[Federal Register: October 31, 2006 (Volume 71, Number 210)]
[Proposed Rules]               
[Page 63979-64002]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Part III

Department of the Interior


Fish and Wildlife Service


50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Critical Habitat 
Designation for the Cape Sable Seaside Sparrow; Proposed Rule

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Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU79

Endangered and Threatened Wildlife and Plants; Critical Habitat 
Designation for the Cape Sable Seaside Sparrow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise critical habitat for the endangered Cape Sable seaside sparrow 
(Ammodramus maritimus mirabilis) under the Endangered Species Act of 
1973, as amended (Act). In total, approximately 156,350 acres (ac) 
(63,273 hectares (ha)) fall within the boundaries of the proposed 
critical habitat designation. The proposed critical habitat is located 
in Miami-Dade and Monroe counties, Florida.

DATES: We will accept comments from all interested parties until 
January 2, 2007. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by December 15, 

ADDRESSES: If you wish to comment, you may submit comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information by mail or hand-
delivery to Tylan Dean, U.S. Fish and Wildlife Service, South Florida 
Ecological Services Office, 1339 20th Street, Vero Beach, Florida 
    2. You may send comments by electronic mail (e-mail) to 
Tylan_Dean@fws.gov. Please see the Public Comments Solicited section below 

for file format and other information about electronic filing.
    3. You may fax your comments to 772-562-4288.
    4. You may submit comments via the Federal eRulemaking Portal: 
http://www.regulations.gov. Follow the instructions for submitting 

    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the South Florida Ecological Services Office, 1339 20th 
Street, Vero Beach, Florida (telephone 772-562-3909).

FOR FURTHER INFORMATION CONTACT: Tylan Dean, South Florida Ecological 
Services Office (see ADDRESSES); telephone 772-562-3909; facsimile 772-
562-4288. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339, 7 days a week and 24 hours a day.


Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of Cape 
Sable seaside sparrow habitat, including areas occupied by Cape Sable 
seaside sparrows at the time of listing and containing features 
essential to the conservation of the species, and areas not occupied at 
the time of listing that are essential to the conservation of the 
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed 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
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES). 
Please submit electronic comments to tylan_dean@fws.gov in ASCII file 
format and avoid the use of special characters or any form of 
encryption. Please also include ``Attn: Cape Sable seaside sparrow'' in 
your e-mail subject header and your name and return address in the body 
of your message. If you do not receive a confirmation from the system 
that we have received your message, contact us directly by calling our 
South Florida Ecological Services Office at 772-562-3909.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their names and home addresses, etc., but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of or officials of organizations or businesses, 
available for public inspection in their entirety.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under the Act's section 4(b)(2), there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would take 
place (in other words, other statutory or regulatory protections, 
policies, or other factors relevant to agency decision-making would not 
prevent the destruction or adverse modification); and (3) designation 
of critical habitat triggers the prohibition of destruction or adverse 
modification of that habitat, but it does not require specific actions 
to restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,311 listed 
species in the United States under the jurisdiction of the Service, 
have designated critical habitat. We address the habitat needs of all 

1,311 listed species through conservation mechanisms such as listing, 
section 7 consultations, the section 4 recovery planning process, the

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section 9 protective prohibitions of unauthorized take, section 6 
funding to the States, the section 10 incidental take permit process, 
and cooperative, nonregulatory efforts with private landowners. The 
Service believes that it is these measures that may make the difference 
between extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent to sue relative to critical habitat, and to comply 
with the growing number of adverse court orders. As a result, listing 
petition responses, the Service's own proposals to list critically 
imperiled species, and final listing determinations on existing 
proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless and is expensive, 
thus diverting resources from conservation actions that may provide 
relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). These 
costs, which are not required for many other conservation actions, 
directly reduce the funds available for direct and tangible 
conservation actions.


    We intend to discuss topics directly relevant to the designation of 
critical habitat in this proposed rule. Additional topics may be found 
under the ``Primary Constituent Elements'' discussion. For more 
information on the Cape Sable seaside sparrow, including 
characteristics and life history, refer to the South Florida Multi-
Species Recovery Plan, available at the South Florida Ecological 
Services Web site http://www.fws.gov/verobeach.

    The Cape Sable seaside sparrow is one of eight extant subspecies of 
seaside sparrow. Its distribution is limited to the short-hydroperiod 
wetlands at the downstream end of the greater Everglades system on the 
southern tip of mainland Florida. Unlike most other subspecies of 
seaside sparrow, which occupy primarily brackish tidal systems (Post 
and Greenlaw 1994, p. 4), the Cape Sable seaside sparrow currently 
occurs primarily in the short-hydroperiod freshwater wet prairies, also 
referred to as marl prairies, though it still occupies brackish marshes 
in some areas.
    The Cape Sable seaside sparrow is generally sedentary, secretive, 
and non-migratory, and it occupies the marl prairies of southern 
Florida year-round. During the breeding season (March to August), male 
sparrows establish and defend territories that are variable in size, 
with average sizes ranging from 2.2 to 8.9 ac (0.9 to 3.6 ha) within 
different sites and years (Werner and Woolfenden 1983, p. 67; Pimm et 
al. 2002, p. 18). Sparrows are monogamous (Post and Greenlaw 1994, p. 
10), with a single female occurring within a male's breeding territory. 
Throughout the breeding season, the majority of a sparrow pair's 
activities occur within this territory, including breeding, feeding, 
and sheltering. Outside of the breeding season, sparrows generally 
remain sedentary in the same general vicinity of their breeding 
territories, but occupy a larger area than the breeding season 
territory. Average non-breeding season home range size was 
approximately 42.1 ac (17.1 ha) and ranged from 14.1 to 137.1 ac (5.7 
to 55.5 ha) (Dean and Morrison 2001, p. 36). Some individuals make 
exploratory movements away from their territories and may occasionally 
relocate their territories and home ranges before again resuming a 
sedentary movement pattern (Dean and Morrison 2001, p. 36).
    Sparrows are generally short-lived, with an average individual 
annual survival rate of 66 percent (Lockwood et al. 2001, p. 278). The 
average lifespan is probably 2 to 3 years. Consequently, a sparrow 
population requires favorable breeding conditions in most years to be 
self-sustaining and cannot persist under poor conditions for extended 
periods (Lockwood et al. 1997, p. 729; Lockwood et al. 2001, p. 281; 
Pimm et al. 2002, p. 74).
    Sparrows generally begin nesting in early March (Lockwood et al. 
2001, p. 278), but they may begin territorial behavior, courtship, and 
nest-building in late February (Werner and Woolfenden 1983, p. 64; 
Lockwood et al. 1997, p. 722). This timing coincides with the dry 
season, and most areas

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within the marl prairies are either dry or only shallowly inundated at 
the beginning of the breeding season. Sparrows build nests above the 
ground surface, typically 6.7 to 7.1 inches (in) (17 to 18 centimeters 
(cm)) over the ground (Werner 1975, p. 147; Lockwood et al. 2001, p. 
278). Nests are woven into clumps of dense vegetation and are well-
concealed (Werner 1975, p. 145; Post and Greenlaw 1994, p. 14). Nest 
cups are consistently concealed from above (Post and Greenlaw 1994, p. 
13), either through construction of a domed cover or through modifying 
vegetation in the vicinity (Werner 1975, p. 142; Post and Greenlaw 
1994, pp. 13-14). The sparrow nesting cycle, from nest construction to 
independence of young, lasts approximately 30 to 50 days (Werner 1975, 
p. 163; Lockwood et al. 2001, p. 278), and sparrows may renest 
following both successful and failed nesting attempts (Werner 1975, p. 
163; Post and Greenlaw 1994, p. 13; Lockwood et al. 2001, p. 278). 
Because of the long breeding season in southern Florida, sparrows 
regularly nest several times within a year and may be capable of 
successfully fledging 2 to 4 clutches, though few sparrows probably 
reach this level of success (Lockwood et al. 2001, p. 278). Second and 
third nesting attempts may occur during the early portion of the wet 
season, and nests later in the season occur over water. The height of 
nests above ground surface increases after water levels rise, and 
average height of late-season nests is 8.3 in (21 cm) above ground 
surface (Lockwood et al. 2001, p. 278).
    Nest success rates vary among years and range from 12 to 53 percent 
(Lockwood et al. 2001, p. 278). Nest predation is the primary 
documented cause of nest failure (Pimm et al. 2002, p. 23), accounting 
for more than 75 percent of all nest failures (Lockwood et al. 1997, p. 
723). Unlike many other wetland species, nest predation rates for 
sparrows are lowest under dry conditions. As water levels begin to rise 
above ground surface with the onset of the summer rains in May or June, 
nests become more detectable, and therefore, nest predation rates also 
rise. Nests that are active after June 1, when water levels are above 
ground, are more than twice as likely to fail as nests during drier 
periods (Lockwood et al. 2001, p. 278). This effect appears to be a 
result of both increased likelihood of nests being flooded and an 
increased likelihood of predation (Lockwood et al. 1997, p. 724; 
Lockwood et al. 2001, p. 278; Pimm et al. 2002, p. 25).
    The Cape Sable seaside sparrow was first discovered in the 
cordgrass (Spartina spp.) marshes on Cape Sable in 1918 and was 
originally thought to be limited in distribution to Cape Sable (Howell 
1919, p.87). On September 2, 1935, a severe hurricane struck the Keys 
and southern Florida, with the hurricane's center passing within a few 
miles of Cape Sable (Stimson 1956, p. 490). Post-hurricane observations 
suggested that, in the vicinity of Cape Sable, water levels resulting 
from the storm surge rose approximately 8 feet (ft) (2.4 meters (m)) 
above normal water levels, and the sparrow was thought to have 
disappeared from the area as a result of the storm, despite occasional 
reports of sparrows that could not be verified (Stimson 1956, p. 492). 
Between 1935 and the 1950s, searches on Cape Sable failed to locate 
sparrows (Stimson 1956, p. 492). Despite the fact that sparrows were 
again reported on Cape Sable in 1970 (Kushlan and Bass 1983, p. 140; 
Werner and Woolfenden 1983, p. 57), the habitat in the area had been 
changing significantly from cordgrass marshes to mangroves and mud 
flats since the 1935 hurricane, and sparrows are considered to have 
been extirpated from this area since 1981 (Kushlan and Bass 1983, p. 
    In 1928, Cape Sable seaside sparrows were reported to the northwest 
of Pinecrest, along the western mainland coast of Florida, in the 
vicinity of what is today Everglades City (Nicholson 1928, p. 237). The 
location of this mainland record was improperly reported, and the true 
location was not accurately reported until 1954 (Sprunt 1954, p. 479). 
Stimson conducted extensive searches on the Florida mainland in the 
vicinity of the corrected 1928 sparrow observation and found sparrows 
to be widespread throughout both coastal cordgrass (reported as S. 
patens, but probably S. bakeri) (Werner and Woolfenden 1983, p. 60) 
marshes and freshwater prairies along the western edge of the 
Everglades (Stimson 1956, p. 490). However, by 1968, Stimson (1968, p. 
867) concluded that widespread fires in this region had severely 
impacted the sparrows in that area, and he expected them to be 
extirpated from the area as a result.
    In the early 1940s, Anderson (1942, p. 12) reported sparrows in the 
coastal marshes in the vicinity of Ochopee. Subsequent searches 
revealed that sparrows occurred south of Ochopee along the coastal 
marshes landward of the mangrove zone (Stimson 1956, p. 492). Werner 
(1975, p. 42) reported that habitat occupied by sparrows in the Ochopee 
area was changing from cordgrass marshes to other species, and 
mangroves were encroaching into the area. Werner's searches in the area 
from 1970 through 1975 (Werner 1975, p. 42) revealed a decline in the 
number of sparrows and the amount of habitat available in the area. 
Sparrows were extirpated from this area by 1981 (Kushlan and Bass 1983, 
p. 143), and there is little or no remaining suitable habitat in the 
    Within the last 20 years, sparrows have consistently occurred 
within the marl prairies that have had appropriate hydrologic and 
vegetation conditions over time. There are six spatially distinct 
regions across the southern Everglades where sparrows currently occur, 
and these same areas have consistently supported the sparrow 
population. These regions are separated from each other by areas of 
unsuitable habitat, such as the forested communities of Long Pine Key, 
the deep-water slough communities of Shark River Slough and Taylor 
Slough, and other areas that do not support the specific conditions 
that sparrows require. The distances between these regions range from 2 
to 20 miles (mi) (3.2 to 32.2 kilometer (km)), and sparrows rarely move 
among the regions (Walters et al. 2000, p. 1107; Lockwood et al. 2001, 
p. 279), though some such movements have now been documented (Lockwood 
2006, p. 2). For the last 20 years, these areas have been commonly 
referred to as sparrow subpopulations A through F (Pimm et al. 2002, p. 
    In 1972, Cape Sable seaside sparrows were discovered in the 
vicinity of Taylor Slough, in what is today known as subpopulation C, 
east of Shark River Slough (Ogden 1972, p. 852; see the individual 
units descriptions in the Proposed Critical Habitat section for 
identification of the subpopulations). Subsequent investigation 
revealed that a sparrow had been reported to Everglades National Park 
(ENP) in this area in 1958, but the observation was never verified 
(Werner 1975, p. 32; Pimm et al. 2002, p. 10). Surveys conducted with 
the use of a helicopter by Werner in 1974 and 1975 sought to 
characterize the distribution and abundance of sparrows in this region. 
These initial surveys revealed that sparrows were widely distributed 
and abundant (Werner 1975, p. 32). The sparrow locations reported 
included locations within what are today known as subpopulations B, C, 
D, E, and F. They occupied an area of approximately 21,745 to 31,629 ac 
(8,800 to 12,800 ha), and the number of sparrows occurring within this 
area was estimated to range from 1,500 to 26,300 individuals (Werner 
1975, p. 32). Because of the magnitude of the area occupied and the 
large estimates of population size, ecologists concluded that sparrows 
probably occurred within this area for

