel. The northern boundary is the Old Colorado River channel.
The MLLW of the Gulf of Mexico (see the Methods section for our
derivation of MLLW) is the eastern boundary, and the western boundary
runs along the dune line where the habitat changes from lightly
vegetated, sandy beach to densely vegetated dunes. This unit does not
include bollards within the critical habitat designation, although they
may be present within the described area because they are too small to
be detected with the mapping methodology used. Just under half of the
unit is State-owned and managed by the GLO; the remainder is privately
owned (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. At this time, we are not aware of any management plans that
address this species in this area.
Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West
This unit consists of 906 ac (367 ha) of shoreline in Matagorda
County, Texas. It is a gulfside beach unit approximately 14.1 mi (22.8
km) long. The southwestern boundary is the northeastern edge of the Old
Colorado River channel. The unit runs along the beach 14 mi (23 km) to
the northeastern boundary opposite Eidelbach Flats described by a line
between the latitude/longitude coordinate points: 28[deg]41'2.26'' N,
95[deg]46'29.04'' W and 28[deg]41'6.74'' N, 95[deg]46'32.46'' W. The
southeastern boundary is the MLLW of the Gulf of Mexico (see the
Methods section for our derivation of MLLW). The northwestern boundary
runs along the dune line where the habitat changes from lightly
vegetated sandy beach to densely vegetated dunes. This unit does not
include bollards within the critical habitat designation, although they
may be present within the described area because they are too small to
be detected with the mapping methodology used. Just over half of the
unit is State-owned and managed by the GLO; the remainder is privately
owned (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. At this time, we are not aware of any management plans that
address this species in this area.
Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East
This gulfside unit consists of 478 ac (193 ha) in Matagorda County,
Texas. It extends along the Gulf beach southwest and northeast of Brown
Cedar Cut. The cut is not within the boundary of the unit. This unit
abuts with portions of the southeastern edges of units TX-29 and TX-30,
which are on the East Matagorda Bay side. The southwestern boundary is
approximately 4 mi (6.5 km) southwest of Brown Cedar Cut at a line
described by the following sets of latitude/longitude coordinate
points: 28[deg]43'11.91'' N, 95[deg]42'25.47'' W and 28[deg]43'17.09''
N, 95[deg]42'28.56'' W. The northeastern boundary is approximately 2.8
mi (4.5 km) northeast of Brown Cedar Cut to the point where Texas
[[Page 29309]]
Farm to Market Road 457 intersects the beach. The southeastern boundary
is the MLLW of the Gulf of Mexico (see the Methods section for our
derivation of MLLW). The northwestern boundary runs along the dune line
where the habitat changes from lightly vegetated, sandy beach to
densely vegetated dunes. This unit does not include bollards within the
critical habitat boundaries, although they may be present within the
described area because they are too small to be detected with the
mapping methodology used. Approximately one-third is in State ownership
and managed by the GLO; the remaining two-thirds is privately owned
(Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. At this time, we are not aware of any management plans that
address this species in this area.
Unit TX-31: San Bernard NWR Beach
This gulfside unit consists of 399 ac (161 ha) in Matagorda and
Brazoria counties, Texas. It is a 6.2 mi (10 km) segment of beach on
the Gulf of Mexico near the mouth of the San Bernard River. The
northeastern boundary is at the southwestern edge of the mouth of the
San Bernard River. The southwestern boundary follows a line described
by the following sets of latitude/longitude coordinate points:
28[deg]47'54.39'' N, 95[deg]33'26.21'' W, and 28[deg]47'57.69'' N,
95[deg]33'27.75: W. The southeastern boundary is the MLLW of the Gulf
of Mexico (see the Methods section for our derivation of MLLW). The
northwestern boundary runs along the dune line where the habitat
changes from lightly vegetated, sandy beach to densely vegetated dunes.
