[Federal Register Volume 71, Number 77 (Friday, April 21, 2006)]
[Proposed Rules]
[Pages 20625-20636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3793]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU11
Endangered and Threatened Wildlife and Plants; Proposed Special
Rule Pursuant to Section 4(d) of the Endangered Species Act for the
Pacific Coast Distinct Population Segment of the Western Snowy Plover
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
proposing special regulations under the authority of section 4(d) of
the Endangered Species Act (Act) of 1973, as amended, that would
promote the conservation of the Pacific Coast distinct population
segment (DPS) of western snowy plover (Charadrius alexandrinus
nivosus). We seek comment on our proposed rule from the public and
other agencies, and welcome suggestions regarding the scope and
implementation of a special 4(d) rule.
DATES: Information, suggestions, and comments must be received on or
before June 20, 2006. Requests for formal public hearings must be
received by May 22, 2006.
ADDRESSES: Data, information, comments, or questions concerning this
notice may be sent to the Field Supervisor (Attn: WSP-4d), Arcata Fish
and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road,
Arcata, California 95521 (telephone: 707-822-7201; fax: 707-822-8411).
FOR FURTHER INFORMATION CONTACT: Amedee Brickey, Fish and Wildlife
Biologist, Arcata Fish and Wildlife Office at the address above
(telephone: 707-822-7201).
SUPPLEMENTARY INFORMATION:
Background
The Pacific Coast population of the western snowy plover (Pacific
Coast WSP) was listed under the Endangered Species Act (Act) of 1973,
as amended (16 U.S.C. 1531 et seq.), as threatened on March 5, 1993 (58
FR 12864). At the time of listing, the primary threat to the plover was
the loss and degradation of habitat from human activities. Published
concurrently in today's Federal Register is our 12-month finding on a
petition to delist the Pacific Coast WSP. In that document, we
determined that delisting of the Pacific Coast WSP was not warranted
because it meets the criteria for discreteness and significance as
outlined in our 1996 Policy Regarding the Recognition of Distinct
Vertebrate Population Segments Under the Endangered Species Act (61 FR
4722), and is still likely to become endangered within the foreseeable
future throughout all or a significant portion of its range. Therefore,
we determined that the Pacific Coast WSP Distinct Population Segment
(DPS) should remain classified as a threatened species, because it is
not extinct, it is not considered to be recovered, and the original
data used for classification were not in error. However, our 12-month
finding also concluded significant progress has been made toward
recovery in a relatively short period (approximately 10 years), but
that additional recovery actions are needed. This proposed rule under
section 4(d) of the Act was developed to further support and enhance
the conservation of the Pacific Coast WSP.
Summary of Recovery Progress
A Notice of Availability for the Western Snowy Plover (Charadrius
alexandrinus nivosus) Pacific Coast Population Draft Recovery Plan
(Draft Recovery Plan) was published in the Federal Register on August
14, 2001 (66 FR 42676). The Final Recovery Plan, currently under
development, will provide the comprehensive strategy for the
collaborative stewardship approach needed to recover and ultimately
delist this distinct population segment (DPS). Implementation of this
proposed rule would provide an incentive to habitat managers to
participate in the recovery strategy outlined in the Draft Recovery
Plan (66 FR 42676). Below we discuss the three recovery criteria
presented in the Draft Recovery Plan, and our progress to date in
fulfilling those criteria.
First Recovery Criterion (Parts A and B)
Part A: Maintain for 10 years an average of 3,000 breeding adults
distributed among 6 Recovery Units (RU) as follows: (RU-1) Washington
and Oregon, 250 breeding adults; (RU-2) Del Norte to Mendocino
Counties, California, 150 breeding adults; (RU-3) San Francisco Bay,
California, 500 breeding adults; (RU-4) Sonoma to Monterey Counties,
California, 400 breeding adults; (RU-5) San Luis Obispo to Ventura
Counties, California, 1,200 breeding adults; and (RU-6) Los Angeles to
San Diego Counties, California, 500 breeding adults.
Status: Population estimates are developed by multiplying the
number of adult plovers observed during breeding window surveys by a
correction factor of 1.3, which adjusts the observed number to that of
a known population. As a result, the current population estimate for
the U.S. portion of the Pacific Coast WSP is approximately 2,300 based
on the 2005 breeding window survey (Stenzel, in litt. 2004; Page, in
litt. 2005; Jensen, in litt. 2006; Kelly, in litt. 2006).
Not all Recovery Units are meeting their individual criteria.
Recovery Units 1, 2, 3, and 6 are below their goals, while RU-4 and RU-
5 are currently meeting or exceeding their goals. Collectively,
recovery of the Pacific Coast WSP within each of the six Recovery Units
is necessary to maintain breeding population dynamics, ensure
protection and appropriate management of wintering and migratory
habitat, and ensure the long-term health and sustainability of the
Pacific Coast WSP across its current range. Attainment of the
population goals in two of the Recovery Units is encouraging, and we
believe that the population increases are directly attributable to a
reduction in threats through implementation of management actions by
our partners, including the Department of Defense, Federal and State
resource agencies, local governments, non-governmental entities,
private land managers, and academic researchers.