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many years. The difficulty in accessing the areas and the vastness of 
the areas (Kushlan and Bass 1983, p. 145), as well as the secretiveness 
of the sparrow, all contributed to the failure to document the 
sparrow's occurrence in the area previously. The sparrow populations 
within these areas probably fluctuated over time in response to changes 
in habitat suitability resulting from fires and hydrologic conditions 
(Taylor 1983, p. 148; Kushlan and Bass 1983, p. 145). These 
fluctuations may have also contributed to the lack of sparrow 
detections in these areas previously.
    Throughout the known history of the Cape Sable seaside sparrow, the 
species has been recognized to associate with either of two vegetation 
communities: (1) The cordgrass marshes that are partly tidally 
influenced and occur within a narrow band of the coast just landward 
from the mangrove communities, and (2) the short-hydroperiod freshwater 
marl prairies that flank the deeper sloughs of the southern Everglades. 
The tidally influenced cordgrass marshes constitute typical seaside 
sparrow habitat (Post and Greenlaw 1994, p. 3). Occurrence year-round 
within the freshwater marl prairies is relatively unique among seaside 
sparrows, with only the now-extinct dusky seaside sparrow (Ammodramus 
maritimus nigrescens) exhibiting a similar habitat affinity; in those 
freshwater areas occupied by the dusky seaside sparrow, the habitat was 
still primarily composed of cordgrass (Post and Greenlaw 1994, p. 4). 
The freshwater habitats occupied by the Cape Sable seaside sparrow are 
not dominated by cordgrass; the most commonly associated species 
reported is muhly grass (Muhlenbergia filipes) (Werner 1975, p. 77; 
Kushlan and Bass 1983, p. 145; Werner and Woolfenden 1983, p. 59; Post 
and Greenlaw 1994, p. 4). However, a variety of vegetation species 
occurs within the freshwater marl prairies occupied by Cape Sable 
seaside sparrows, including vegetation from which Muhlenbergia is 
absent (Ross et al. 2006, pp. 7-16). Other dominant species that occur 
in these prairies include sawgrass (Cladium jamaicense), Florida little 
bluestem (Schizachyrium rhizomatum), black-topped sedge (Schoenus 
nigricans), and beak rushes (Rhynchospora spp.) (Werner and Woolfenden 
1983, pp. 57-61; Ross et al. 2006, pp. 6-16).
    Cape Sable seaside sparrows occupy the above two community types 
year-round, and the vegetation must support all sparrow life stages. 
Sparrows occur in the heart of the expansive Everglades wetland system, 
in a harsh environment where flooding, fires, and high temperatures 
occur regularly. During periods when the plant communities are dry, 
usually coinciding with the early winter and late spring (December to 
May), sparrows travel across the ground beneath the grasses and only 
occasionally perch on the vegetation. During the wet season (June to 
November), these areas are continually inundated, with peak water 
depths occasionally exceeding 2 ft (0.6 m) (Nott et al. 1998, p. 26). 
During these periods, sparrows travel within the grass, perching low in 
the clumps, hopping among the bases of dense grass clumps, and walking 
over matted grass. They fly more frequently and regularly perch low in 
the vegetation, but they generally remain extremely inconspicuous (Dean 
and Morrison 2001, p. 51).
    Periphyton is another important characteristic of sparrow habitat. 
Periphyton is a complex matrix of calcitic algae and associated organic 
detritus that plays an important role in the development of soils 
within the marl prairies (Davis et al. 2005, p. 825). During wet 
periods, a periphyton mat forms on all submerged substrates, including 
underlying limestone and vegetation stems. Marl soil accretion is 
directly related to the extent and productivity of periphyton (Davis et 
al. 2005, p. 825), and marl soils are consequently generally deeper in 
areas with longer hydroperiods. In some areas, a dense periphyton mat 
forms on the water surface and intertwines with the vegetation such 
that sparrows may be able to move across it under some conditions. 
These periphyton mats are an integral component of marl prairies and 
can affect the vegetation species and structure in an area and even the 
microclimate, which all relates to the suitability of an area for 
    Small tree islands and individual trees and shrubs occur throughout 
the areas occupied by the sparrows, but at a very low density. Sparrows 
do not require woody vegetation during any aspect of their normal 
behavior and generally avoid areas where shrubs and trees are either 
dense or evenly distributed. However, the small tree islands and 
scattered shrubs and trees may serve as refugia during extreme 
environmental conditions and may be used as escape cover when fleeing 
from potential predators (Dean and Morrison 2001, p. 38). Because of 
the sparrows' general aversion to dense trees and woody vegetation, 
encroaching trees and shrubs can quickly degrade potential habitat.
    After fires, sparrows do not regularly occupy burned areas for 2 to 
3 years (Pimm et al. 2002, p. 97; Lockwood et al. 2005, p. 10), though 
they can re-occupy areas after only one year under some conditions 
(Taylor 1983, p. 151; Werner and Woolfenden 1983, p. 62). This is 
probably a result of the sparrow's dependence on some level of 
structural complexity that must develop to provide cover, support 
nests, and allow them to move through the habitat during wet periods. 
Fire is not uncommon within the areas occupied by sparrows, and nearly 
all areas where sparrows currently occur have been burned within the 
past 10 to 20 years (Lockwood et al. 2003, p. 466). Large fires, such 
as the Ingraham fire of 1989, which burned approximately 98,842 ac 
(40,000 ha), pose a significant risk to sparrow subpopulations because 
they have the potential to render the habitat supporting several entire 
sparrow subpopulations unsuitable for 2 to 3 years or more (Lockwood et 
al. 2003, p. 467). A combination of naturally ignited and human-ignited 
(prescribed, arson, or accidental) fires have resulted in different 
fire frequencies in different portions of the sparrow's range. Most of 
the plant species that occur within sparrow habitat are fire-adapted 
and respond quickly following fire (Snyder 2003, pp. 203-204). Several 
of the dominant grass species, including Muhlenbergia, also flower 
primarily following fires during the growing season (Main and Barry 
2002, p. 433). Under normal conditions, fires do not kill the 
individual plants that make up the dominant species in sparrow habitat, 
and fires only remove the above-ground growth and leaf litter (Snyder 
and Schaeffer 2004). The plant species rapidly respond, sprout quickly 
following fire, and grow rapidly. Many of the dominant grasses may grow 
more than 15 in (38 cm) after only a few weeks (Steward and Ornes 1975, 
p. 167; Snyder 2003, pp. 203-204). For this reason, the species 
composition and even the general structural characteristics of the 
vegetation may be nearly indistinguishable from unburned areas only 2 
to 3 years after burning (Lockwood et al. 2005, pp. 8-9). Under 
unfavorable conditions such as extreme wet or dry periods, vegetation 
recovery from fire may be prolonged, and both species composition and 
structure may be affected.
    Hydrology of the area is an important component of the habitat. In 
addition to directly affecting the sparrow and its ability to forage, 
move within habitat, and nest, hydrologic patterns largely dictate the 
plant community composition, and even the fire frequency. Ross et al. 
(2006) have investigated the relationship between vegetation species 
composition and hydroperiods. Their preliminary results

[[Page 63984]]

indicate that hydroperiods in the range of 90 to 270 days support the 
plant species upon which sparrows primarily depend (Ross et al. 2006, 
pp. 14, 40). Longer hydroperiods result in such unfavorable habitat 
conditions as dense, continuous growth of sawgrass or spike rushes 
(Eleocharis spp.) that sparrows do not occupy. Shorter hydroperiods may 
allow encroachment of woody species and may have an elevated potential 
of fire (Davis et al. 2005, p. 828). Within this optimal inundation 
duration, several different vegetation associations may result, but 
most are used regularly by sparrows. The local variability across the 
landscape within areas where sparrows occur produces a heterogeneous 
arrangement of vegetation conditions that provide habitat for sparrows 
during some environmental conditions. A complex relationship between 
hydrologic conditions, fire history, and soil depth determines the 
specific vegetation conditions at a site, and variation in these 
characteristics may result in a complex mosaic of vegetation 
characteristics (Taylor 1983, p. 152; Ross et al. 2006, pp. 1-46). This 
variability is characteristic of these habitats.
    Average annual rainfall in the Everglades is approximately 56 in 
(142 cm) (ENP 2005, p. 15), with the majority falling within the summer 
months, which coincides with the latter half of the sparrow nesting 
season. This rainfall has a strong influence on the hydrologic 
characteristics of the marl prairies. However, throughout southern 
Florida, including sparrow habitat, hydrologic conditions are also 
strongly influenced by water management actions. A complex system of 
canals, levees, pumps, and other water management structures, operated 
by complex operational rules, can have profound impacts on the 
hydrologic conditions throughout much of the remaining marl prairies 
(Johnson et al. 1988, p. 31; Van Lent and Johnson 1993, pp. 4-7; Pimm 
et al. 2002, p. 106).
    The interaction of fire and flooding also strongly influences the 
suitability of habitat for sparrows. In the most extreme case, the 
vegetation in areas that burn and are subsequently flooded within 1 to 
3 weeks after the fire, either as a result of a natural rainfall event 
or human-caused hydrologic changes, may not recover for a long period, 
possibly 10 years or more (Ross 2006). Alternatively, if water levels 
overtop the sprouting grasses, the grasses may die, resulting in an 
absence of vegetation. Recovery of vegetation from these circumstances 
has to result from seed germination, which requires a much longer time 
for recovery and may result in a different plant species composition 
and structure from the vegetation that was present prior to the fire. 
Under less extreme conditions, vegetation may recover following fire 
more quickly when water levels are near the soil surface, providing 
ample water for the plants.
    The six distinct areas that Cape Sable seaside sparrows occupy have 
different environmental conditions that affect the likelihood of 
flooding and fire. Areas of sparrow habitat that are at higher 
elevation or in areas that tend to be overdrained, such as some areas 
proximate to urban and agricultural areas (Van Lent and Johnson 1993, 
p. 5), are consequently more likely to burn under dry conditions, but 
may be more likely to be favorable to sparrows under very wet 
conditions. Similarly, areas of sparrow habitat that are immediately 
downstream from water control structures and in relatively low-lying 
areas are generally less likely to burn frequently (Ross et al. 2006, 
p. 43), but they may be more subject to damaging water levels than 
other areas during wet periods (Nott et al. 1998, p. 31; Pimm et al. 
2002, p. 107). This variability in the physical and environmental 
characteristics among areas occupied by the sparrows, in addition to 
the local meteorological variability within the region, may help 
maintain the sparrow population over time.