There is a cut through the beach from the Gulf of Mexico to a lake 3.5
mi (5.6 km) southwest of the San Bernard River, which is not within the
unit. Bollards also are not within the critical habitat designation,
although they may be present within the described area because they are
too small to be detected with the mapping methodology used.
Approximately 30 percent of this unit is in Federal ownership and
managed by the Service's San Bernard NWR. Approximately 48 percent is
State-owned and managed by the GLO with the remaining area in private
ownership (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. The Federally owned portion has pedestrian recreational access,
but no vehicle access. The refuge is preparing a CCP that will address
the wintering population of the piping plover as well as other listed
species. We are considering the possible exclusion of NWR land in unit
TX-31 from the final critical habitat designation based on benefits
provided to wintering piping plover habitat under the CCP, a draft of
which is being prepared and which will be released shortly for public
comment (see the Areas Considered for Exclusion Under Section 4(b)(2)
of the Act section for further discussion). At this time, we are not
aware of any additional management plans that address this species in
this area.
Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers
This gulfside unit consists of 555 ac (225 ha) of shoreline in
Brazoria County, Texas. This unit is a 6.1 mi (9.8 km) segment of beach
on the Gulf of Mexico between the mouths of the San Bernard and Brazos
Rivers. The southwestern boundary is the northeastern edge of the mouth
of the San Bernard River. The northeastern boundary is the western edge
of the mouth of the Brazos River. The southeastern boundary is the MLLW
of the Gulf of Mexico (see the Methods section for our derivation of
MLLW). The northwestern boundary runs along the dune line where the
habitat changes from lightly vegetated, sandy beach to densely
vegetated dunes. This unit does not include bollards within the
critical habitat designation, although they may be present within the
described area because they are too small to be detected with the
mapping methodology used. It is entirely in State ownership and managed
by the GLO (Table 3).
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by domestic animals, predation by raptors and wild
mammals, and pedestrian recreational access. At this time, we are not
aware of any management plans that address this species in this area.
Unit TX-33: Bryan Beach and Adjacent Beach
This unit consists of 212 ac (86 ha) in Brazoria County, Texas. It
is gulfside beach approximately 3.5 mi (5.7 km) in length on the Gulf
of Mexico near the mouth of the Brazos River. The southwestern boundary
is the northeastern edge of the Brazos River. The northeastern boundary
is Farm-to-Market Road 1495 (Bryan Beach Rd). The southeastern boundary
is the MLLW (see the Methods section for our derivation of MLLW). The
northwestern boundary follows along the dune line where the habitat
changes from lightly vegetated, sandy beach to densely vegetated dunes.
This unit does not include bollards within the critical habitat
designation, although they may be present within the described area
because they are too small to be detected with the mapping methodology
used. The unit is entirely in State
[[Page 29310]]
ownership (Table 3) and managed by the Texas Department of Parks and
Wildlife.
The unit was occupied by piping plovers at the time of listing and
is currently occupied (Table 2). Occupancy has been confirmed by
species experts at least 2 years out of the last 10 years. Habitat in
this unit contains features in the appropriate spatial arrangement that
are essential to the conservation of the wintering population of the
piping plover including sand flats with little or no emergent
vegetation (PCE 1) and surf-cast algae (PCE 3) for feeding, and
unvegetated or sparsely vegetated sandy backbeach and washovers (PCEs 4
and 7) for roosting and sheltering and for feeding.
The PCEs in this unit may require special management considerations
or protections to ameliorate the threats of disturbance of foraging and
roosting plovers by humans, vehicles, and domestic animals; predation;
and modification and loss of habitat due to uncontrolled recreational
access. At this time, we are not aware of any management plans that
address this species in this area.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service et
al., 378 F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and
Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do
not rely on this regulatory definition when analyzing whether an action
is likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the wintering population of the
piping plover or its designated critical habitat will require
consultation under section 7 of the Act. Activities on State, Tribal,
local or private lands requiring a Federal permit (such as a permit
from the U. S. Army Corps of Engineers under section 404 of the Clean
Water Act (33 U.S.C. 1251 et seq.) or a permit from us under section 10
of the Act) or involving some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency) are subject
to the section 7 consultation process. Federal actions not affecting
listed species or critical habitat, and actions on State, Tribal, local
or private lands that are not federally funded, authorized, or
permitted, do not require section 7 consultations.