Part B: Implement monitoring of site-specific threats, incorporate
management activities into management plans that ameliorate or
eliminate those threats, and complete research necessary to modify
management and monitoring actions.
Status: Each Recovery Unit has achieved success in managing
plovers, their habitat, and non-compatible activities, and each has
experienced a resulting increase in plover numbers. Significant
progress has been made to recover the Pacific Coast WSP, yet additional
recovery actions are needed. We will continue to encourage and support
our partners to implement recovery actions. Successful partnerships are
essential to the recovery of this DPS.
Second Recovery Criterion
Maintain a yearly average productivity of at least one fledged
chick per male in each Recovery Unit in the last 5 years prior to
delisting.
Status: Monitoring programs to assess this element have been
implemented in the Monterey Bay Area and greater Humboldt County Area,
California, and throughout coastal Oregon. Monitoring programs have not
yet been developed for other portions of the Pacific Coast WSP's range.
Monitoring has indicated that fledging success varies between
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sites and between years. The monitoring program provides a mechanism to
assess reproductive success over time (Colwell et al. 2005; Lauten et
al. 2006).
Third Recovery Criterion
Develop and implement mechanisms to assure long-term protection and
management of breeding, wintering, and migration areas in order to
maintain the subpopulation sizes and average productivity specified
above.
Status: Some progress has also been made to achieve this element,
including the policies enacted by California and Oregon State Parks,
the Department of Defense (DOD), Bureau of Land Management (BLM), U.S.
Forest Service (USFS), National Wildlife Refuge System (NWR), and
multiple local governments to protect Pacific Coast WSP habitat.
Progress includes the State of Oregon's efforts to develop a Habitat
Conservation Plan (HCP) as part of an incidental take permit
application, and California State Park's HCP development for San Luis
Obispo County, California. Although take may be authorized for legal
activities, conservation measures associated with the incidental take
permits are believed to offset adverse affects, and will promote
recovery. We will continue to support similar types of recovery actions
through implementation of a special 4(d) rule.
Specific Recovery Strategies Currently Underway in Each of the Recovery
Units
RU-1 (Washington and Oregon)
The USFS, BLM, and Willipa Bay NWR have cleared nonnative
vegetation and recontoured beach sand dunes to provide western snowy
plover breeding and wintering habitat. Restoration actions at Willipa
Bay NWR, New River, the North Spit of Coos Bay, and the Overlook
(Siuslaw National Forest) have all attracted breeding plovers. Oregon
State Parks is in the process of developing a Statewide coastal HCP for
plovers. Predator management, including the use of nest exclosures and
sparing use of lethal trapping, resulted in a record reproductive year
in 2003. Although not as successful as 2003, 2004 was also a very good
reproductive year for snowy plovers in Oregon and Washington (see
Figure 1 (Jensen in litt. 2005; Kelly in litt. 2005)). Washington State
has seen plovers from California and Oregon become established as
breeders, benefiting from the management successes to the south.
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RU-2 (Del Norte, Humboldt, and Mendocino Counties, California)
Although snowy plovers had been known along the Eel River gravel
bars in Humboldt County, a post-listing breeding site was discovered in
1995. That site has been the most productive plover breeding site
within this Recovery Unit, and in California north of the San Francisco
Bay. The California State Parks has been a leader with habitat
restoration, monitoring, and the
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use of symbolic fencing (temporary post and cable) to direct human use
at the beach. Plovers nested at Manchester State Beach for the first
time in 2003, and returned in 2004. A single plover nest was documented
at Gold Bluffs Beach in 2004, which was the first since the early
1980s. Humboldt County Parks has enacted a ``plover friendly''
ordinance to reduce impacts to breeding plovers. The BLM and the
California Department of Fish and Game (CDF&G) also manage winter and
breeding habitat, and have conducted habitat restoration and human
disturbance management. The Humboldt State University and a private
contractor conduct the majority of the monitoring and implementation of
recovery actions within the unit in partnership with Federal, State,
and local agencies.
RU-3 (San Francisco Bay (Napa, Alameda, Santa Clara, and San Mateo
Counties), California)
The Don Edwards-San Francisco Bay NWR has acquired lands and is
working with the Cargill Salt Company to restore historic tidal salt
marsh around San Francisco Bay. The CDF&G and the California Department
of Transportation (Caltrans) also both manage plover habitat within the
Recovery Unit. Monitoring is primarily conducted by San Francisco Bay
NWR staff and the San Francisco Bay Bird Observatory. The San Francisco
Bay NWR is a leader in plover management for the unit, and we expect
plover numbers to increase as management measures are implemented.