Previous Federal Actions

    On March 11, 1967 (32 FR 4001), the Cape Sable seaside sparrow was 
determined to be ``threatened with extinction,'' and was conferred 
protection under the Endangered Species Preservation Act (Pub. L. 89-
669). The Cape Sable seaside sparrow was subsequently added to the list 
of species protected under the Endangered Species Conservation Act of 
1969 (Pub. L. 91-135), and all species listed on the Conservation Act 
were adopted by the Act in 1973 and assigned to endangered status. 
Critical habitat was designated for the Cape Sable seaside sparrow on 
August 11, 1977 (42 FR 40685) and was corrected on September 22, 1977 
(42 FR 47840). The 1977 critical habitat designation for Cape Sable 
seaside sparrow encompasses approximately 197,260 ac (79,828 ha). The 
first recovery plan for the sparrow was completed in April 1983. A 
revised recovery plan for the sparrow was finalized in May 1999. On 
August 26, 1999, Sidney Maddock, Biodiversity Legal Foundation, 
submitted a petition to the Service, on behalf of himself, the 
Biodiversity Legal Foundation, the Florida Biodiversity Project, Brian 
Scherf, and Rosalyn Scherf, to revise critical habitat for the Cape 
Sable seaside sparrow. On July 10, 2000 (65 FR 42316), we published a 
90-day finding in which we determined that the petition presented 
substantial information indicating that revision may be warranted. On 
October 23, 2001 (65 FR 53573), we published a 12-month finding in 
which we announced that revision of critical habitat may be warranted 
as a result of detailed new information about sparrow distribution and 
ecology that had been obtained since critical habitat was originally 
designated. We concluded that some new areas would likely need to be 
added and some removed from the critical habitat designation. For more 
information on previous Federal actions, including the rationale for 
revising critical habitat, refer to that 12-month finding.
    Until now, work on the revision of critical habitat for the Cape 
Sable seaside sparrow has been precluded due to other, higher priority 
listing and critical habitat actions. On December 20, 2000, a lawsuit 
was filed in the U.S. District Court for the District of Columbia 
alleging that the Service had not complied with the Act by failing to 
issue a 12-month finding as to how it planned to proceed with the 
petitioned revision to critical habitat and that the revision was 
withheld or unreasonably delayed under the Administrative Procedure Act 
(5 U.S.C. 551 et seq.). On September 30, 2003, the Court ruled that the 
Service complied with the Act by issuing the finding (see above), and 
was exercising reasonable discretion in postponing developing a 
proposed rule to revise critical habitat (Biodiversity Legal Foundation 
v. Norton, 285 F. Supp. 2d (D.D.C. 2003)). However, it ordered the 
Service to specify a date on which we would begin work on a rule to 
revise critical habitat for the Cape Sable seaside sparrow and estimate 
how long the process would take. On November 28, 2003, the Service 
notified the Court that a proposed rule to revise the critical habitat 
would be submitted to the Federal Register by October 24, 2006, and a 
final rule would be completed within 12 months of the publication of 
the proposed rule.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) 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 (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or

[[Page 63985]]

protection; and (ii) 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 to use and 
the use of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of 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 government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have 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 (i.e., areas on which are found the primary constituent 
elements (PCEs), as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. [As discussed below, 
such areas may also be excluded from critical habitat under section 
4(b)(2) of the Act.] Furthermore, when the best available scientific 
data do not demonstrate that the conservation needs of the species 
require additional areas, we will not designate critical habitat in 
areas outside the geographical area occupied by the species at the time 
of listing. However, an area that was not known to be occupied at the 
time of listing but is currently occupied by the species will likely be 
essential to the conservation of the species and, therefore, typically 
included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Act, 
published in the Federal Register on July 1, 1994 (59 FR 34271), and 
Section 515 of the Treasury and General Government Appropriations Act 
for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated 
Information Quality Guidelines issued by the Service, provide criteria, 
establish procedures, and provide guidance to ensure that decisions 
made by the Service represent the best scientific data available. They 
require Service 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 determining which areas are critical 
habitat, a primary source of information is generally the listing 
package for the species. Additional information sources 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. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, 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 may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
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 
(HCP), or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 


    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas that contain the physical and 
biological features that are essential to the conservation of the Cape 
Sable seaside sparrow and other areas that are essential to the 
conservation of the sparrow. We reviewed all available published and 
unpublished literature about the ecology of the sparrow, including the 
1999 petition and supporting information provided with it. We reviewed 
the revised recovery plan (Service 1999a) for the sparrow, as well as 
the previous recovery plan (Service 1983). We evaluated management 
plans that address specific management needs of sparrows and their 
habitats and past section 7 consultations that addressed the needs of 
the sparrow, including the 1999 jeopardy biological opinion on Test 7 
of the Experimental Program of Water Deliveries (Service 1999b), and 
the reasonable and prudent measures that were implemented as a result 
of the biological opinion. We reviewed reports received from section 7 
consultations and from researchers who hold section 10(a)(1)(A) 
research permits. We reviewed past records of sparrow occurrence, 
distribution, and habitat use over time that were compiled by Florida 
Fish and Wildlife Conservation Commission (FWC) personnel, National 
Park Service (NPS) personnel, and independent researchers contracted by 
the Service and the NPS. We obtained spatial information on the 
location of sparrow occurrences recorded on surveys from 1981 to 
present and spatial data that reflect vegetation type, fire history, 
and hydrologic conditions within these areas. These data were entered 
into a geographic information system (GIS) for analysis. We reviewed 
information resulting from hydrologic modeling of several water 
management regimes that have been implemented in the region. We also 
evaluated the conclusions and recommendations that resulted from an 
independent peer review of the science related to sparrows and their 
management that was conducted by the American Ornithologists' Union in 
1999 (Walters et al. 2000), and the recommendations and conclusions of 
the 2003 South Florida Ecosystem Restoration Multi-species Avian 
Workshop (SEI 2003), which was held to develop a common understanding 
of how four avian species, including the Cape Sable

[[Page 63986]]

seaside sparrow, would respond to Everglades restoration.
    We have also reviewed available information on the habitat 
requirements of this species. In determining PCEs, we reviewed all 
available published and unpublished literature on the ecology, habitat 
needs, and factors limiting the sparrow's occurrence and distribution, 
including information in published, peer-reviewed journal articles; 
unpublished reports and theses; and preliminary results from ongoing 
    The original critical habitat designation (August 11, 1977, 42 FR 
40685; corrected September 22, 1977, 42 FR 47840) was evaluated 
thoroughly during our analysis. However, the 1977 rule did not include 
the specific criteria used to delineate the boundaries of the original 
designation and did not identify any PCEs. Therefore, for this proposed 
rule, we chose to begin our analysis by considering historic habitat 
available to the species and habitat areas that support or have 
recently supported sparrows. All historical and recent locations of 
sparrow occurrences were mapped to better delineate sparrow habitat. 
Current and historical habitat data from several sources were also 
evaluated to identify areas outside of the known occupied range of the 
Cape Sable seaside sparrow that may support sparrows or have the 
potential to support sparrows. However, while historical habitat maps 
identified several areas outside of the known occupied range where 
sparrows may have occurred historically, these areas no longer contain 
habitat features that would support sparrows. Therefore, we do not 
propose as revised critical habitat any areas outside the geographical 
areas presently occupied by the species. For the purpose of this rule, 
areas presently occupied are those where sparrows have been recorded 
between 1981 and the present. We are not proposing to designate 
critical habitat on Cape Sable, in the Ochopee area, or in agricultural 
areas in the vicinity of Homestead where sparrows previously occurred.
    After considering these habitat areas, our efforts focused on 
identifying those areas occupied at the time of listing that contain 
the physical and biological features essential to the conservation of 
Cape Sable seaside sparrows and those other areas that are essential to 
the conservation of the Cape Sable seaside sparrow and are presently 
occupied. To determine critical habitat boundaries, we began with 
comprehensive surveys of sparrow habitat conducted from 1981 to 2006 to 
identify all survey points where sparrows have been detected. Sparrow 
surveys are based on a point-count survey method, which is a standard 
method for passerine birds. Surveys are conducted each year during the 
peak of sparrow breeding season. Details of the survey are described in 
Pimm et al. 2002. An array of survey points has been established across 
all potential sparrow habitats with survey points arranged on a grid. 
Because the survey area covers an expanse of area that does not contain 
roads or trails, observers are dropped off at survey points from a 
helicopter. The helicopter departs the area prior to the count 
initiating. An observer records all sparrows heard or seen at the point 
during a 7-minute period. The great majority of sparrow detections 
consist of territorial males. Following the completion of the count, 
the helicopter returns to transport the observer to the next survey 
point. Each survey point is visited once per season.
    Because survey points are arranged on a 0.6-mi (1-km) grid and 
sparrows may only be detected accurately within 656 ft (200 m) of a 
survey point (Pimm et al. 2002, p. 153), some areas between survey 
points remain unsurveyed. We used a 2,460-ft (750-m) radius around each 
sparrow occurrence to account for unsurveyed areas adjacent to or 
between the survey points where sparrows likely occurred. The 2,460-ft 
(750-m) radius distance is approximately half of the distance between 
diagonally adjacent survey points. In addition, this distance is 
slightly larger than the sum of the reliable sparrow detection distance 
from a point (200 m) plus the diameter of an average non-breeding 
season sparrow home range (465 m, assuming a circular home range based 
on home range sizes in Dean and Morrison 2001, p. 36). This distance 
consequently represents an estimate of the area of habitat that 
sparrows detected at a point are likely to use.
    We drew a boundary that encompassed the 750-m radius around sparrow 
locations but also took into account the particular habitat 
characteristics as determined through detailed inspection of satellite 
imagery, aerial photography, and habitat maps. Outlying sparrow 
occurrences that were recorded in only one year and were not adjacent 
to other recorded sparrow observations were excluded. Areas along the 
boundary that did not contain features essential for the sparrow (such 
as tree islands, cypress forest, and deep-water slough communities) 
were excluded from the unit. The resulting boundary of each unit 
encompassed the core areas of habitat that have been occupied by 
sparrows since 1981. This approach relies on the results of multiple 
years of surveys and consequently provides a robust assessment of 
sparrow habitat.
    We believe the method we have used to delineate critical habitat 
encapsulates the habitat that is important over time for all aspects of 
the sparrow's life history, accounting for the degree of natural 
variability in environmental and habitat conditions that occur within 
the Everglades.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we consider within areas occupied by the species at the time 
of listing those physical and biological features that are essential to 
the conservation of the species (PCEs), and that may require special 
management considerations and protection. These include, but are not 
limited to, space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing (or development) of offspring; and habitats 
that are protected from disturbance or are representative of the 
historic geographical and ecological distributions of a species.
    The following information provides the justification and background 
for the PCEs for the Cape Sable seaside sparrow as they are defined at 
the end of the Primary Constituent Elements section.

Space for Individual and Population Growth and Normal Behavior (Open 
Contiguous Habitat)

    Sparrow subpopulations require large patches of contiguous open 
habitat (approximately 4,000 ac/1,619 ha or larger). The minimum area 
required to support a population has not been specifically determined, 
but the smallest area that has remained occupied by Cape Sable seaside 
sparrows for an extended period is this size. Individual sparrows are 
area-sensitive and generally avoid the edges where other habitat types 
meet the marl prairies. They will only occupy small patches (less than 
100 ac; 40.5 ha) of marl prairie vegetation when the patches occur 
within large, expansive areas and are not close to forested boundaries 
(Dean and Morrison 2001, p. 62-63). Once sparrows establish a breeding 
territory, they exhibit high site fidelity, and each individual sparrow 
may only occupy a small area for the majority of its life. Because 
sparrows are generally sedentary and avoid forested areas, they are not 
likely to travel great distances to find mates or to find outlying 
patches of

[[Page 63987]]

suitable habitat. The occurrence of sparrows over time within each of 
the subpopulations shows a centrality in which sparrows most 
consistently occur and are most abundant near the center of the patch 
of habitat in which they occur.
    Within the marl prairies, individual trees or shrubs greater than 
4.9 ft (1.5 m) tall at a density greater than or equal to 2.5 per ac (1 
per ha), excluding tree islands composed of native tropical-Caribbean 
species occurring on an elevated substrate, will make the site 
    As detailed in the background section, structure of habitat within 
the marl prairie (muhly grasses and little overstory) and areas of 
potential habitat are also important to sparrows because of the 
inherent variability in habitat conditions. While there is relatively 
little elevational variation within the Everglades, differences in 
elevation as small as 12 in (30 cm) can result in very different plant 
community and habitat characteristics. Single rainfall events in the 
region can deposit greater than 12 in (30 cm) of rain within a short 
period, and the variability in elevation and vegetation characteristics 
is critical to provide refugia for sparrows under these adverse 


    While detailed information about the diet of sparrows is not known, 
invertebrates comprise the majority of their diet, though sparrows may 
also consume seeds when they are available (Werner 1975, p. 124; Post 
and Greenlaw 1994, p. 5). Howell (1932, p. 463) identified the contents 
of 15 sparrow stomachs and found remains primarily of insects and 
spiders, as well as amphipods, mollusks, and plant matter. Primary prey 
items that are fed to nestlings during the breeding season include 
grasshoppers (Orthoptera), moths and butterflies (Lepidoptera), 
dragonflies (Odonata), and other common large insects (Post and 
Greenlaw 1994, p. 5; Lockwood et al. 1997, p. 726). Adult sparrows 
probably consume mainly the same species during the nesting season. 
Sparrows may consume different proportions of different species over 
time and among sites, suggesting that they are dietary generalists 
(Pimm et al. 2002, p. 23). During the non-breeding season, preliminary 
information from evaluation of fecal collections suggests that a 
variety of small invertebrates, including weevils and small mollusks, 
are regularly consumed (Dean and Morrison 2001, p. 54). Evidence of 
seed consumption was only present in four percent of samples (Dean and 
Morrison 2001, p. 54). These non-breeding season samples may not be 
representative of the foods most frequently consumed during that season 
and may only represent a portion of the items ingested.
    While the sparrow appears to be a dietary generalist, an important 
characteristic of sparrow habitat is its ability to support a diverse 
array of insect fauna. In addition, these food items must be available 
to sparrows both during periods when there is dry ground and during 
extended periods of inundation. The specific foraging substrates used 
are unknown, but they probably vary throughout the year in response to 
hydrologic conditions.