Application of the Adverse Modification Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, would retain the current ability for
the physical and biological features to be functionally established.
Activities that may destroy or adversely modify critical habitat are
those that alter the physical and biological features to an extent that
appreciably reduces the conservation value of critical habitat for the
wintering piping plover. Generally, the conservation role of wintering
piping plover critical habitat units is to support viable core area
populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the wintering population of the piping plover
include, but are not limited to:
(1) Actions that would significantly and detrimentally alter the
hydrology of tidal mud and sand flats.
(2) Actions that would significantly and detrimentally alter the
input of sediments and nutrients necessary for the maintenance of
geomorphic and biologic processes that ensure appropriately configured
and productive beach systems.
[[Page 29311]]
(3) Actions that would introduce significant amounts of emergent
vegetation.
(4) Actions that would significantly and detrimentally alter the
topography of a site (such alteration may affect the hydrology of an
area or may render an area unsuitable for roosting).
(5) Actions that would reduce the value of a site by significantly
disturbing plovers from activities such as foraging and roosting.
(6) Actions that would significantly and detrimentally alter water
quality, which may lead to decreased diversity or productivity of prey
organisms or may have direct detrimental effects on piping plovers.
(7) Actions that would impede natural processes that create and
maintain washover passes and sparsely vegetated intertidal feeding
habitats.
These activities could eliminate or reduce the habitat necessary
for foraging by eliminating or reducing the piping plovers' prey base;
destroying or removing available upland habitats necessary for
protection of the birds during storms or other harsh environmental
conditions; increasing the amount of vegetation to levels that make
foraging or roosting habitats unsuitable; and increasing recreational
activities to such an extent that the amount of available undisturbed
foraging or rooting habitat is reduced, with direct or cumulative
adverse effects to individuals and completion of their life cycles.
We consider all of the units proposed as critical habitat to
contain features essential to the conservation of the wintering
population of the piping plover. All units are within the geographic
range of the species, all were occupied by the species at the time of
listing, and are likely to be used by the wintering population of the
piping plover. Federal agencies already consult with us on activities
in areas currently occupied by the wintering population of the piping
plover, or if the species may be affected by the action, to ensure that
their actions do not jeopardize the continued existence of the
wintering population of the piping plover.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If based on
this analysis, we make this determination, then we can exclude the area
only if such exclusion would not result in the extinction of the
species.
Areas Considered for Exclusion Under Section 4(b)(2) of the Act
Under section 4(b)(2) of the Act, we intend to consider the
possible exclusion of Federally owned National Wildlife Refuge lands in
units TX-3, TX-4, TX-16, TX-18, TX-19, and TX-31 from the final
critical habitat designation, These lands are to be covered under CCPs
that are currently being drafted. We will further consider the possible
exclusion of the areas covered by the CCPs being drafted once the
drafts are released and if they are released within a timeframe that is
reasonable for us. We specifically solicit comments on the inclusion or
exclusion of these areas.
Editorial Corrections
We revised the entry in 50 CFR 17.95(b) in the following ways: In
paragraph 1., we made minor revisions to our descriptions of the PCEs
and reformatted the PCEs for clarity. In paragraph 2., we clarified
what is not a PCE. In paragraph 3., we revised the methods used to map
and designate critical habitat units for certain units in Texas, and we
revised the critical habitat unit descriptions and maps for those
units.