RU-4 (Sonoma, Marin, San Mateo, Santa Cruz, and Monterey Counties,
California)
The California State Parks and the Point Reyes Bird Observatory
have developed some of the leading outreach tools that have been found
to be effective rangewide. Both California State Parks and the Point
Reyes Bird Observatory have worked cooperatively with the National Park
Service (Golden Gate National Recreation Area and Point Reyes National
Seashore), the Salinas River NWR, and the CDF&G to manage human use in
plover wintering and breeding habitat adjacent to large population
centers. The Salinas River NWR, along with California State Parks and
Point Reyes Bird Observatory, has made significant achievements in
habitat and predator management. Symbolic fencing, nest exclosures,
lethal and nonlethal methods of predator control, and outreach
techniques have all been pioneered within this Recovery Unit. Plovers
had record reproductive success at Monterey Bay during 2003 (See Figure
2 (Page in litt. 2005)).
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[GRAPHIC] [TIFF OMITTED] TP21AP06.002
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RU-5 (San Luis Obispo, Santa Barbara, and Ventura Counties, California)
This Recovery Unit manages the largest number of breeding and
wintering plovers. The California State Parks and Vandenberg Air Force
Base (AFB) are the primary managers within the unit. For the most part,
plovers do not affect mission-related activities at Vandenberg AFB.
Vandenberg AFB has increased its management measures since 2000, with a
positive response in plover reproductive success. Management actions at
Oceano Dunes State Vehicular Recreation Area have also bolstered the
plover numbers. The California State Parks is developing an HCP for
plovers for the San Luis Obispo District, including Oceano Dunes State
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Vehicular Recreation Area. Unocal also has remediated impacts to
plovers by restoring contaminated habitat.
RU-6 (Los Angeles, Orange, and San Diego Counties, California)
Plovers in this Recovery Unit have lost significant habitat through
development and recreational use. The management of some practices,
such as beach raking, could allow for additional habitat within the
unit. Southern California beaches are highly impacted due to intense
human use. As a result, plovers are dispersed. The primary beach
managers within the unit are the California State Parks and the
military (Camp Pendleton, North Island Naval Air Station). The San
Diego NWR complex manages plover habitat at the Tijuana Slough NWR and
at salt ponds within San Diego Bay. Plovers have benefited from
protective measures afforded California least terns (Sterna antillarum
browni), including fencing and predator control. Predator and
vegetation management at the Bolsa Chica lowlands has improved plover
hatch rates at that site. Overall, plover reproductive numbers have
remained fairly constant throughout the recovery unit, with some
increases experienced during the last few years.
The three recovery criteria (Service 2001) stated above define what
is needed in order for the Pacific Coast WSP to be delisted, that is,
when the DPS has recovered to the point where it no longer needs the
protection of the Act. Delisting will be proposed when all Recovery
Units meet their recovery criteria or threats have been adequately
addressed. In the interim, however, we believe we have an opportunity
to provide a mechanism through this rule pursuant to section 4(d) of
the Act, which will encourage increased conservation efforts for the
Pacific Coast WSP. This approach will recognize and reward successful
conservation efforts in large portions of the range where Pacific Coast
WSP have met recovery goals, and it will provide positive incentives to
those land managers working in other parts of the range where recovery
targets have not yet been achieved.
Proposed Special Rule
Section 4(d) of the Act provides that when a species is listed as
threatened, we are to issue such regulations as are necessary and
advisable to provide for the conservation of the species. Our
implementing regulations (50 CFR 17.31) for threatened wildlife
generally incorporate the prohibitions of section 9 of the Act for
endangered wildlife, except when a ``special rule'' promulgated
pursuant to section 4(d) of the Act has been issued with respect to a
particular threatened species. The prohibitions at 50 CFR 17.31
generally make it illegal to import, export, take, possess, ship in
interstate commerce, or sell a member of the species. The ``take'' that
is prohibited includes harassing, harming, pursuing, hunting, shooting,
wounding, killing, trapping, capturing, or collecting the wildlife, or
attempting to do any of those things. A special rule for a specific
threatened species would establish only those particular prohibitions
that are necessary and advisable for its conservation. In such a case,
the general prohibitions in 50 CFR 17.31 would not apply to that
species, and instead, the special rule would define the specific take
prohibitions and exceptions that would apply for that particular
threatened species or DPS, which we consider necessary and appropriate
to conserve the species.
At the time the Pacific Coast WSP was listed as a threatened DPS in
1993 (58 FR 12864), we did not promulgate a special section 4(d) rule,
and as a result, all of the section 9 prohibitions, including the
``take'' prohibitions, apply to the DPS. Subsequent to the listing of
the Pacific Coast WSP, certain Federal, State, and County agencies, and
some local governments (collectively referred to as the Jurisdictions)
have implemented conservation measures for the Pacific Coast WSP, such
that several areas are now meeting or exceeding their Recovery Unit
population objectives identified in the Draft Recovery Plan (Service
2001). We anticipate that the continued implementation of conservation
measures by Jurisdictions throughout the range of the Pacific Coast WSP
will likely result in additional areas meeting or exceeding their
recovery goals in the future.