Sites to Support Foraging, Nesting, and Sheltering

    Sparrows maintain territories that support all aspects of their 
life history (Werner and Woolfenden 1983, p. 67) and sparrows are 
completely reliant on the vegetation, like muhly grass, within their 
home ranges for foraging, nesting, and sheltering. Vegetation must also 
be sufficient to support them during extreme hydrologic conditions. 
Favorable vegetation characteristics are essential to the sparrow's 
survival and conservation.
    During the dry portion of the year (December to May), when water 
levels are near or below ground surface, vegetation must be 
sufficiently dense to provide cover from potential predators like 
raptors and small mammalian predators, as well as for concealing nests. 
Sparrows most commonly move across the ground's surface. During the dry 
portion of the breeding season (March to May), sparrows build nests 
above the ground but relatively low in the vegetation (6.7 to 7.1 
inches (17 to 18 cm) above the ground; Lockwood et al. 2001, p. 278).
    During the wet portion of the year (June to November), the majority 
of or the entire ground surface may be inundated for extended periods. 
During these periods, the vegetation within a sparrow's home range 
serves as the substrate for sparrows, and they travel over and through 
it. Vegetation must be sufficiently dense and tall such that it can 
support the weight of sparrows as they move through it. In addition, it 
must provide cover and escape refugia in the structure of the plants 
from predators. Vegetation must also be sufficiently dense to support 
nests above the water. During the wet portion of the sparrow breeding 
season (June to August), sparrows build their nests higher in the 
vegetation than during dry periods, an average of 8.3 in (21 cm) above 
the ground surface (Lockwood et al. 2001, p. 278). Even at the nest 
height, there must be sufficient height and density of vegetation to 
cover and conceal nests.
    Vegetation must provide sufficient diversity and structure to 
provide foraging opportunities for sparrows. The birds must be able to 
find and capture insect prey both during periods when the ground is dry 
and when the area is inundated. Seeds that are consumed during the wet 
season must be gleaned from standing vegetation since any seeds on the 
ground are covered by water and periphyton and are inaccessible to 

Hydrologic Regime

    Hydrologic conditions have significant effects on sparrows both 
directly and indirectly. First, depth of inundation within sparrow 
habitat is directly related to the sparrow's ability to move, forage, 
nest, and find shelter and cover from predators and harsh environmental 
conditions. At some extreme water levels, such as those that occurred 
within some areas of sparrow habitat in October 1995, when water levels 
were more than 2 ft. (0.6 m) above ground surface, even the majority of 
the vegetation in sparrow habitat is completely inundated, leaving 
sparrows with few refugia. Conditions such as these may result in 
significant impacts to sparrow survival, and if they occur during the 
breeding season, these water levels will cause flooding and loss of 
sparrow nests (Nott et al. 1998, p. 31; Pimm and Bass 2002, p. 416 ). 
Even more moderate water levels, around 6 in. (15 cm) above ground 
surface, may sufficiently inundate some habitat such that sparrows are 
incapable of finding shelter and moving around within limited areas. 
These water levels, when they occur during sparrow nesting season, 
result in increased rates of nest failure due to depredation (Lockwood 
et al. 1997, p. 724).
    The hydrologic regime also affects sparrows indirectly through its 
effects on the vegetation community. Persistent increases in 
hydroperiod may quickly result in changes in vegetation communities 
from marl prairies or mixed prairies to sawgrass-dominated communities 
resembling sawgrass marshes (Nott et al. 1998, p. 30). Average 
hydroperiods that extend beyond 210 days per year generally result in 
sawgrass marsh communities (Ross et al. 2006, p. 14).
    Conversely, areas that are subjected to short hydroperiods 
generally have higher fire frequency than longer-hydroperiod areas 
(Lockwood et al. 2003, p. 464; Ross et al. 2006, p. 43), and are 
readily invaded by woody

[[Page 63988]]

shrubs and trees (Werner 1975, p. 204; Davis et al. 2005, pp. 824-825). 
Both an increased incidence of fire and an increased density and 
occurrence of shrubs detract from the suitability of an area as sparrow 
    The plant species composition and density in the Everglades are 
largely influenced by hydroperiods. Hydroperiods that range from 60 to 
270 days support the full variety of vegetation conditions that are 
generally suitable for sparrows (Ross et al. 2006, p. 14), though the 
vegetation composition and structure may vary significantly within this 


    The soils that underlie sparrow habitat are composed almost 
entirely of calcitic marl. These soils are not rich in organic matter 
and are formed when periphyton mats precipitate calcite (Davis et al. 
2005, p. 825). In areas where hydroperiods are short, periphyton mats 
do not form, and marl soil accretion is slow, resulting in shallow 
soils (sometimes less than 0.8 in. (2 cm)) that do not support dense 
plant growth. The vegetation community within the marl prairies is 
uniquely associated with marl soils (Davis et al. 2005, p. 825) and 
does not occur on other soil series, though individual plant species 
that occur in marl prairies may occur in other conditions.
    The short hydroperiods within these marl prairie communities also 
result in oxidation of organic matter or consumption of organic matter 
during fires. Sawgrass marsh plant communities may become established 
in areas with longer hydroperiods that usually contain organic peat 
soils that dry less frequently than marl prairies (Ross et al. 2006, p. 
10; Ogden 2005, p. 813). Marl soils, and particularly deeper marl soils 
formed through continuous deposition of calcitic sediments from 
periphyton, support the density and diversity of plant species upon 
which sparrows rely. While similar vegetation may occasionally occur 
over peat soils with a surficial periphyton layer, these areas may not 
support sparrow habitat in the long term because they may tend to 
succeed toward sawgrass marsh vegetation under long hydroperiods, or 
they may be significantly altered when fires consume underlying peats 
during dry conditions.

Primary Constituent Elements for the Cape Sable Seaside Sparrow

    Based on the above discussion of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Cape Sable seaside sparrow's PCEs consist of:
    (1) Calcitic marl soils characteristic of the short-hydroperiod 
freshwater marl prairies of the southern Everglades.
    (2) Herbaceous vegetation that includes greater than 15 percent 
combined cover of live and standing dead vegetation of one or more of 
the following species (when measured across an area of greater than 100 
feet 2 per 30.5 meters 2): Muhly grass 
(Muhlenbergia filipes), Florida little bluestem (Schizachyrium 
rhizomatum), black-topped sedge (Schoenus nigricans), and cordgrass 
(Spartina bakeri).
    (3) Contiguous open habitat. Sparrow subpopulations require large, 
expansive, contiguous habitat patches with few or sparse woody shrubs 
or trees.
    (4) Hydrologic regime such that the water depth, as measured from 
the water surface down to the soil surface, does not exceed 7.9 inches 
(20 cm) during the period from March 15 to June 30 at a frequency of 
more than 2 out of every 10 years.
    The above PCEs describe: (1) Soils that are widespread in the 
Everglades short-hydroperiod marshes and support the vegetation types 
that the sparrows rely on; (2) plant species that are characteristic of 
sparrow habitat in a variety of hydrologic conditions, that provide 
structure sufficient to support sparrow nests, and that comprise the 
substrate that sparrows utilize when there is standing water; (3) 
contiguous open habitat because sparrows require large, expansive, 
contiguous habitat patches with sparse woody shrubs or trees; (4) 
hydrologic conditions that would prevent flooding sparrow nests, 
maintain hospitable conditions for sparrows occupying these areas, and 
generally support the vegetation species that are essential to 
sparrows; and (5) overall, the habitat features that support the 
invertebrate prey base the sparrows rely on and the variability and 
uniqueness of habitat that provides, for example, periphyton mats for 
sparrows to survive in the southern Everglades.
    This proposed designation is designed for the conservation of those 
areas containing PCEs necessary to support the life history functions 
that were the basis for the proposal. Because not all life history 
functions require all the PCEs, not all proposed critical habitat will 
contain all the PCEs.
    Units are designated based on sufficient PCEs being present to 
support one or more of the species' life history functions. Some units 
contain all PCEs and support multiple life processes, while some units 
contain only a portion of the PCEs necessary to support the species' 
particular use of that habitat. Where a subset of the PCEs is present 
at the time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.

Criteria Used To Identify Critical Habitat

    We are proposing to designate revised critical habitat on lands 
that were determined to be occupied at the time of listing and that 
contain sufficient PCEs to support life history functions essential to 
the conservation of Cape Sable seaside sparrows. In addition, we are 
proposing to designate areas that were identified as occupied after 
listing and that we have determined to be essential to the conservation 
of the sparrow.
    An area is considered for designation as critical habitat when it 
supports some portion of a subpopulation of Cape Sable seaside sparrow 
and meets either of the following criteria: (1) Possesses one or more 
of the PCEs and was occupied at the time of listing by sparrows, or (2) 
is determined to be currently occupied by the Cape Sable seaside 
sparrow through annual surveys conducted during the period 1981 to 
present and is essential to the conservation of the species. Those 
areas where sparrows were recorded from 1981 to present represent the 
areas that we are considering to be currently occupied.
    Following the strategy outlined above, we began with records of 
sparrow occurrence recorded from comprehensive surveys conducted from 
1981 to 2006 and identified all survey points where sparrows had been 
detected. These areas have consistently supported the core of the 
current sparrow subpopulations over a variety of conditions. In the 
variable environment of the Everglades wetlands, the size and 
distribution of the sparrow subpopulations may change in response to 
environmental conditions, fires, and other factors. In addition, the 
vegetation within these units may change in response to varying 
environmental conditions. These unit boundaries were delineated to 
provide sufficient area such that these subpopulations may continue to 
persist, even when taking into account some degree of vegetation change 
and changes in population size that may occur under adverse conditions.
    Sparrow surveys were conducted in 1981 and each year from 1992 
through present, but every survey point was not necessarily surveyed in 
every year. In addition, surveys cannot confirm the absence of sparrows 
from a survey

[[Page 63989]]

point. To address the tendency to underestimate the occurrence and 
distribution of sparrows that results from incomplete surveys and 
inability to reliably determine absence of sparrows, a survey point was 
considered to be occupied if a sparrow was recorded in at least one 
year during the period from 1981 to 2006.
    The criteria we employed to delineate the boundaries consistently 
encompass the areas where sparrows have occurred, despite the fact that 
sparrows may not occur at every point within unit boundaries in every 
year. All subpopulations where sparrows currently occur were included 
in unit boundaries because flooding and the risk resulting from large 
fires (Lockwood et al. 2003, p. 467) makes, over time, several entire 
units unsuitable for sparrows for extended periods. When this occurs, 
maintaining suitable habitat that supports sparrows in other 
subpopulations is essential to ensure that the impacted units could be 
repopulated through immigration or through active management.
    This proposed revised designation does not include all of the 
historical habitat areas that were occupied by the Cape Sable seaside 
sparrow. However, it includes the majority of the remaining freshwater 
marl prairies that currently support the sparrow population and 
portions of the Spartina marshes that support sparrows and reflects the 
communities that were historically occupied by the sparrow throughout 
its range. Such areas as dense sawgrass marshes, pine or cypress 
forests, and mangroves are not included in this proposed revised 
designation. We conducted field reconnaissance of some portions of the 
units and eliminated highly degraded sites, isolated fragments of 
potential habitat that were unlikely to contribute to the maintenance 
of the sparrow subpopulations, and areas where mangroves have recently 
encroached into marl prairie vegetation or where cypress trees are 
present, but not visible on aerial photographs. We believe the seven 
remaining, currently occupied areas presently contain essential habitat 
features or are essential to the conservation of the Cape Sable seaside 
sparrow and, therefore, we are proposing as revised critical habitat 
units for the sparrow. These seven units in total would result in an 
overall reduction of 40,918 ac (16,560 ha) in the total critical 
habitat acreage compared to the original critical habitat designation.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including within the boundaries of the map 
contained within this proposed rule developed areas such as buildings, 
paved areas, and other structures that lack PCEs for the Cape Sable 
seaside sparrow. The scale of the maps prepared under the parameters 
for publication within the Code of Federal Regulations may not reflect 
the exclusion of such developed areas. Any such structures and the land 
under them inadvertently left inside critical habitat boundaries shown 
on the maps of this proposed rule have been excluded by text in the 
proposed rule and are not proposed for designation as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species or PCEs in 
adjacent critical habitat.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed species incidental to otherwise lawful activities. 
An incidental take permit application must be supported by an HCP that 
identifies conservation measures that the permittee agrees to implement 
to minimize and mitigate the impacts on the species by the requested 
incidental take. We often exclude non-Federal public lands and private 
lands that are covered by an existing operative HCP and executed 
implementation agreement under section 10(a)(1)(B) of the Act from 
designated critical habitat because the benefits of exclusion outweigh 
the benefits of inclusion as discussed in section 4(b)(2) of the Act. 
There are no areas within the proposed revised critical habitat 
boundaries for the Cape Sable seaside sparrow that have HCPs. The units 
represent mostly Federal and some State land. We will consider the 
economic impacts of this proposal, and may exclude some portion based 
on the results of this analysis (see Economic Analysis section).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs and 
may require special management considerations or protection. As 
discussed here and below within the unit descriptions, we find that all 
of the PCEs in the areas of proposed revised critical habitat 
determined to be occupied at time of the Cape Sable seaside sparrow's 
listing (Units 1 and 2) may require special management considerations 
or protection due to threats to the species or its habitat (so do Units 
3 through 7, although this finding is not necessary to propose them as 
critical habitat). Such management considerations or protection 
include: measures to prevent damaging hydrologic conditions, control of 
invasive exotic plant species, and measures to prevent anthropogenic 
fires from spreading through Cape Sable seaside sparrow habitat.