Economics
We are preparing an analysis of the economic impacts of proposing
revised critical habitat (Texas Units 3, 4, 7, 8, 9, 10, 14, 15, 16,
18, 19, 22, 23, 27, 28, 31, 32, and 33) for the wintering population of
the piping plover. We will announce the availability of the draft
economic analysis as soon as it is completed, at which time we will
seek public review and comment. At that time, copies of the draft
economic analysis will be available for downloading from the Internet
at http://www.regulations.gov, or by contacting the Corpus Christi
Ecological Services Office directly (see FOR FURTHER INFORMATION
CONTACT section). We may exclude areas from the final rule based on the
information in the economic analysis.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are requesting the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our proposed critical habitat designation is based on
scientifically sound data, assumptions, and analyses. We have invited
these peer reviewers to comment during the public comment period on the
specific assumptions and conclusions regarding the proposed designation
of critical habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any request for hearings. We must receive your request
for a public hearing within 45 days after the date of this Federal
Register publication. Send your request to the person named in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the first hearing.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
[[Page 29312]]
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended RFA to
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
impact on a substantial number of small entities.
The economic analysis prepared for the July 10, 2001, critical
habitat designation (66 FR 36038) identified six activities that may be
affected by the designation of wintering critical habitat for the
piping plover because they occur within or near critical habitat areas.
These activities are: (1) Housing and commercial shoreline development;
(2) dredging and disposal of dredged materials; (3) beach nourishment;
(4) oil and gas exploration; (5) recreational visitation of shoreline;
and (6) waterway operations. At this time, we lack the available
economic information necessary to provide an adequate factual basis for
the required RFA finding. Therefore, we defer the RFA finding until
completion of the draft economic analysis prepared under section
4(b)(2) of the Act and E.O. 12866. This draft economic analysis will
provide the required factual basis for the RFA finding. Upon completion
of the draft economic analysis, we will announce availability of the
draft economic analysis of the proposed designation in the Federal
Register and reopen the public comment period for the proposed
designation. We will include with this announcement, as appropriate, an
initial regulatory flexibility analysis or a certification that the
rule will not have a significant economic impact on a substantial
number of small entities accompanied by the factual basis for that
determination. We have concluded that deferring the RFA finding until
completion of the draft economic analysis is necessary to meet the
purposes and requirements of the RFA. Deferring the RFA finding in this
manner will ensure that we make a sufficiently informed determination
based on adequate economic information and provides the necessary
opportunity for public comment.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This proposed amended rule will not produce a Federal mandate.
In general, a Federal mandate is a provision in legislation, statute or
regulation that would impose an enforceable duty upon State, local, or
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or [T]ribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that would impose an enforceable
duty upon the private sector, except (i) a condition of Federal
assistance or (ii) a duty arising from participation in a voluntary
Federal program.
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because the proposed units do not occur within
the jurisdiction of small governments. The government-owned lands being
proposed for critical habitat designation are owned by the County of
Cameron, the State of Texas, and the U.S. Fish and Wildlife Service.
None of these government entities fit the definition of a ``small
governmental'' jurisdiction. Therefore, a Small Government Agency Plan
is not required. However, we will further evaluate this issue as we
conduct our economic analysis, and review and revise this assessment as
warranted.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the wintering population of the piping plover in Texas in a
takings implications assessment. The takings implications assessment
concludes that this designation of critical habitat for the wintering
population of the piping plover in Texas does not pose significant
takings implications for lands within or affected by the proposed
revised designation. However, we will further evaluate this issue as we
conduct our economic analysis and review and revise this assessment as
warranted.
Federalism
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
[[Page 29313]]
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed critical habitat designation with
appropriate State resource agencies in Texas. Some critical habitat is
still designated in Texas for the piping plover. The designation of
critical habitat on lands currently occupied by the wintering
population of the piping plover imposes no additional restrictions to
those currently in place and, therefore, has little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments because the areas that
contain the features essential to the conservation of the species are
more clearly defined, and the primary constituent elements of the
habitat necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the wintering population of the
piping plover.