We are proposing to issue this section 4(d) rule of the Act because
we believe that the regulations are necessary and advisable to provide
for the conservation of the species. This proposed special rule (1)
will recognize the positive recovery efforts and accomplishments that
have resulted in increased regulatory flexibility, (2) will provide an
incentive to other land managers within the range of the Pacific Coast
WSP to implement similar recovery measures in areas where Pacific Coast
WSP numbers have not yet reached recovery targets, and (3) better
enable the Service and other conservation entities to target their
limited resources to areas where Pacific Coast WSP recovery needs are
greatest.
Therefore, through this special rule under section 4(d) of the Act,
we propose to replace the currently applicable blanket prohibition
against incidental take of Pacific Coast WSP. The special rule would
remove Section 9 prohibitions applicable to activities that occur
within Counties where the County has met its Breeding Bird Management
Goal specified in Table 1 below and has provided documentation of
Pacific Coast WSP conservation activities to the Service. This
documentation, which is described below, should be provided to the
Service within six months of adoption of this rule. The removal of
prohibitions will apply to the actions of individuals and local and
state entities within a County which has met the requirements above.
The conservation benefit of the 4(d) rule is (1) to encourage
further recovery efforts for the Pacific Coast WSP, and (2) to more
effectively target the regulatory and proactive powers of the Act to
those areas in greatest need. Our goal is to recognize where existing
conservation measures have resulted in population increases that meet
recovery goals and to ensure the likelihood of those conservation
measures expanding and continuing into the future. This 4(d) rule is
also designed to encourage additional conservation measures in areas
where recovery goals have not been met. Minor adverse impacts to the
Pacific Coast WSP, consistent with provisions of a final 4(d) rule, if
adopted, would not appreciably diminish the likelihood of survival and
recovery of the DPS. The special 4(d) rule will exempt those Counties
which have met recovery goals from the prohibition on take as long as
populations remain above recovery goals.
Proposed Rule Application
The activities we propose to be exempt under this special rule
include most of the common recreational and commercial activities
occurring within Pacific Coast WSP habitat, as well as activities that
promote conservation, such as habitat restoration and certain research
(see below for discussion of recovery permits under Section 10(a)(1)(A)
of the Act). We propose that all activities in those Counties which
have met their recovery goals be exempt from take prohibitions.
However, intentional take of Pacific Coast WSP as defined by the Act
will continue to be prohibited (16 U.S.C. Sec. 1532(19)) throughout
the range of the plover regardless of whether recovery goals have been
met in the County.
Research/monitoring actions that relate to the status of the
Pacific Coast WSP or its reproductive success would
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continue to be subject to the Service's Recovery Permit process under
Section 10(a)(1)(A). Our rationale for permitting these research
activities separate from this special 4(d) rule is that these
activities will be tied to the Service's determination of the
rangewide, Recovery Unit, and County status of the species. Continuing
to regulate these activities under the Section 10(a)(1)(A) permit
program allows us to maintain quality and consistency of data
throughout the range of the Pacific Coast WSP.
Because we are proposing, in part, that take exemptions under this
special 4(d) rule be based on County breeding Pacific Coast WSP numbers
(Breeding Bird Management Goals), we believe that the Service should
retain oversight of how data are collected and applied to reduce actual
or perceived conflicts between surveyors and use advocates. Therefore,
we propose that this special rule apply only to activities that would
not involve handling any life stage of Pacific Coast WSPs. The
activities that would continue to require a permit under the section
10(a)(1)(A) program include banding of adults or chicks, floating eggs
to determine hatch dates, surveys to locate and monitor nests, and
population surveys and censuses conducted during the breeding season.
The Service believes that as long as Pacific Coast WSP numbers in
certain areas have increased to recovery levels and local measures are
in place to maintain those numbers, exempting otherwise lawful
activities carried out by local citizens in these areas from the take
prohibitions still promotes the conservation of the Pacific Coast WSP.
The approach will increase local public support for Pacific Coast WSP
recovery; it will provide an incentive to other Counties to implement
conservation measures and to meet recovery goals; and it will enable
the Service to focus limited staff and financial resources to those
Counties where the Pacific Coast WSP recovery need is greatest.
The ``documentation'' provided to the Service by a County should be
a summary of what conservation measures have been carried out within
that County and what is anticipated to occur in the future. This
documentation may, but is not limited to, include existing Service-
approved plans or other approved Federal actions. It may include, but
is not limited to, local ordinances, agreements or plans which may be
already developed and implemented by entities within the County as well
as actions taken by the County itself. For example, documentation
provided to the Service by a County may include (a) management
agreements or plans developed and implemented on State and/or Federal
lands within the County such as Biological Opinions, Habitat
Conservation Plans, Safe Harbor Agreements, Partners for Fish and
Wildlife Agreements, and/or conservation agreements, (b) County
ordinances that have been implemented to alleviate threats to Pacific
Coast WSP, (c) other beneficial agreements, plans and/or actions taken
by individuals or entities that protect the Pacific Coast WSP, and/or
(d) other voluntary measures implemented within the County.