Proposed Critical Habitat Designation

    We are proposing seven units as revised critical habitat for the 
Cape Sable seaside sparrow. The critical habitat units described below 
constitute our best assessment, at this time, of the areas determined 
to be occupied at the time of listing, that contain one or more of the 
PCEs, and that may require special management; and those additional 
areas that were not occupied at the time of listing but were found to 
be essential to the conservation of the Cape Sable seaside sparrow. We 
consider all units as currently occupied. The area proposed for 
designation as revised critical habitat differs significantly from the 
original 1977 designation. The critical habitat boundaries in the 1977 
designation were based on section-township-range boundaries, and only 
delineated relatively large, general areas within which sparrows were 
known to occur at that time. Consequently, many areas originally 
designated were never Cape Sable seaside sparrow habitat, such as 
forested areas of Long Pine Key in Everglades National Park, dwarf 
cypress forests (also Everglades National Park), deep water slough 
communities, and agricultural areas. These areas, therefore, are not 
being proposed for inclusion in the revised critical habitat 
designation, and we have instead sought to accurately delineate only 
the specific areas that were important to sparrows in the proposed 
revision. Two of the seven critical habitat units in the proposed 
designation have been added since the original designation, based on an 
improved understanding of sparrow distribution and important sparrow 
habitat characteristics that has been developed since the 1977 
designation. For further information on the changes from the original 
designation, see the descriptions of the individual units below.
    The seven units proposed for designation as Cape Sable seaside 
sparrow critical habitat are: (1) Marl prairie habitats that support 
the main portion of sparrow subpopulation A within ENP and Big Cypress 
National Preserve (BCNP) that lie on the western side of Shark River 
Slough; (2) brackish cordgrass marshes and freshwater marl prairies 
that support a portion of sparrow subpopulation A within ENP and BCNP 
in the region known as the Stairsteps (for its jagged park boundary),

[[Page 63990]]

lying in the strip of prairie habitat between the coastal mangroves and 
the cypress forests of BCNP; (3) marl prairie habitats that support 
sparrow subpopulation B and lie exclusively within ENP in the vicinity 
of the Main Park Road, between Shark River Slough and Taylor Slough; 
(4) marl prairie habitat that supports sparrow subpopulation C within 
ENP along its eastern boundary in the vicinity of Taylor Slough; (5) 
marl prairie habitats that support sparrow subpopulation D within ENP 
and the State-owned Southern Glades Wildlife and Environmental Area to 
the east of Taylor Slough; (6) marl prairie habitats that support 
sparrow subpopulation E within ENP, along the eastern edge of Shark 
River Slough; and (7) marl prairies that support sparrow subpopulation 
F within the northern portion of ENP along its eastern boundary and 
lying to the east of Shark River Slough. Table 1 provides the area by 
unit determined to meet the definition of critical habitat for the Cape 
Sable seaside sparrow.

                  Table 1.--Critical Habitat Units Proposed for the Cape Sable Seaside Sparrow
    [Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas
                                                 without PCEs.]
                                                           Federal acres       State acres        Total acres
                 Critical habitat unit                       (hectares)         (hectares)         (hectares)
1. Unit 1--subpopulation A marl prairies...............    59,892 (24,237)                  0    59,892 (24,237)
2. Unit 2--subpopulation A cordgrass marsh.............     11,402 (4,614)                  0     11,402 (4,614)
3. Unit 3--subpopulation B.............................    39,053 (15,804)                  0    39,053 (15,804)
4. Unit 4--subpopulation C.............................      8,059 (3,261)                  0      8,059 (3,261)
5. Unit 5--subpopulation D.............................          833 (337)      9,867 (3,993)     10,700 (4,330)
6. Unit 6--subpopulation E.............................     22,278 (9,016)                  0     22,278 (9,016)
7. Unit 7--subpopulation F.............................      4,958 (2,006)                  0      4,958 (2,006)
    Total..............................................   146,475 (59,275)      9,867 (3,993)   156,342 (63,268)

    Below, we provide a brief description and rationale for each 
proposed unit of revised critical habitat for the Cape Sable seaside 

Unit 1: Subpopulation A Marl Prairies

    Unit 1 consists of 59,842 ac (24,237 ha) of freshwater marl 
prairie. The boundary of the proposed unit overlaps the boundary of 
BCNP and ENP. Of the total acreage, 31,292 ac (12,663 ha) are within 
ENP, and 28,600 ac (11,574 ha) are within BCNP. The proposed unit is 
entirely outside of currently designated critical habitat.
    This unit was first determined to support sparrows in the mid-1950s 
(Stimson 1956, p. 496), and at that time sparrows were widely 
distributed across much of the marl prairies. Their occurrence within 
the area was not monitored continuously over time, but intermittent 
surveys indicated their continuous presence in the area. Surveys in 
1968, near the time of the sparrow's listing, indicated that extensive 
fires had reduced the number of sparrows in the area significantly 
(Stimson 1968, p. 867), though they likely continued to occur scattered 
throughout the area within unburned patches (Werner 1975, p. 30). Since 
that time, the sparrow population in the area increased, and in the 
first comprehensive survey of potential sparrow habitat in 1981, the 
area was found to support a larger number of sparrows than any other 
subpopulation (Kushlan and Bass 1983, p. 144). Based on this 
information, we consider this unit to be occupied at the time of the 
Cape Sable seaside sparrow's listing.
    This area contains habitat features (one or more of the PCEs) that 
are essential to the conservation of the sparrow. It is the largest 
remaining contiguous patch of marl prairie habitat and has the 
potential to support a large population of sparrows similar to counts 
taken in prior surveys in the 1980s and 1990s. A 1999 review of sparrow 
biology conducted by the American Ornithologists' Union concluded that 
the best available means to reduce the risk of extinction of the 
sparrow is to retain and recover sparrow subpopulation A (Walters et 
al. 2000, p. 1111).
    The unit's spatial separation from the other areas occupied by 
sparrows increases its significance to the species. It is the only area 
west of Shark River Slough that can support a large sparrow 
subpopulation. Its distance from other sparrow subpopulations and the 
intervening slough make it unlikely to be affected by any large fire 
that impacts the subpopulations east of Shark River Slough, and less 
likely to be subjected to any local detrimental hydrologic conditions 
that may affect the eastern subpopulations, either as a result of 
hydrologic management or meteorological events. Conversely, its 
separation from other subpopulations reduces the likelihood that it 
would be recolonized if local extirpation were to occur (Walters et al. 
2000, p. 1110). While the vegetation within portions of the habitat has 
been impacted by fires and flooding, it has consistently supported the 
vegetation species composition and structure that sparrows require.
    From 1993 to 1995, the sparrow population in this area declined 
precipitously, from an estimated 2,608 individuals in 1992 to 240 
individuals in 1995 (Pimm et al. 2002, p. 70). This decline apparently 
resulted from hydrologic management within the area immediately 
upstream of the area, just north of ENP. During these years, the 
sparrow habitat remained flooded for extended periods, sometimes deeply 
flooded. Since then, measures have been implemented by the U.S. Army 
Corps of Engineers and South Florida Water Management District water 
managers to prevent further damage to the sparrow subpopulation in the 
area resulting from excessive water levels and duration of inundation, 
but the subpopulation has not recovered. Water management plans 
continue to have the potential to result in damage to sparrow habitat 
in these areas, and special management of hydrologic conditions is 
necessary. Special management may also be needed to restore more 
favorable vegetation conditions within this unit.

Unit 2: Subpopulation A Cordgrass Marshes

    Unit 2 consists of 11,402 ac (4,614 ha) of mixed cordgrass marsh 
and freshwater marl prairies within the coastal prairies between the 
mangrove zone and the cypress forests in the vicinity of BCNP in the 
Stairsteps region. Of the total acreage within this unit, 6,004 ac 
(2,430 ha) are within

[[Page 63991]]

BCNP, and the remaining 5,398 ac (2,184 ha) are within ENP. The 
proposed unit is entirely outside of currently designated critical 
    This unit was first determined to support sparrows in the mid-1950s 
(Stimson 1956, p. 498), and at that time, sparrows were distributed 
through much of the coastal marshes from Shark River Slough to the 
northwest to Ochopee. Their occurrence within the area was not 
monitored regularly over time, but intermittent surveys indicated their 
continuous presence in the area. Surveys in 1968, near the time of the 
sparrow's listing, indicated that fires that occurred in 1962 had 
reduced the number of sparrows in the area (Stimson 1968, p. 867), 
though they likely continued to occur throughout the area within 
unburned patches (Werner 1975, p. 30). Based on this information, we 
consider this unit to be occupied at the time of the Cape Sable seaside 
sparrow's listing.
    This area contains habitat features (one or more of the PCEs) that 
are essential for the conservation of the sparrow. It is the only 
remaining large area of suitable habitat within the cordgrass marsh--
marl prairie transitional zone that sparrows historically occupied. 
Since the 1981 surveys, the area has not supported large numbers of 
sparrows (Pimm et al. 2002, p. 70), but it has not been regularly 
surveyed. Because the vegetation in this area differs from that in the 
remainder of the proposed critical habitat, its condition and 
suitability is influenced by a different set of factors than in other 
units. The area is considered to be a portion of sparrow subpopulation 
A, but it is relatively isolated from the rest of the area supporting 
this subpopulation. This area may serve as a refugium for some sparrows 
and a source of birds for recolonization of the remainder of 
subpopulation A if large portions of the area were to be affected by 
large fires or damaging hydrologic conditions.
    Mangrove and shrub encroachment has occurred in some portions of 
the coastal prairie habitats, and this area may require special 
management consideration (see Special Management Considerations and 
Protection section above).

Unit 3: Subpopulation B

    Unit 3 consists of 39,053 ac (15,804 ha) of marl prairie and lies 
exclusively within ENP. The majority of the proposed unit lies within 
currently designated critical habitat. The unit is bounded on the south 
by the long-hydroperiod Eleocharis-dominated wet prairie and mangrove 
zone just inland of Florida Bay, on the west by the sawgrass marshes 
and deepwater slough communities of Shark River Slough, on the north by 
the pine rockland vegetation communities that occur within ENP on Long 
Pine Key, and on the east by the sawgrass marshes and deepwater slough 
vegetation community of Taylor Slough. There is a continuous 
elevational gradient across the site, from the high elevations of the 
pine rocklands north of the unit down to the mangroves in the south. 
The area is bisected by the Main Park Road, which serves as the primary 
public access route from Homestead to Florida Bay. It is also bisected 
by the Old Ingraham Highway, which is an abandoned and partially 
restored roadway that historically provided access from Homestead to 
the Bay. Much of the western portion of this roadway was removed and 
restored to grade, but the eastern portions of the road, with its 
associated borrow canal and woody vegetation, interrupt the contiguity 
of the prairies within the eastern portion of this unit. Besides the 
road, borrow canal, and woody vegetation, which are not critical 
habitat, the area consists of one large, contiguous expanse of marl 
prairie that contains the PCEs for the sparrow.
    This unit was not known to be occupied at the time the sparrow was 
listed in 1967, but sparrows were documented in this area in 1974 to 
1975 (Werner 1975, p. 32). Consequently, we consider the unit to be 
unoccupied at the time of listing. However, when sparrows were first 
recorded in the area during 1974 to 1975 surveys, they were abundant 
and widespread (Werner 1975, pp. 32-33) and almost certainly occurred 
in the area prior to their discovery. This area was included in the 
1977 critical habitat designation for the sparrow (42 FR 40685 and 42 
FR 47840).
    The area is essential to the conservation of the sparrow because it 
is the largest contiguous patch of marl prairie east of Shark River 
Slough. It is currently occupied, and has consistently supported the 
largest sparrow subpopulation since 1992 (Pimm et al. 2002, p. 70; Pimm 
and Bass 2006, p. 16). The natural characteristics of this area make it 
relatively immune to risk of flooding or frequent fires (Walters et al. 
2000, p. 1110). Its location south of the high-elevation pine rocklands 
provides it a degree of protection from high water levels that does not 
occur within any other units. Within the southern portion of the 
greater Everglades watershed, water flows from north to south, with 
most water moving through Shark River Slough, and to a lesser extent 
through Taylor Slough. The pinelands block the southward flow of water 
across this area such that the primary influences on water levels are 
rainfall and overflow from the flanking sloughs. In addition, portions 
of the area occur on relatively high elevations and remain relatively 
dry. Consequently, this area is not easily flooded as a result of 
managed water releases or upstream events, and the high water levels 
that may occur within other sparrow subpopulations are dampened by its 
relative position and topographic characteristics.
    Similarly, the area is not particularly vulnerable to fires. It is 
not overdrained as a result of local hydrologic management actions, and 
the fire frequency is primarily influenced by natural ignition and 
managed prescribed fire. The public road that traverses the area could 
result in an increased likelihood of ignitions, but this has not 
occurred to date. In addition, the presence of both the Main Park Road 
and the Old Ingraham Highway within this unit provides human access 
greater than in any other unit and may allow better opportunities to 
manage both prescribed fires and wildfires such that they would pose a 
reduced risk to the persistence of the sparrow subpopulation.