Paperwork Reduction Act of 1995
This proposed rule does not contain any new collections of
information that require approval by OMB under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This assertion was upheld by the
Circuit Court of the United States for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)). However, the court ruling in Cape Hatteras Access
Preservation Alliance v. U.S. Department of Interior (344 F. Supp. 2d
108 (D.D.C. 2004)) ordered us to revise the critical habitat
designation for wintering piping plovers in North Carolina and to
prepare an environmental analysis. To comply with that court's order,
we prepared an environmental assessment for that action pursuant to
NEPA, and, as an exercise of our discretion, have chosen to prepare an
environmental assessment for critical habitat designation for the
wintering population of the piping plover in Texas. We will notify the
public when it is drafted and available for comment.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that there are no
Tribal lands occupied at the time of listing with features essential
for the conservation, and no Tribal lands that are essential for the
conservation, of the wintering population of the piping plover in
Texas. Therefore, we have not proposed designation of critical habitat
for the wintering population of the piping plover on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate revised critical habitat for the
wintering population of the piping plover in areas of Texas is not a
significant regulatory action under Executive Order 12866, and we do
not expect it to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. This action, however, may
impact seismic studies for oil and gas drilling; we will further
evaluate energy-related issues as we conduct our economic analysis, and
review and revise this assessment as warranted.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Field Supervisor, Corpus Christi Ecological Services
Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary author of this package is the staff of the Corpus
Christi Ecological Services Office.
[[Page 29314]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. In Sec. 17.95(b), amend the entry for ``Piping Plover
(Charadrius melodus) Wintering Habitat'' as follows:
a. In paragraph 1., revise the text as set forth below;
b. In paragraph 2., revise the text as set forth below;
c. Under paragraph 3., Texas, remove the words ``Texas (Maps were
digitized using 1995 and 1996 DOQQs and National Oceanic and
Atmospheric Administration's (NOAA) Medium Resolution Digital Vector
Shoreline)'' and add in their place a new header, parenthetical text,
and introductory text as set forth below;
d. Remove the critical habitat description for Unit TX-3 and add in
its place a new critical habitat description for Unit TX-3 as set forth
below;
e. Remove the critical habitat description for Unit TX-4 and add in
its place a new critical habitat description for Unit TX-4 as set forth
below;
f. Remove the critical habitat description for Unit TX-7 and add in
its place a new critical habitat description for Unit TX-7 as set forth
below;
g. Remove the critical habitat description for Unit TX-8 and add in
its place a new critical habitat description for Unit TX-8 as set forth
below;
h. Remove the critical habitat description for Unit TX-9 and add in
its place a new critical habitat description for Unit TX-9 as set forth
below;
i. Remove the critical habitat description for Unit TX-10 and add
in its place a new critical habitat description for Unit TX-10 as set
forth below;
j. Remove the critical habitat description for Unit TX-14 and add
in its place a new critical habitat description for Unit TX-14 as set
forth below;
k. Remove the critical habitat description for Unit TX-15 and add
in its place a new critical habitat description for Unit TX-15 as set
forth below;
l. Remove the critical habitat description for Unit TX-16 and add
in its place a new critical habitat description for Unit TX-16 as set
forth below;
m. Remove the critical habitat description for Unit TX-17;
n. Remove the critical habitat description for Unit TX-18 and add
in its place a new critical habitat description for Unit TX-18 as set