We have chosen the County-level of government jurisdiction as the
most appropriate measure for implementation of this special rule. The
Pacific Coast WSP occurs along approximately 1,500 miles of coastline
within the United States. Within this range there is a tremendous
variety of ownership patterns, government jurisdictions, and land
management challenges. Accordingly, governance at the County level
seems the most appropriate and efficient level to implement the
measures proposed in this rule. Counties are large enough to affect
meaningful recovery actions, but they are not so small that
coordination across the 1,500 mile range would strain the Service's
limited staff resources. Also, the Service can organize Pacific Coast
WSP monitoring data at the County level, which enables better tracking
of Pacific Coast WSP recovery goals.
As indicated in Table 1, some counties have Breeding Bird
Management Goals of zero or which are ``unknown'' because targets will
depend on the results of restoration activities (Service 2001).
Counties with Breeding Bird Management Goals of zero support wintering
Pacific Coast WSP (Service 2001). These Counties could take advantage
of this 4(d) rule by providing documentation (see above) that
management focusing on maintenance of wintering habitat for Pacific
Coast WSP is occurring in the County. Counties with Breeding Bird
Management Goals currently identified as ``unknown'' should also be
able to take advantage of this 4(d) rule even though they currently do
not have breeding bird management goals identified. These Counties can
provide documentation (see above) to the Service that management
addressing breeding and/or wintering plovers is occurring in the
County.
Table 1.--Breeding Bird Management Goals by Location \1\
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Location Management goal breeding numbers (adult birds)
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WASHINGTON:
Grays Harbor County........................... 38
Pacific County................................ 40
OREGON:
Clatsop County................................ 4
Tillamook County.............................. 32
Lincoln County................................ 4
Lane County................................... 14
Siltcoos River to Tenmile Crk. (Lane and 20
Douglas Counties).
Douglas County................................ 4
Umpqua River to Horsfall Beach (Douglas and 20
Coos Counties).
Coos County................................... 54
Bandon St. Pk. to Floras Lk. (Coos and Curry 54
Counties).
Curry County.................................. 16
CALIFORNIA:
Del Norte County.............................. 18
Humboldt County............................... 162
Mendocino County.............................. 20
Sonoma County................................. 10
Marin County.................................. 64
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San Francisco County *........................ 0
San Francisco Bay * (Napa, Alameda, Santa Unknown lands in SF Bay are dependant on Tidal Salt Marsh
Clara, and San Mateo Counties). restoration.
San Mateo County (not SF Bay)................. 34
Santa Cruz County............................. 42
Jetty Road to Mouth of Elkhorn Slough 54
(Monterey and Santa Cruz Counties).
Monterey County............................... 262
San Luis Obispo (SLO) County.................. 182
Pismo Beach/Nipomo Dunes (SLO and Santa 350
Barbara Counties).
Santa Barbara County.......................... 594
Ventura County................................ 374
Los Angeles County *.......................... 0
Orange County................................. 50
San Onofre Beach (Orange and San Diego 15
Counties).
San Diego County.............................. 485
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\1\ Adapted from Appendix B of the Pacific Coast WSP Draft Recovery Plan.
* Management goals for numbers of breeding birds are zero or unknown in the Draft Recovery Plan. Recovery
efforts for these Counties should focus on wintering habitat.
If this proposed rule is finalized, a County will apply for an
exemption under the 4(d) rule by contacting the Service and providing
documentation of the County's conservation efforts within six months.
The Service will provide the most recent available survey information
and work with the County to provide technical assistance as necessary
when requested.
The number of breeding adults within a County will be determined by
the results of rangewide breeding season window surveys. Determination
of whether a County qualifies for this special rule will be based on
Breeding Bird Management Goals and will depend on that County meeting
those Goals for two out of the five previous years. On an annual basis,
the Service will determine County plover adult numbers by mid-December,
thereby allowing entities to know their eligibility for 4(d) exemptions
under this rule by January 1st of each year. Using two out of five
years to qualify for exemptions allows for natural fluctuations in
population dynamics. We believe that the qualifying criteria would
ensure that the Pacific Coast WSP does not decline below regional
recovery goals as a result of implementing this proposed rule.
Additionally, we believe that the two out of five year criterion
assures that there are healthy numbers of plovers before take
exemptions could apply and maintains currently healthy populations.
Once a County has qualified for the 4(d) exemptions under this rule,
the exemptions will apply as long as the jurisdiction continues to meet
its recovery population goals.
We believe that this 4(d) rule would provide a conservation benefit
to Pacific Coast WSP. We expect that it would increase and promote
voluntary and cooperative efforts to conserve Pacific Coast WSP. We
also expect that implementation of this special 4(d) rule for the
Pacific Coast WSP would: (1) Recognize the positive conservation
accomplishments that have improved the status of the species by
offering take exemptions to landowners and managers within Counties
that are meeting recovery goals, (2) remove inefficient or unnecessary
Federal regulatory oversight in portions of the listed entity's range
where recovery goals have been met and/or threats have been addressed,
thus enabling limited management resources to be more efficiently
targeted to other areas or conservation needs, and (3) serve as a
positive incentive to beach managers and landowners to increase
voluntary plover conservation in areas that have not yet met County
Breeding Bird Management Goals.