Unit 4: Subpopulation C

    Unit 4 consists of 8,059 ac (3,261 ha) of marl prairie habitat that 
lies exclusively within ENP in the vicinity of Taylor Slough, along the 
eastern edge of ENP. The proposed unit lies entirely within the 
currently designated critical habitat.
    The unit consists of the prairies that flank both sides of the 
relatively narrow Taylor Slough. The area is bordered by the pine 
rocklands of Long Pine Key on the west and by isolated pine rocklands 
and the L-31 W canal that runs along the ENP boundary to the east. It 
is bordered by an area of constriction in Taylor Slough that is closely 
flanked on both sides by forested habitats at the southern end and by 
the Rocky Glades, a region of thin marl soils and exposed limestone and 
sparse vegetation (ENP 2005, p. 4), to the north. The area is bisected 
by Main Park Road in the southern portion of the unit, but the 
remainder of the unit consists of contiguous marl prairies.
    This area was not known to be occupied at the time of listing in 
1967, but sparrows were discovered in the area in 1972 (Ogden 1972, p. 
852). We are consequently considering the unit to be unoccupied at the 
time of listing. At the time of discovery, sparrows were found to be 
widely distributed and abundant in this area (Werner 1975, p. 32), and 
it was likely occupied for many

[[Page 63992]]

years prior to its discovery. Following its discovery, the site was the 
location of some of the first intensive study of the sparrow's biology 
and its relationship to its habitat (Werner 1975, p. 17). This area was 
included in the 1977 critical habitat designation for the sparrow (42 
FR 40685 and 42 FR 47840).
    During the mid-1970s, sparrows were abundant at this site (Werner 
1975, p. 32), and surveys in 1981 estimated 432 sparrows in this area 
(Pimm et al. 2002, p. 70). Since 1981, the sparrow subpopulation at 
this site has declined and has ranged from zero to 144 sparrows between 
1995 and the present (Pimm et al. 2002, p. 70; Pimm and Bass 2006, p. 
16). When sparrows were abundant in the area, the area was in a 
relatively dry condition, and water levels only rose above ground level 
for limited periods. Beginning in 1980, a pump station, which was 
installed along the eastern boundary of ENP at the approximate location 
of the historic slough, was operated to increase hydroperiods in the 
area resulting in extended hydroperiods within the portions of the area 
downstream from the pumping station (ENP 2005, p. 39). Vegetation 
changed in this area from marl prairie to sawgrass marsh (ENP 2005, pp. 
3-40), and sparrows ceased to occur in this area. At the same time, the 
northern portions of sparrow subpopulation C, above the pump station, 
continued to be overdrained as a result of the adjacent canal and a 
lowered water table in the agricultural lands immediately adjacent to 
ENP (Johnson et al. 1988, pp. 30-31; ENP 2005, p. 53). In these 
overdrained areas, frequent fires impacted the habitat and resulted in 
reduced sparrow numbers (Pimm et al. 2002, p. 77).
    This area is essential for the conservation of the sparrow because 
it provides a contiguous expanse of habitat that is largely separated 
from other nearby subpopulations in an area that is uniquely influenced 
by hydrologic characteristics. The Taylor Slough basin is a relatively 
small system, and much of the headwaters of the Slough are cut off by 
canals and agricultural development to the east of ENP. Portions of 
this unit near the slough have deep soils (15.7 in (40 cm)) (Taylor 
1983, pp. 151-152) and support resilient vegetation that responds 
rapidly following fire (Taylor 1983, p. 151-152; Werner and Woolfenden 
1983, p. 62). Sparrows were reported to reoccupy burned sites in this 
region within 1 to 2 years following fire (Werner and Woolfenden 1983, 
p. 62). The unit contains the vegetation characteristics upon which 
sparrows rely, and most of the area currently experiences hydrologic 
conditions that are compatible with sparrows (one or more of the PCEs). 
This area remains heavily influenced by hydrologic management along the 
eastern boundary of ENP (ENP 2005, p. 17-18). Portions of the area are 
also overdrained, resulting in the possibility of high fire frequency.
    The location of this unit relative to other sparrow subpopulations 
is also significant in that it occurs in the center of the five sparrow 
subpopulations that occur east of Shark River Slough in the vicinity of 
Taylor Slough (subpopulations B through F). The habitat in this area 
probably plays an important role in supporting dispersal among the 
eastern subpopulations, acting as a ``hub'' that facilitates dispersal 
in the region and recolonization of local areas that are detrimentally 

Unit 5: Subpopulation D

    Unit 5 consists of 10,700 ac (4,330 ha) of marl prairie vegetation 
in an area that lies on the eastern side of the lower portion of Taylor 
Slough. A portion of the proposed unit is within currently designated 
critical habitat.
    The majority of this area (9,867 ac; 3,993 ha) is within the 
Southern Glades Wildlife and Environmental Area, which is jointly 
managed by the South Florida Water Management District and the FWC. The 
remaining 883 ac (337 ha) occurs within the boundary of ENP. The area 
is bordered on the south by the long-hydroperiod Eleocharis vegetation 
and mangroves that flank Florida Bay, on the west by the sawgrass 
marshes and deep-water vegetation of Taylor Slough, on the east by 
longer-hydroperiod Eleocharis vegetation and overdrained areas with 
shrub encroachment in the vicinity of U.S. Highway 1, and on the north 
by agricultural lands and development in the vicinity of Homestead and 
Florida City.
    Similar to the other eastern subpopulations, sparrows were not 
known to occur in this area at the time of listing in 1967, but were 
discovered during surveys from 1972 to 1975 (Werner 1975, p. 32). We 
consequently consider this proposed unit to be unoccupied at the time 
of listing. However, when sparrows were discovered in this area, they 
were widespread (Werner 1975, p. 32), suggesting that they had occurred 
in this region for a long period prior to their discovery. A portion of 
this area, including both Federal- and State-owned lands was included 
in the 1977 critical habitat designation for the sparrow (42 FR 40685 
and 42 FR 47840).
    This area is essential for the conservation of the sparrow because 
it is the easternmost area where sparrows occur and is the only 
subpopulation that occurs on the eastern side of Taylor Slough. It is 
consequently unlikely to be affected by the same factors (e.g., large 
fires or extreme hydrologic conditions) that affect the other eastern 
subpopulations that lie primarily between Shark River Slough and Taylor 
Slough. Loss of suitable habitat and the sparrow subpopulation within 
this area would also result in a reduction in the geographic range of 
the sparrow.
    The 1981 comprehensive survey of potential sparrow habitat 
estimated 400 sparrows within this region (Pimm et al. 2002, p. 70). 
This was higher than any number of sparrows recorded in the area in 
recent years, and estimates have ranged from zero to 112 sparrows 
between 1992 and the present (Pimm et al. 2002, p. 70; Pimm and Bass 
2006, p. 16). The area currently contains all PCEs, but the majority of 
the area is dominated by sawgrass, which indicates a wetter-than-
average condition within the spectrum of conditions that support marl 
prairie and sparrow habitat (Ross et al. 2006, p. 16). The habitat in 
this area is divided by several canals that are part of the C-111 
basin. This canal system results in relatively altered hydrologic 
conditions in the region (ENP 2005, p. 18) and causes extended 
hydroperiods during wet periods (Pimm et al. 2002, p. 78). These 
factors influencing hydrologic conditions will continue to require 
management in the future.

Unit 6: Subpopulation E

    Unit 6 consists of 22,278 ac (9,016 ha) of marl prairie habitat in 
an area that lies along the eastern margin of Shark River Slough. This 
unit occurs entirely within ENP, and the majority of the proposed unit 
is within currently designated critical habitat. The area is bordered 
to the south by the pine rocklands of Long Pine Key and by an area 
dominated by dwarf cypress trees. The sawgrass marshes and deepwater 
slough vegetation communities of Shark River Slough comprise the 
western and northern boundary of the area, and the Rocky Glades 
comprise the eastern boundary.
    Similar to the other eastern subpopulations, sparrows were not 
known to occur in this area at the time of listing in 1967, but were 
discovered during surveys from 1972 to 1975 (Werner 1975, p. 32). We 
consequently consider this proposed unit to be unoccupied at the time 
of listing. However, when sparrows were discovered in this area, they 

[[Page 63993]]

relatively widespread (Werner 1975, p. 33), suggesting that they had 
occurred in this region for a long period prior to their discovery. The 
majority of this area was included in the 1977 critical habitat 
designation for the sparrow (42 FR 40685 and 42 FR 47840). This area is 
currently occupied by sparrows and contains one or more of the PCEs.
    This area is essential to the conservation of the species because 
it supports one of the large, relatively stable sparrow subpopulations. 
It is also centrally located among the areas supporting other 
subpopulations, and its central location probably plays an important 
role in aiding dispersal among subpopulations, particularly movements 
from the eastern subpopulations to the subpopulations west of Shark 
River Slough. Since 1997, this area has supported the second largest 
sparrow subpopulation, ranging from 576 to nearly 1,000 individuals in 
recent years (Pimm et al. 2002, p. 70; Pimm and Bass 2006, p. 16).
    The centrality of this subpopulation also helps to prevent it from 
being affected by managed hydrologic conditions because it is distant 
from canals, pumps, and water management structures that occur along 
the boundaries of ENP. The magnitude of any managed water releases is 
generally dampened by the time their influences reach this area. 
However, the proximity of this area to Shark River Slough may make the 
habitats and the sparrows that they support vulnerable to hydrologic 
effects during wet periods. The western portions of the area may become 
too deeply inundated to provide good habitat for sparrows under some 
deep water conditions. Large-scale hydrologic modifications, such as 
those proposed under the Comprehensive Everglades Restoration Plan, 
have the potential to influence habitat conditions in this area, and 
may require special management attention. Large-scale fires may also 
detrimentally affect this area, and there are no intervening features 
in the region that would aid in reducing the potential impacts on this 
subpopulation. While the area is relatively distant from ENP boundaries 
and potential sources of human-caused ignition, fires that are started 
along the eastern ENP boundary may rapidly spread into the area. The 
2001 Lopez fire was a human-caused fire that affected a portion of this 
unit (Lockwood et al. 2005, p. 4). Risk from fire may also require 
management in this area to prevent impacts to this large sparrow 

Unit 7: Subpopulation F

    Unit 7 consists of 4,958 ac (2,006 ha) of marl prairie that lies 
along the eastern boundary of ENP, and is the northernmost of the units 
east of Shark River Slough. This is the smallest of the proposed units 
and the majority of the proposed unit is within currently designated 
critical habitat. It is bounded on the north and west by the sawgrass 
marshes and deep-water slough vegetation communities associated with 
Shark River Slough, and on the east by agricultural and residential 
development and the boundary of ENP. Its southern boundary is defined 
by the sparse vegetation and shallow soils of the Rocky Glades.
    Similar to the other eastern subpopulations, sparrows were not 
known to occur in this area at the time of listing in 1967, but were 
discovered during surveys from 1972 to 1975 (Werner 1975, p. 32). We 
consequently consider this proposed unit to be unoccupied at the time 
of listing. However, when sparrows were discovered in this area, they 
were relatively widespread (Werner 1975, p. 33), suggesting that they 
had occurred in this region for a long period prior to their discovery. 
The majority of this area was included in the 1977 critical habitat 
designation for the sparrow (42 FR 40685 and 42 FR 47840). This area is 
currently occupied by sparrows, and contains one or more of the PCEs 
associated with sparrow critical habitat.
    The first comprehensive surveys of potential sparrow habitat in 
1981 resulted in an estimated population of 112 sparrows in this area, 
and most subsequent surveys have resulted in estimates lower than this, 
including several years when no sparrows were found (Pimm et al. 2002, 
p. 70; Pimm and Bass 2006, p. 16). However, sparrows were always found 
in the area in the year following a zero count (Pimm et al. 2002, p. 
70), indicating that sparrows are consistently using the area.
    This area is essential to the conservation of the sparrow because 
it would serve to support or recolonize subpopulations C and E (in 
units 4 and 6) if those areas were to become unsuitable. Loss of 
habitat in this area would also result in a reduction in the total 
spatial distribution of sparrows. Its position in the landscape results 
in a unique set of threats that differ from those in other 
subpopulations. Because of its proximity to urban and agricultural 
areas and its relative topographic location, this area has been 
consistently overdrained in recent years and remains dry for longer 
periods than other subpopulations. The relative dryness of the area may 
allow the site to remain suitable as habitat for sparrows under very 
wet conditions, when other subpopulations may become deeply inundated 
for long periods.
    Because of its dryness and its proximity to developed areas, this 
area has been subjected to frequent human-caused fires during the past 
decade, resulting in periods of poor habitat quality. Management of 
fires in the area will continue to require special consideration. In 
addition, the dry conditions have allowed encroachment of woody 
vegetation, including invasive exotic and native woody species. 
Invasive exotic trees, primarily Australian-pine (Casuarina spp.), 
melaleuca (Melaleuca quinquenervia), and Brazilian pepper (Schinus 
terebinthifolius), have become established in local areas (Werner 1975, 
pp. 46-47), often forming dense stands. These trees have reduced the 
suitability of some portions of the habitat for sparrows and have 
reduced the amount of contiguous open habitat. Aggressive management 
programs have been implemented by management agencies to address this 
issue, and control of woody vegetation will continue to be required.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 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. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and 
the statutory provisions of the Act, destruction or adverse 
modification is determined 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 the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 