forth below;
o. Remove the critical habitat description for Unit TX-19 and add
in its place a new critical habitat description for Unit TX-19 as set
forth below;
p. Remove the critical habitat description for Unit TX-22 and add
in its place a new critical habitat description for Unit TX-22 as set
forth below;
q. Remove the critical habitat description for Unit TX-23 and add
in its place a new critical habitat description for Unit TX-23 as set
forth below;
r. Remove the critical habitat description for Unit TX-27 and add
in its place a new critical habitat description for Unit TX-27 as set
forth below;
s. Remove the critical habitat description for Unit TX-28 and add
in its place a new critical habitat description for Unit TX-28 as set
forth below;
t. Remove the critical habitat description for Unit TX-31 and add
in its place a new critical habitat description for Unit TX-31 as set
forth below;
u. Remove the critical habitat description for Unit TX-32 and add
in its place a new critical habitat description for Unit TX-32 as set
forth below;
v. Remove the critical habitat description for Unit TX-33 and add
in its place a new critical habitat description for Unit TX-33 as set
forth below;
w. Remove the map for ``Texas Units: 1, 2, 4 and southern 3'' and
the map for ``Texas Units: 5 and northern 3'' and add in their place a
new map ``Texas Units 1 to 5'' as set forth below;
x. Remove the map for ``Texas Units: 6 to 14'' and add in its place
two new maps ``Texas Units 6 to 10 and 14'' and ``Texas Units 11 to
13'' as set forth below;
y. Remove the map for ``Texas Units: 15 to 21'' and add in its
place a new map ``Texas Units 15, 16 and 18 to 21'' as set forth below;
z. Remove the map for ``Texas Units: 22, 23, 24, 25 and 26'' and
add in its place a new map ``Texas Units 22 to 27'' as set forth below;
and
aa. Remove the map for ``Texas Units: 26, 27, 28, 29 and 30'' and
the seventh map for ``Texas Units 31, 32, 33, and 34'' and add in their
place a new map ``Texas Units 28 to 34'' as set forth below.
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Piping Plover (Charadrius melodus) Wintering Habitat
1. The primary constituent elements essential for the conservation
of the wintering population of the piping plover are those habitat
components that support foraging, roosting, and sheltering and the
physical features necessary for maintaining the natural processes that
support these habitat components. The primary constituent elements are:
(i) Intertidal sand beaches (including sand flats) or mud flats
(between annual low tide and annual high tide) with no or very sparse
emergent vegetation for feeding. In some cases, these flats may be
covered or partially covered by a mat of blue-green algae.
(ii) Unvegetated or sparsely vegetated sand, mud, or algal flats
above annual high tide for roosting. Such sites may have debris or
detritus and may have micro-topographic relief (less than 20 in (50 cm)
above substrate surface) offering refuge from high winds and cold
weather.
(iii) Surf-cast algae for feeding.
(iv) Sparsely vegetated backbeach, which is the beach area above
mean high tide seaward of the dune line, or in cases where no dunes
exist, seaward of a delineating feature such as a vegetation line,
structure, or road. Backbeach is used by plovers for roosting and
refuge during storms.
(v) Spits, especially sand, running into water for foraging and
roosting.
(vi) Salterns, or bare sand flats in the center of mangrove
ecosystems that are found above mean high water and are only
irregularly flushed with sea water.
(vii) Unvegetated washover areas with little or no topographic
relief for feeding and roosting. Washover areas are formed and
maintained by the action of hurricanes, storm surges, or other extreme
wave actions.
(viii) Natural conditions of sparse vegetation and little or no
topographic relief mimicked in artificial habitat types (e.g., dredge
spoil sites).
[[Page 29315]]
2. Critical habitat does not include manmade structures (such as
bridges, jetties, buildings, roads, and other paved areas) or their
ancillary facilities (such as lawns or other maintained landscaped
areas) and the land on which they are located existing on the effective
date of this rule.