Public Comments Solicited
Comments and suggestions are invited from all interested parties.
We are interested in knowing if the relevant jurisdictions are
interested in the development of such special regulations. We request
comments on whether we should propose special regulations that would
provide the opportunity for County jurisdictions, through their
authorities, to attain compliance under the Act to implement and
enforce land and water management activities. In addition, we request
specific information and comment from Federal and State agencies, local
municipalities, and private individuals or organizations on the
following:
(1) The types of activities we should address in a special rule;
(2) Appropriate monitoring and reporting programs for covered
activities;
(3) Whether wintering habitat should be taken into account in a
4(d) rule, and if so, how it should be addressed;
(4) How areas without breeding bird goals identified in the Draft
Recovery Plan, but which are important for wintering plovers, such as
Los Angeles County, should be treated in the 4(d) rule;
(5) What level of jurisdiction is the appropriate level at which
such a special rule should be proposed;
(6) If and how the Service should consider including within this
special rule consideration for individual landowners who develop and
implement management strategies within Counties that have not yet met
plover population recovery goals, but that adequately address threats
to the species; and
(7) Whether using 2 out of the previous 5 years to assess whether a
County has met its Breeding Bird Management Goals is appropriate;
In summary, we welcome comments and suggestions on this proposed
special 4(d) rule to customize the section 9 take prohibitions for
those Counties that are meeting or exceeding their population
objectives identified Table 1 above.
Public Hearing and Informational Meetings
The Act provides for a public hearing on this proposal, if
requested. Requests must be filed by the date specified in the DATES
section above. Such requests must be made in writing and addressed
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to the Field Supervisor (see ADDRESSES section).
We will hold informal public informational meetings at coastal
locations in Washington, Oregon, and California during the comment
period for this proposal (see DATES section). The locations and dates
of the informational meetings will be widely publicized in advance in
the press. The locations and dates of these public informational
meetings can also be obtained by contacting the Arcata Fish and
Wildlife Office (see ADDRESSES section).
Peer Review
Under our policy of peer review (59 FR 34270), we will obtain the
expert opinions of at least three appropriate and independent
specialists concerning appropriateness of exempting certain activities
from take prohibitions where recovery goals have been met and the most
efficient way to implement the measures proposed in this special rule.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping or order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Is the description of the rule in
the SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the proposed rule? What else could we do to make the rule
easier to understand? Send a copy of any comments that concern how we
could make this rule easier to understand to Office of Regulatory
Affairs, Department of the Interior, Room 7229, 1849 C Street, NW.,
Washington, DC 20240. You also may e-mail the comments to
[email protected].
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget has determined that this rule is not a
significant regulatory action. This rule would not have an annual
economic impact of more than $100 million, or significantly affect any
economic sector, productivity, jobs, the environment, or other units of
government. This rule would reduce the regulatory burden of the listing
of the Pacific Coast distinct population segment of the western snowy
plover under the Act as a threatened species by providing certain
exemptions to the section 9 prohibitions. These exemptions would reduce
the economic costs of the listing by removing for certain activities in
certain areas, the need for Section 10 compliance with the Act, and by
reducing enforcement by resource agencies; therefore, the economic
effect of the rule would benefit managing entities, taxpayers, and the
economy. This effect would not, however, rise to the level of
``significant'' under Executive Order 12866. This rule would not create
inconsistencies with other Federal agencies' actions. Other Federal
agencies would be mostly unaffected by this proposed rule. This rule
would not materially affect entitlements, grants, user fees, loan
programs, or the rights and obligations of their recipients. Because
this rule would allow individuals to engage in otherwise prohibited
activities without first obtaining individual authorization, the rule's
impacts on affected individuals would be positive. This rule would not
raise novel legal or policy issues. We have previously promulgated
section 4(d) rules for other species.
Regulatory Flexibility Act
We have determined that this rule would not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial
regulatory flexibility analysis is not required, and a Small Entity
Compliance Guide is not required. To assess the effects of the rule on
small entities, the Service referred to the recent Final Economic
Analysis conducted as a requirement to designating critical habitat for
the Pacific Coast WSP (Industrial Economics, Inc. 2005). That analysis
identified management of beach recreation as having the greatest impact
to tourism and therefore small, local businesses. Exempting certain
activities from the Act's take prohibitions would likely reduce
management requirements in areas where Management Goals have been met.