[[Page 63994]]

to evaluate their actions with respect to any species that is proposed 
or listed as endangered or threatened and with respect to its critical 
habitat, if any is proposed or designated. Regulations implementing 
this interagency cooperation provision of the Act are codified at 50 
CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    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 such a 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, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's 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, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined 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, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of 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 a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the Cape Sable seaside sparrow 
or its designated critical habitat will require section 7 consultation 
under 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 or a permit under 
section 10(a)(1)(B) of the Act from the Service) or involving some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be 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 consultation.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Cape Sable Seaside Sparrow and Its 
Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for Cape Sable seaside sparrow 
jeopardy analyses that relies heavily on the importance of 
subpopulations to the survival and recovery of the sparrow. The section 
7(a)(2) analysis is focused not only on these subpopulations but also 
on the habitat conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the sparrow in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected subpopulation(s), 
inclusive of associated habitat conditions, a jeopardy finding for the 
species is warranted, because of the relationship of each subpopulation 
to the survival and recovery of the species as a whole.
Adverse Modification Standard
    For the reasons described in the Director's December 9, 2004 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the primary constituent elements to be 
functionally established) to serve the intended conservation role for 
the species. Generally, the conservation role of Cape Sable seaside 
sparrow critical habitat units is to support viable core area 

[[Page 63995]]

    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCEs to an extent that the conservation value of 
the designated critical habitat for the sparrow is appreciably reduced.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for the sparrow include, but are not limited to:
    (1) Actions that would significantly and detrimentally alter the 
hydrology of marl prairie habitat found in all units. Such activities 
could include, but are not limited to, changes to hydrological 
management plans that result in increased depth of inundation or 
duration of flooding within sparrow habitat during the breeding season;
    (2) Actions that would allow encroachment of nonnative and invasive 
woody plant species. Such activities could include, but are not 
limited, to local or regional overdrying and introduction of nonnative 
woody plant species;
    (3) 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 nesting). Such activities 
could include, but are not limited to, off-road vehicle use and 
mechanical clearing;
    (4) Actions that would reduce the value of a site by significantly 
disturbing sparrows from activities, such as foraging and nesting; and
    (5) Actions that would significantly and detrimentally alter water 
quality that may lead to detrimental changes in vegetation species 
composition and structure or productivity of prey organisms and may 
have direct detrimental effects on sparrows.
    These activities could reduce population sizes and the likelihood 
of persistence within one or more sparrow subpopulations, and reduce 
the suitability of habitat for breeding for extended periods.
    We consider all of the units proposed as revised critical habitat 
to contain features essential to the conservation of the Cape Sable 
seaside sparrow or to be essential to the conservation of the Cape 
Sable seaside sparrow. All units are within the geographic range of the 
species, all areas are currently occupied by sparrows (based on surveys 
conducted since 1981; Pimm et al. 2002; Pimm and Bass 2006), and all 
areas are likely to be used by the sparrow. Federal agencies already 
consult with us on activities in areas currently occupied by the 
sparrow if the species may be affected by the activity to ensure that 
those Federal actions do not jeopardize the continued existence of the 
sparrow or destroy or modify its current designated critical habitat.

Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of 
the Act

    The seven units we propose as revised critical habitat satisfy the 
definition of critical habitat under section 3(5)(A) of the Act because 
each is a specific area within the geographical area occupied by the 
Cape Sable seaside sparrow at the time of listing within which are 
found those physical and biological features that are essential to its 
conservation and that may require special management considerations or 
protection, or is an area not occupied by this species at the time of 
listing but is essential to the conservation of the sparrow (see 
``Primary Constituent Elements,'' ``Criteria Used to Delineate Critical 
Habitat,'' and ``Special Management Considerations or Protection''). We 
considered whether conservation activity on publicly or privately 
managed lands within a proposed unit might remove the need for special 
management considerations or protection from all or part of a unit. All 
of the proposed revised critical habitat units fall within lands 
managed wholly or partially for conservation purposes. We considered 
excluding NPS lands and State-managed lands from the proposed critical 
habitat designation because these properties currently operate under 
general management plans (NPS) or conceptual management plans (FWC) 
that address habitat management for the sparrow. ENP and BCNP are 
currently drafting new General Management Plans, but they are not yet 
complete. While the existing management plans include provisions and 
actions intended to maintain the habitat type, we determined that none 
of the existing plans provide sufficient assurances that hydrologic 
management in these areas will maintain sparrow habitat. Neither the 
NPS nor the FWC directly manage the hydrologic conditions on their 
properties. Inflows into the properties, as well as adjacent hydrologic 
conditions that affect the lands through groundwater seepage, are 
regulated by other Federal and State agencies.
    Under section 4(b)(2) of the Act, we must consider the economic 
impact and any other relevant impact of designating areas as critical 
habitat. We may exclude any area from critical habitat if we determine 
that the benefits of exclusion outweigh the benefits of inclusion.
Benefits of Inclusion
    The most direct benefit of critical habitat is that actions taken, 
authorized, or funded by the Federal government require consultation 
under section 7 of the Act to ensure that these actions are not likely 
to destroy or adversely modify critical habitat (see ``Effects of 
Critical Habitat Designation--Section 7 Consultation''). This 
regulatory benefit has two principal limitations. First, it applies 
only to Federal actions and not to other actions that may destroy or 
adversely modify critical habitat. Second, it ensures only that 
designated areas are not destroyed or adversely modified and does not 
require specific steps toward recovery.
    Another benefit of critical habitat is that its designation serves 
to educate landowners, State and local governments, and the general 
public. By clearly delineating areas of high conservation value, 
designation may help focus and promote conservation efforts for the 
Cape Sable seaside sparrow. Designation informs State and Federal 
agencies and local governments about areas that they may consider for 
protection or conservation.
Benefits of Exclusion
    Because the regulatory effect of critical habitat is limited to 
Federal actions, the non-economic impacts of critical habitat are 
generally limited to Federal lands, partnerships, and trust resources. 
We have determined that the lands encompassed by the proposed revised 
critical habitat units for the Cape Sable seaside sparrow are not owned 
or managed by the Department of Defense, there are currently no HCPs 
for the Cape Sable seaside sparrow, and the proposed revised 
designation does not include any Tribal lands. We anticipate no impact 
to national security, Tribal lands, partnerships, or habitat 
conservation plans from this revised critical habitat designation as 
    Based on the best available information, we believe that the 
benefits of designating each of the seven units we propose as revised 
critical habitat outweigh the non-economic benefits of excluding any 
specific areas within those units. We will evaluate potential economic 
benefits of exclusion in a separate notice (see ``Economic Analysis'').

[[Page 63996]]

Economic Analysis
    An analysis of the economic impacts of proposing critical habitat 
for the Cape Sable seaside sparrow is being prepared. 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.fws.gov/verobeach, or by 

contacting the South Florida Ecological Services Office directly (see 
ADDRESSES). For further explanation, see the Required Determinations 
section below.
Editorial Changes
    This proposed rule incorporates a change to the common and 
scientific names of the Cape Sable seaside sparrow used in the current 
critical habitat entry for this species at 50 CFR 17.95(b). The current 
critical habitat entry, established by an August 11, 1977, final rule 
(42 FR 40685), uses the common name ``Cape Sable sparrow'' and the 
scientific name ``Ammospiza maritima mirabilis.'' Both names are 
outdated. Our proposed change will bring the common and scientific 
names into agreement with those used by the scientific community as 
well as names used for this species in the table at 50 CFR 17.11(h).
Peer Review
    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and based on our implementation 
of the Office of Management and Budget's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we will seek the 
expert opinions of at least five appropriate and independent 
specialists regarding the science in this proposed rule. The purpose of 
such review is to ensure that our critical habitat designation is based 
on scientifically sound data, assumptions, and analyses. We will send 
copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment, during the public comment period, on the 
specific assumptions and conclusions regarding the proposed revised 
designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
Public Hearings
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We 
intend to schedule public hearings on this proposal, if any are 
requested, once the draft economic analysis is available so that we can 
receive public comment on the draft economic analysis and proposed rule 
simultaneously. However, we can schedule public hearings prior to that 
time, if specifically requested. We will announce the dates, times, and 
places of those hearings in the Federal Register and local newspapers 
at least 15 days prior to the first hearing.
Clarity of the Rule
    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: Exsec@ios.doi.gov.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, and Executive Order 12630.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. When it is completed, the draft economic analysis can be 
obtained from the internet Web site at http://www.fws.gov/verobeach or 

by contacting the South Florida Ecological Services Office directly 

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

    Our assessment of economic effects will be completed prior to final 
rulemaking based upon review of the draft economic analysis prepared 
pursuant to section 4(b)(2) of the Act and E.O. 12866. This analysis is 
for the purposes of compliance with the Regulatory Flexibility Act and 
does not reflect our position on the type of economic analysis required 
by New Mexico Cattle Growers Assn. v. U.S. Fish and Wildlife Service 
248 F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to 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. The SBREFA amended 
the Regulatory Flexibility Act (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.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic

[[Page 63997]]

analysis prepared pursuant to section 4(b)(2) of the Act and Executive 
Order 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation. The Service will 
include with the notice of availability, 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. The 
Service has 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 the Service makes a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for the Cape Sable seaside sparrow is a 
significant regulatory action under Executive Order 12866, but it is 
not expected 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.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This 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, 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 tribal 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 tribal 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 Tribal 
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 on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because only Federal and State lands are 
involved in the proposed designation. As such, a Small Government 
Agency Plan is not required. However, as we conduct our economic 
analysis, we will further evaluate this issue and, as appropriate, 
review and revise this assessment as warranted.


    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Cape Sable seaside sparrow in a 
takings implications assessment. The takings implications assessment 
concludes that this designation of critical habitat for the Cape Sable 
seaside sparrow does not pose significant takings implications. 
However, we will further evaluate this issue as we conduct our economic 
analysis and review and revise this assessment as warranted.


    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed revised critical habitat designation with 
appropriate State resource agencies in Florida. The designation of 
critical habitat in areas currently occupied by the Cape Sable seaside 
sparrow 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 in that the areas that contain the features 
essential to the conservation of the species are more clearly defined, 
and the PCEs of the habitat necessary to the conservation of the 
species are specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have proposed designating revised critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in

[[Page 63998]]

understanding the habitat needs of the Cape Sable seaside sparrow.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. 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 (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by NEPA 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 Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), 
cert. denied 116 S. Ct. 698 (1996)).

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), Executive Order 13175, and the Department 
of 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. We have determined that 
there were no Tribal lands occupied at the time of listing and no 
Tribal lands contain unoccupied areas that are essential for the 
conservation of the Cape Sable seaside sparrow. Therefore, revised 
critical habitat for the sparrow has not been proposed on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from Tylan Dean, South Florida Ecological 
Services Office (see ADDRESSES).


    The primary author of this package is the South Florida Ecological 
Services Office.

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:


    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; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.95(b), revise the entry for ``Cape Sable Sparrow 
(Ammospiza maritima mirabilis)'' to read as follows:

Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
Cape Sable Seaside Sparrow (Ammodramus maritimus mirabilis)
    (1) Critical habitat units are depicted for Miami-Dade and Monroe 
Counties, Florida, on the maps below.
    (2) The primary constituent elements of critical habitat for the 
Cape Sable seaside sparrow are the habitat components that provide:
    (i) Calcitic marl soils characteristic of the short-hydroperiod 
freshwater marshes of the southern Everglades;
    (ii) Herbaceous vegetation that includes greater than 15 percent 
combined cover of live and standing dead vegetation of one or more of 
the following species (when measured across an area of greater than 100 
feet2 or 30.5 meters2): Muhly grass (Muhlenbergia 
filipes), Florida little bluestem (Schizachyrium rhizomatum), black-
topped sedge (Schoenus nigricans), and cordgrass (Spartina bakeri);
    (iii) Contiguous open habitat. Sparrow subpopulations require 
large, expansive, contiguous habitat patches with few or sparse woody 
shrubs or trees; and
    (iv) Hydrologic regime such that the water depth, as measured from 
the water surface down to the soil surface, does not exceed 20 
centimeters during the period from March 15 to June 30 at a frequency 
of more than 2 out of every 10 years.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, roads, and other paved areas) and the 
land on which they are located existing on the effective date of this 
rule and not containing one or more of the primary constituent 
    (4) Critical Habitat Map Units. Data layers defining map units were 
created using a GIS and adding activity areas around all Cape Sable 
seaside sparrow point count survey coordinates provided by the National 
Park Service at which sparrows have been recorded since 1981. These 
activity areas were merged to form one large polygon, and the 
boundaries were further refined by delineating suitable sparrow habitat 
and excluding unsuitable habitat along the borders based on 
interpretation of 2004 Florida Digital Orthographic Quarter Quads and 
Landsat false-color satellite imagery (a mosaic of color-balanced 
Landsat 7 Enhanced Thematic Mapper scenes from December 2003 to April 
2004 using bands 5, 4, and 3). The projection represented in all 
mapping of units is Universal Transverse Mercator (UTM) Zone 17 North, 
NAD 83 Datum.
    (5) Unit 1: (Subpopulation A marl prairies.
    (i) General description: Unit 1 consists of 59,892 ac (24,237 ha) 
of marl prairie habitat that lies within Everglades National Park and 
Big Cypress National Preserve in western Miami-Dade County and eastern 
Monroe County.
    (ii) Coordinates: From the Shark Valley Lookout Tower USGS 1:24,000 
quadrangle map, Florida, land and water bounded by the following UTM 
Zone 17 NAD 83 coordinates (E, N): 514143, 2846698; 516431, 2846561; 
516824, 2846011; 516682, 2844068; 516594, 2841582; 516875, 2840873; 
517488, 2840452; 517734, 2839419; 517673, 2838041; 517387, 2837426; 
516650, 2837228; 516449, 2836800; 516540, 2835500; 516658, 2834795; 
516098, 2834078; 514660, 2832924; 514076, 2832343; 513001, 2831639; 
512839, 2830561; 512823, 2828209; 512043, 2827390; 511172, 2827222; 
509898, 2827253; 508760, 2827281; 508159, 2827079; 508038, 2826568; 
508013, 2825568; 508511, 2824880; 509868, 2824901; 511045, 2824251; 
511198, 2823869; 511168, 2822653; 511121, 2821816; 510757, 2821338; 
507478, 2821417; 507360, 2821015; 507021, 2820482; 506474, 2820279; 
505878, 2820294; 505159, 2820852; 505149, 2821528; 504894, 2822210; 
504136, 2822229; 503651, 2822376; 503427, 2823165; 502463, 2823675; 
502423, 2825921; 502848, 2826694; 504152, 2826771; 504593, 2827085; 
504532, 2827897; 504455, 2829197; 504000, 2829424; 503518, 2829679; 
503534, 2830328; 503610, 2831218; 503664, 2832353; 503525, 2832735; 
503102, 2833204; 501505, 2833324; 500560, 2833482; 500303, 2834029;