3. * * *
* * * * *
Texas (Maps for units 1, 2, 5, 6, 11, 12, 13, 20, 21, 24, 25, 26,
29, 30, 34, 35, 36, and 37 were digitized using 1995 and 1996 DOQQs and
National Oceanic and Atmospheric Administration's (NOAA) Medium
Resolution Digital Vector Shoreline. Data layers defining map units 3,
4, 7, 8, 9, 10, 14, 15, 16, 18, 19, 22, 23, 27, 28, 31, 32, and 33 were
created for bayside areas using data on known piping plover wintering
locations, 1992 National Wetlands Inventory (NWI) data (except for Unit
TX-22 which had 2001 data available) fitted to 2005 National
Agriculture Imagery Program (NAIP) aerial photographs, and regional
shoreline-defining electronic files.) The primary constituent elements
for the piping plover are closely associated with the following NWI
classifications: M2USN (marine (gulfside) sandy coastline (beach),
regularly inundated by tides), M2USP (marine (gulfside) sandy coastline
(beach), irregularly inundated by tides), E2AB1N (estuarine (bayside)
algal mud or sand flats, regularly inundated by tides), E2AB1P
(estuarine (bayside) algal mud or sand flats, irregularly inundated by
tides), E2AB3M (estuarine (bayside) grass flats of mud or sand,
irregularly inundated by tides), E2USM (estuarine (bayside) sandy shore
(beach/sandbar), rarely exposed by tidal fluctuation), E2USN (estuarine
(bayside) sandy shore (beach/sandbar), regularly inundated by tides),
E2USP (estuarine (bayside) sandy shore (beach/sandbar), irregularly
inundated by tides), L1UBKhs (impounded, artificially flooded open
water dredge spoil pit, greater than 20 ac (8 ha), L2USKhs (impounded,
artificially flooded sandy bottom dredge spoil pit, greater than 20 ac
(8 ha)). To map the gulfside, 2005 NAIP imagery was used as a base and
heads up digitizing of vegetation and water lines at a scale of 1:5,000
was used to produce polygons of critical habitat. Mean lower low
waterline (MLLW) vector data from the National Oceanic and Atmospheric
Administration (NOAA) was averaged with 2005 NAIP aerial photographs to
correct misalignments. Measurements were taken every 100 meters along
Unit TX-3 to determine an average distance between the 2005 NAIP
waterline and the NOAA MLLW line. This 184 ft (56 m) average distance
was then used to get an estimated MLLW line that was applied in all
coastal areas.
* * * * *
Unit TX-3: Padre Island. This unit consists of five subunits:
(1) Subunit TX-3A: South Padre Island--Gulf of Mexico Shoreline.
(2) Subunit TX-3B: South Padre Island--Laguna Madre side.
(3) Subunit TX-3C: North Padre Island--Laguna Madre side.
(4) Subunit TX-3D: North Padre Island--Gulf of Mexico.
(5) Subunit TX-3E: North Padre Island--Mesquite Rincon.
Unit TX-4: Lower Laguna Madre Mainland.
* * * * *
Unit TX-7: Newport Pass/Corpus Christi Pass Beach.
Unit TX-8: Mustang Island Beach.
Unit TX-9: Fish Pass Lagoons.
Unit TX-10: Shamrock Island and Adjacent Mustang Island Flats. This
unit consists of three subunits:
(1) Subunit TX-10A: Shamrock Island.
(2) Subunit TX-10B: Mustang Island: Unnamed sand flat.
(3) Subunit TX-10C: Mustang Island: Lagoon Complex.
* * * * *
Unit TX-14: East Flats.
Unit TX-15: North Pass.
Unit TX-16: San Jose Beach.
Unit TX-18: Cedar Bayou/Vinson Slough.
Unit TX-19: Matagorda Island Beach.
* * * * *
Unit TX-22: Decros Point.
Unit TX-23: West Matagorda Peninsula Beach.
* * * * *
Unit TX-27: East Matagorda Bay/Matagorda Peninsula Beach West.
Unit TX-28: East Matagorda Bay/Matagorda Peninsula Beach East.
* * * * *
Unit TX-31: San Bernard NWR Beach.
Unit TX-32: Gulf Beach Between Brazos and San Bernard Rivers.
Unit TX-33: Bryan Beach and Adjacent Beach.
* * * * *
BILLING CODE 4310-55-P
[[Page 29316]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.000
[[Page 29317]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.001
[[Page 29318]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.002
[[Page 29319]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.003
[[Page 29320]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.004
[[Page 29321]]
[GRAPHIC] [TIFF OMITTED] TP20MY08.005
* * * * *
Dated: May 8, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-10742 Filed 5-19-08; 8:45 am]
BILLING CODE 4310-55-C