The Final Economic Analysis can be obtained from the Arcata Fish and
Wildlife Office (see ADDRESSES section), or at the following Web site:
http://arcata.fws.gov/es/birds/plover.html.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule would not have
an annual effect on the economy of $100 million or more; would not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and would not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
The Service refers to the Final Economic Analysis (Industrial
Economics, Inc. 2005) conducted as a requirement to designate critical
habitat for the Pacific Coast WSP. That analysis determined that the
majority of the costs associated with designation of critical habitat
for the Pacific Coast WSP stem from management of recreational
activities (i.e., managing habitat and minimizing incidental take
associated with coastal activities). Reducing the regulatory oversight
of beach-related recreational activities would benefit tourism and
small businesses by promoting coastal use. Therefore, we believe that
implementation of a special 4(d) rule that reduces the Service's
regulatory involvement and promotes the continued conservation of the
listed entity would likely have no effect, or a positive effect, on
small local beachfront businesses. The analysis assumes that beach
goers are more likely to not vacation in a coastal area with plover
restrictions designed to avoid incidental take. Small beachfront
businesses that depend on coastal tourism are therefore negatively
impacted when beach users go somewhere else. Reducing the need to
manage beaches as strictly as in the past due to the exemption of some
forms of incidental take will reduce the likelihood tourists will go
elsewhere, thereby improving conditions for small beachfront
businesses.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.,) this rule would not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. This rule would not have a significant or unique
effect on State, local, or tribal governments or the private sector. A
Small Government Agency Plan is not required.
[[Page 20634]]
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. This rule modifies existing
regulatory burdens to the public, by allowing individuals to have more
freedom to pursue activities (i.e., legal beach driving) that impact
the Pacific Coast WSP, without first obtaining individual authorization
from the Service.
Federalism
In accordance with Executive Order 13132, this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. Implementation of a special 4(d) rule is
expected to reduce Federal oversight associated with management of the
Pacific Coast WSP by exempting specified forms of incidental take of
plovers in areas where Breeding Bird Management Goals have been met,
and where managing entities have entered into long-term management
strategies. Exempting certain activities from the take prohibitions
removes or reduces the need to comply with Section 10(a)(1)(B) of the
Act.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Executive Order.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR part
1320 implement provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). The OMB regulations at 5 CFR 1320.3(c) define a
``collection of information'' as the obtaining of information by or for
an agency by means of identical questions posed to, or identical
reporting, recordkeeping, or disclosure requirements imposed on, 10 or
more persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``10 or
more persons'' refers to the persons to whom a collection of
information is addressed by the agency within any 12 month period. For
purposes of this definition, employees of the Federal Government are
not included. A Federal 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.
This proposal does not contain any new collections of information
that require OMB approval under the Paperwork Reduction Act. This rule
refers to 10(a)(1)(A) recovery permits required for research and
monitoring actions that relate to the status of the Pacific Coast WSP
or its reproductive success. Our recovery permit applications are
already approved by OMB under OMB control number 1018-0094, which
expires September 30, 2007.
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) and E.O. 13175, we have evaluated possible
effects on federally recognized Indian Tribes. We have determined that,
because no Indian trust resources occur within the range of the Pacific
Coast WSP, this proposed rule would have no effect on federally
recognized Indian Tribes.
Energy Supply, Distribution or Use (Executive Order 13211)
We have evaluated this proposed rule in accordance with E.O. 13211
and have determined that this rule would have no effect on energy
supply, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons stated in the preamble, the Service proposes to
amend part 17, subpart B of chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for the ``Plover, western
snowy,'' under ``Birds,'' on the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Plover, western snowy............ Charadrius U.S.A. (AZ, CA, CO, U.S.A. (CA, OR, T 493 17.95(b) 17.41(c)
alexandrinus KS, NM, NV, OK, WA), Mexico
nivosus. OR, TX, UT, WA), (within 50 miles
Mexico. of Pacific coast).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.41 by adding a new paragraph (c) to read as
follows:
Sec. 17.41 Special rules--birds.
* * * * *
(c) Western snowy plover (Charadrius alexandrinus nivosus), Pacific
Coast Population.
(1) Applicable prohibitions. All prohibitions and measures of
Sec. Sec. 17.31 and Sec. Sec. 17.32 shall apply to any threatened
Pacific Coast western snowy plover, except as noted in paragraphs
(c)(4) and (c)(5) of this section.
(2) How are various terms defined in this special rule? We define
certain terms that specifically apply to the Pacific Coast Western
Snowy Plover (Pacific Coast WSP) and this special rule as follows:
(i) Breeding Bird Management Goal means the target number of
breeding plovers by County, listed in the draft
[[Page 20635]]
Recovery Plan for the Pacific Coast WSP.
(ii) Documentation provided to the Service by a County should be a
summary of what conservation measures have been carried out within that
County and what is anticipated to occur in the future. This
documentation may include existing Service-approved plans or other
approved Federal actions. It may include local ordinances, agreements
or plans which may be already developed and implemented by entities
within the County as well as actions taken by the County itself. For
example, documentation provided to the Service by a County may include
(a) management agreements or plans developed and implemented on State
and/or Federal lands within the County such as Biological Opinions,
Habitat Conservation Plans, Safe Harbor Agreements, Partners for Fish
and Wildlife Agreements, and/or conservation agreements, (b) County
ordinances that have been implemented to alleviate threats to Pacific
Coast WSP, and/or (c) other beneficial agreements, plans and/or actions
taken by individuals or entities that protect the Pacific Coast WSP.