[[Page 63999]]

500297, 2834895; 500460, 2837135; 500875, 2837476; 502014, 2837476; 
503043, 2837451; 503651, 2837896; 503936, 2838484; 504643, 2838548; 
505407, 2838745; 505831, 2839465; 506329, 2839885; 506608, 2840176; 
507187, 2840568; 508459, 2840483; 509299, 2840462; 509628, 2840589; 
509703, 2841453; 509532, 2842241; 509275, 2842815; 508665, 2843343; 
508548, 2844103; 509299, 2844896; 509556, 2845404; 510049, 2845608; 
513381, 2845500; 513540, 2846442; 514143, 2846698.

    (iii) Note: Map of Unit 1 is provided at paragraph (6)(iii) of 
this entry.

    (6) Unit 2: Subpopulation A cordgrass marshes.
    (i) General description: Unit 2 consists of 11,402 ac (4,614 ha) of 
mixed cordgrass marsh and freshwater marl prairie habitat that lies 
within Everglades National Park and Big Cypress National Preserve in 
western Miami-Dade County and eastern Monroe County.
    (ii) Coordinates: From the Big Boy Lake USGS 1:24,000 quadrangle 
map, Florida, land and water bounded by the following UTM Zone 17 NAD 
83 coordinates (E, N): 492105, 2842446; 492056, 2841913; 491748, 
2841423; 491699, 2840927; 491850, 2840297; 492135, 2839848; 492631, 
2839743; 493232, 2839379; 494098, 2838547; 494675, 2837925; 495173, 
2837895; 495821, 2837953; 497182, 2837717; 497993, 2836868; 498545, 
2836007; 498601, 2835269; 498531, 2833907; 498361, 2832990; 498167, 
2832645; 497878, 2832136; 497396, 2832074; 496453, 2832042; 495799, 
2832518; 495257, 2833010; 495006, 2834067; 494409, 2834615; 493847, 
2835071; 493344, 2835636; 492857, 2836108; 492393, 2836801; 492033, 
2837197; 491131, 2837348; 490947, 2838126; 490255, 2838530; 489785, 
2838965; 489084, 2839756; 488227, 2840237; 487680, 2840545; 487225, 
2840832; 487052, 2841334; 487160, 2841939; 487600, 2842592; 488273, 
2842889; 489569, 2842986; 490215, 2842971; 491320, 2842815; 492105, 

    (iii) Note: Map of Units 1 and 2 (Map 1) follows:

[[Page 64000]]


    (7) Unit 3: Subpopulation B.
    (i) General description: Unit 3 consists of 39,053 ac (15,804 ha) 
of marl prairie habitat that lies within Everglades National Park in 
southwestern Miami-Dade County.
    (ii) Coordinates: From the Long Pine Key USGS 1:24,000 quadrangle 
map, Florida, land and water bounded by the following UTM Zone 17 NAD 
83 coordinates (E, N): 526917, 2808910; 527089, 2808114; 527308, 
2808109; 528319, 2808057; 528750, 2807801; 528903, 2807333; 529236, 
2806425; 529691, 2806032; 530946, 2805892; 531630, 2805875; 532441, 
2805501; 532453, 2804873; 531446, 2803970; 530870, 2803902; 530241, 
2803890; 529854, 2803763; 529386, 2803611; 529182, 2803097; 529144, 
2802662; 529296, 2802167; 529728, 2801965; 530138, 2801955; 530767, 
2801940; 531394, 2801843; 531909, 2801666; 532314, 2801438; 532312, 
2801384; 532262, 2800430; 531975, 2799918; 531693, 2799543; 531425, 
2798649; 531410, 2798077; 531094, 2797430; 530664, 2796649; 530325, 
2796193; 529846, 2795632; 529518, 2795640; 528557, 2795500; 528065, 
2795485; 527787, 2795300; 527450, 2794981; 527006, 2794692; 526591, 
2794511; 526017, 2794525; 525180, 2794982; 524802, 2795155; 523987, 
2795393; 522696, 2796271; 522130, 2796639; 521206, 2796853; 520557, 
2797169; 520072, 2797481; 519245, 2798319; 518416, 2799104; 517970, 
2799879; 517793, 2800456; 517534, 2801062; 517266, 2801260; 516889, 
2801515; 516474, 2802425; 516492, 2803162; 516515, 2804116; 516430, 
2805100; 516586, 2805888; 517094, 2806530; 517680, 2807007; 517877, 
2807248; 518159, 2807596; 518527, 2808078; 519049, 2808174; 520226, 
2808227; 520856, 2808239; 521482, 2808115; 521938, 2807749; 522335, 
2807194; 522567, 2806642; 522754, 2806447; 523349, 2806159; 523785, 
2806121; 524093, 2806387; 524429, 2806706; 524846, 2806996; 525021, 
2807428; 525305, 2807858; 525560, 2808206;

[[Page 64001]]

525406, 2808619; 525663, 2809050; 526296, 2809225; 526917, 2808910.

    (iii) Note: Map of Unit 3 is provided at paragraph (11)(iii) of 
this entry.

    (8) Unit 4: Subpopulation C.
    (i) General description: Unit 4 consists of 8,059 ac (3,261 ha) of 
marl prairie habitat that lies within Everglades National Park in 
western Miami-Dade County.
    (ii) Coordinates: From the Long Pine Key USGS 1:24,000 quadrangle 
map, Florida, land and water bounded by the following UTM Zone 17 NAD 
83 coordinates (E, N): 534909, 2812258; 535011, 2812832; 535192, 
2813089; 535650, 2813200; 536001, 2813209; 536491, 2813232; 536722, 
2813349; 536766, 2813714; 536778, 2814185; 536928, 2814601; 537297, 
2814644; 537496, 2814936; 537501, 2815128; 537809, 2815540; 538341, 
2815806; 538763, 2815900; 539200, 2815890; 539689, 2815825; 540446, 
2815981; 540831, 2815972; 541202, 2816120; 541312, 2811350; 541539, 
2811327; 541579, 2810820; 541603, 2810365; 541542, 2810035; 541376, 
2809690; 541211, 2809380; 541133, 2809067; 541108, 2808754; 541296, 
2808574; 541238, 2808331; 541146, 2808159; 540844, 2807992; 540792, 
2807993; 540634, 2807979; 540542, 2807824; 540538, 2807632; 540309, 
2807586; 539756, 2807879; 539132, 2808138; 538618, 2808605; 538734, 
2809056; 538901, 2809401; 539067, 2809781; 538637, 2810071; 538068, 
2810417; 537342, 2810784; 536684, 2811114; 536178, 2811179; 535884, 
2811326; 535598, 2811787; 535253, 2811988; 534909, 2812258;

    (iii) Note: Map of Unit 4 is provided at paragraph (11)(iii) of 
this entry.

    (9) Unit 5: Subpopulation D.
    (i) General description: Unit 5 consists of 10,700 ac (4,330 ha) of 
marl prairie habitat that lies within the Southern Glades Wildlife and 
Environmental Area and Everglades National Park, in southern Miami-Dade 
County, as depicted on Map 2.
    (ii) Coordinates: From the Royal Palm Ranger Station SE USGS 
1:24,000 quadrangle map, Florida, land and water bounded by the 
following UTM Zone 17 NAD 83 coordinates (E, N): 546623, 2805929; 
547722, 2805064; 547780, 2804591; 548184, 2804651; 548884, 2804634; 
549599, 2804511; 550164, 2804008; 550253, 2803378; 549944, 2802896; 
549549, 2802504; 549138, 2802148; 549024, 2801801; 549035, 2801539; 
549039, 2800997; 549140, 2800122; 549122, 2799389; 548970, 2798904; 
548373, 2798813; 547483, 2798958; 546821, 2799061; 545890, 2798962; 
545532, 2798621; 545114, 2798003; 544479, 2797791; 543887, 2797946; 
543689, 2798405; 543750, 2799468; 543726, 2799940; 543689, 2800535; 
543343, 2800736; 542783, 2800715; 542331, 2800865; 541727, 2801212; 
541556, 2801356; 541478, 2801759; 541479, 2802493; 541666, 2802977; 
542234, 2803313; 542611, 2803670; 542775, 2803928; 543425, 2804034; 
544003, 2804037; 544423, 2804027; 544605, 2804337; 544618, 2804843; 
544595, 2805350; 544742, 2805626; 545170, 2805930; 545889, 2805999; 
546623, 2805929.

    (iii) Note: Map of Unit 5 is provided at paragraph (11)(iii) of 
this entry.

    (10) Unit 6: Subpopulation E.
    (i) General description: Unit 6 consists of 22,278 ac (9,016 ha) of 
marl prairie habitat that lies within Everglades National Park in 
central Miami-Dade County.
    (ii) Coordinates: From the Pahayokee Lookout Tower USGS 1:24,000 
quadrangle map, Florida, land and water bounded by the following UTM 
Zone 17 NAD 83 coordinates (E, N): 521841, 2816533; 525940, 2820239; 
525968, 2820266; 526694, 2820741; 527084, 2820978; 527388, 2821080; 
527374, 2821600; 527360, 2822148; 527457, 2822748; 527735, 2822906; 
528070, 2823117; 528417, 2823848; 529028, 2824134; 529238, 2824841; 
529250, 2825333; 529197, 2826539; 529735, 2827183; 530668, 2827160; 
531953, 2826965; 532774, 2826835; 533193, 2826031; 533510, 2825530; 
533777, 2825195; 534094, 2824694; 533885, 2824015; 533544, 2823558; 
533230, 2823045; 533211, 2822307; 533415, 2821672; 533623, 2821174; 
534292, 2820473; 534774, 2819968; 534844, 2819501; 535075, 2818811; 
535283, 2818368; 534879, 2817556; 534463, 2817375; 533609, 2817259; 
531442, 2817339; 530965, 2816913; 530377, 2816462; 529199, 2816545; 
528179, 2816378; 527947, 2815864; 527689, 2815432; 527085, 2815447; 
526289, 2815439; 525570, 2815237; 525284, 2814779; 525270, 2814177; 
525195, 2813357; 525067, 2812648; 523941, 2812621; 523173, 2812640; 
522612, 2813283; 521991, 2813682; 521696, 2813963; 521545, 2814542; 
521562, 2815253; 521603, 2815772; 521841, 2816533.

    (iii) Note: Map of Unit 6 is provided at paragraph (11)(iii) of 
this entry.

    (11) Unit 7: Subpopulation F.
    (i) General description: Unit 7 consists of 4,958 ac (2,006 ha) of 
marl prairie habitat that lies along the eastern boundary of Everglades 
National Park in central Miami-Dade County.
    (ii) Coordinates: From the Grossman Hammock USGS 1:24,000 
quadrangle map, Florida, land and water bounded by the following UTM 
Zone 17 NAD 83 coordinates (E, N): 541235, 2829890; 541864, 2829822; 
542679, 2829488; 542727, 2827880; 542685, 2826187; 542780, 2825068; 
542893, 2823965; 542791, 2823409; 542348, 2823192; 541263, 2823219; 
540481, 2823430; 540440, 2823903; 539993, 2824245; 539241, 2824264; 
538593, 2824996; 538791, 2825899; 539239, 2826324; 539702, 2827361; 
539928, 2828001; 540356, 2829021; 540489, 2829454; 540691, 2829833; 
541235, 2829890.

    (iii) Note: Map of Units 3, 4, 5, 6, and 7 (Map 2) follows:


[[Page 64002]]


* * * * *

    Dated: October 19, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-8930 Filed 10-30-06; 8:45 am]