(3) What activities are exempted from threatened species permits by
this rule? This rule exempts all activities in those Counties which
have meet their recovery goals, subject to the conditions in paragraphs
(c)(4) and (c)(5) of this section, in the habitat of the Pacific Coast
population of the western snowy plover from the requirement for
threatened species permits.
(4) What activities continue to be subject to threatened species
permits under this rule? Research/monitoring actions that relate to the
status of the Pacific Coast western snowy plover or its reproductive
success continue to be subject to the Service's Recovery Permit process
under section 10(a)(1)(A) of the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) and our regulations at 50 CFR 17.22
and 17.32. The activities that would continue to require a permit under
the section 10(a)(1)(A) program include banding of adults or chicks,
floating eggs to determine hatch dates, surveys to locate and monitor
nests, and population surveys and censuses conducted during the
breeding season. Intentional take of Pacific Coast WSP remains
prohibited under the Endangered Species Act of 1973, as amended (16
U.S.C. 1531 et seq.).
(5) What must Pacific Coast western snowy plover jurisdictions do
to be authorized under the special rule? A County (or other appropriate
entity acting on behalf of a County and with County approval) is exempt
from incidental take of Pacific Coast western snowy plover associated
with activities listed in paragraph (c)(3) of this section, if:
(i) The County has provided documentation to the Service that
summarizes what conservation measures to benefit the Pacific Coast WSP
have been carried out within the County and what is anticipated to
occur in the future, and
(ii) The County has met its Breeding Bird Management Goal as
provided in the table in paragraph (c)(5)(ii)(A) of this section, for
at least 2 years out of the most recent 5 years.
(A) Table of Breeding Bird Management Goals By Location.
----------------------------------------------------------------------------------------------------------------
Location Management goal breeding numbers (adult birds)
----------------------------------------------------------------------------------------------------------------
Washington:
Grays Harbor County..................... 38
Pacific County.......................... 40
Oregon:
Clatsop County.......................... 4
Tillamook County........................ 32
Lincoln County.......................... 4
Lane County............................. 14
Siltcoos River to Tenmile Crk. (Lane and 20
Douglas Counties).
Douglas County.......................... 4
Umpqua River to Horsfall Beach (Douglas 20
and Coos Counties).
Coos County............................. 54
Bandon St. Pk. To Floras Lk. (Coos and 54
Curry Counties).
Curry County............................ 16
California:
Del Norte County........................ 18
Humboldt County......................... 162
Mendocino County........................ 20
Sonoma County........................... 10
Marin County............................ 64
San Francisco County *.................. 0
San Francisco Bay * (Napa, Alameda, Unknown Lands in SF Bay are dependant on Tidal Salt Marsh
Santa Clara, And San Mateo Counties). restoration.
San Mateo County (not SF Bay)........... 34
Santa Cruz County....................... 42
Jetty Road to Mouth of Elkhorn Slough 54
(Monterey and Santa Cruz Counties).
Monterey County......................... 262
San Luis Obispo (SLO) County............ 182
Pismo Beach/Nipomo Dunes (SLO and Santa 350
Barbara Counties).
Santa Barbara County.................... 594
Ventura County.......................... 374
Los Angeles County *.................... 0
Orange County........................... 50
San Onofre Beach (Orange and San Diego 15
Counties).
San Diego County........................ 485
----------------------------------------------------------------------------------------------------------------
[[Page 20636]]
(B) A County that has a Breeding Bird Management Goal of zero, as
listed in the table in paragraph (c)(5)(ii)(A) of this section, may
qualify for incidental take exemption for the activities listed in
paragraph (c)(3) of this section by providing documentation to the
Service that management focusing on maintenance of wintering habitat
for Pacific Coast WSP is occurring in the County.
(C) A County with a Breeding Bird Management Goal currently
identified as ``unknown,'' as listed in the table in paragraph
(c)(5)(ii)(A) of this section, may qualify for incidental take
exemption for the activities listed in paragraph (c)(3) of this section
by providing documentation to the Service that management addressing
breeding and/or wintering plovers is occurring in the County.
(D) A County's 4(d) incidental take exemption for the activities
listed in paragraph (c)(3) of this section will apply for as long as
Pacific Coast WSP populations remain above recovery goals.
(6) How will the Service inform the public of annual Breeding Bird
Management Goal numbers?
(i) We will provide the most up-to-date information on Breeding
Bird Management Goals on the Arcata Fish and Wildlife Office Web site
at http://arcata.fws.gov/es/birds/ploverbreedingdata.htm. We will post
the Breeding Bird Management Goals on the Web site prior to January 31
of each year.
(ii) Jurisdictions may also obtain Breeding Bird Management Goals
by contacting the Arcata Fish and Wildlife Office at 1655 Heindon Road,
Arcata, CA 95521; 707-822-7201 (voice); 707-822-8411 (fax).
Dated: April 12, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish, Wildlife, and Parks.
[FR Doc. 06-3793 Filed 4-20-06; 8:45 am]
BILLING CODE 4310-55-P