25 February 2010

Critical Habitat Designation for the Belted Piping Plover - A Historic Perspective

The following text is a written request that the U.S. Fish and Wildlife Service designate critical habitat for the Piping Plover, which was sent to the agency in the summer of 1988. Though this account was submitted at that time, under my name, I was not the original author. An employee of the Fish and Wildlife Service provided the information on one a 5 1/4" floppy disk of that time. A note on the disc, was dated July 8, 1988:

"If you're still interested, here's how a petition to designate CH should read. Please leave my name out of any discussion on this. Thank your for your interest." The note was signed, and with office and home phone numbers provided. The man which provided the document is still a federal employee, though now working for the Forest Service.

The document was retrieved, reviewed, and printed - basically in its entirety - and sent to the Washington D.C. office, via registered mail, with a number of R386449649.

There was no subsequent action. Then in 1993, a representative of the National Audubon Society asked whether documentation was available that would indicate the FWS had received the document.

My records indicated: "This is to acknowledge receipt of your petition of July 25, 1988. requesting the U.S. Fish and Wildlife Service (Service) to designate critical habitat for the piping plover, Charadrius melodus. The designation of critical habitat is not a petitionable action under the Endangered Species Act. In accordance with the Administrative Procedure Act (5 U.S.C. 553), the Service will take your petition and information provided into active consideration in deciding about piping plover critical habitat." The letter - signed by the acting director and with a date of Aug 31 1988 - continued, mentioning there would be no deadlines for a reply, but that information would be provided about the Services's decision.

There was also a letter submitted by the conservation committee and president of the Audubon Society of Omaha, with the same date, as included with the 15 page petition, and was sent to Frank Dunkle, director of the FWS.

Nothing occurred for several years, and questions were finally raised in 1993. There was a request from the National Audubon Society about any available proof that the FWS had received the material. They had, and a confirmatory letter was provided to the conservation group in June 1993.

This information is being presented to convey a perspective on the "early times" of efforts to conserve this species more than twenty years ago, when the times were much different...

In the 1984 proposed rule to list the Piping Plover (49 Federal Register 44712), a major factor for listing was "the present or threatened destruction, modification or curtailment of its habitat or range":

The damming and channelization of rivers in the Midwest has resulted in the elimination of nesting sandbar habitat along hundreds of miles of rivers in the Dakotas, IA and NE... Channelization and withdrawal of water for irrigation have altered water flows in the Platte River in Nebraska and elsewhere. This has lead to elimination of sandbar scouring by high water and ice and the formation of vegetation less suitable for nesting...

The December 11, 1985 final rule (50 Federal Register 50726) states: "The primary threats to the Piping Plover are habitat disturbance and destruction, and disturbance of nesting adults and chicks."

The Fish and Wildlife Service obviously recognizes that the destruction of habitat, in particular nesting habitat, is the primary cause of the alteration of the species' numbers and range. This recognition warrants the protection and restoration of existing and potential Piping Plover habitat (an example for Nebraska is the Missouri River Mitigation Plan).

The Great Lakes and Northern Great Plains Piping Plover Recovery Plan emphasizes habitat protection. Habitat protection, conservation or even enhancement and creation should be options for providing habitat.

One positive step for habitat protection is designating critical habitat. However, the FWS in the 1984 proposed rule determined that such designation for the Piping Plover "would not be prudent because of the often ephemeral nature of the plover's nesting habitat."

We have considered the ephemeral habitat information as given in the classification rule, examined data regarding Piping Plover nesting habitat and examined some existing critical habitat designations made by the Departments of Commerce and Interior for other species. Two points are obvious:

1). Piping Plovers nest in dynamic ecosystems where habitats are changing. These ecosystems are not ephemeral and are stable when protected from degradation. Such habitats are easily defined in geographic terms and have been readily recognized. These sites are thoroughly reviewed in the Piping Plover Recovery Plan; and

2) Critical habitat has been designated for other wide-ranging species indicating that critical habitat designation for the Piping Plover is a biologically sound and realistic requirement.

Some of the information we reviewed is summarized here according to geographic regions where plovers occur. The FWS has seen many of these references during the listing process. Some material is based on important new research findings that are pertinent. The most recent information is included since in the December 11, 1985 final rule listing the Piping Plover, the FWS decided to review additional data prior to making a decision on critical habitat designation.


As given in the Piping Plover Recovery Plan, essential habitat in the northern Great Plains consists of certain, defined river segments in ND, SD and NE as well as groups of alkali wetlands in ND. Riverine sites comprise only a few segments of four rivers which have the flow regime and channel morphology necessary for breeding Piping Plovers. Most of the Missouri River, for example, is a stabilized channel, or ditch as it has been called locally, or reservoir where nesting habitat has been engineered away. However, three stretches - Garrison Dam at Hazelton ND; Fort Randall to Springfield SD; and Gavins Point Dam to Ponca State Park, NE) where Piping Plovers predictably occur, often on the same sandbar year after year. There are also stretches of the Platte, Niobrara and Loup Rivers, NE where Plovers regularly occur. Many of these sites have been named and yearly visited and described by field personnel.

Designating stretches of rivers for threatened and endangered species has been a common practice as indicated by the current designation of over 1,500 kilometers of rivers in the U.S. for threatened and endangered fishes. These fish do not occupy every meter of the rivers but occur, depending on the year, at various locations within the designated reaches. In a similar manner, reaches of rivers and groups of alkali wetlands can be designated as critical habitat for the Piping Plover.

The following references, including excerpts of letters received by your agency, provide the biological basis to support the designation of critical habitat in the northern Great Plains.

1). Letter from Dr. Mark Ryan (a member of the Recovery Plan team) University of Missouri- Columbia, to FWS dated 13 December 1984:

The proposed rule as published in the Federal Register suggests that it is not possible to designate areas that, if protected, would aid conservation of the Piping Plover. We are not in complete agreement with this view. Although Piping Plovers occur sporadically over much of the Missouri Coteau physiographic region and the Missouri River basin of ND, there are two specific regions where they occur predictably. These regions are the only major Glacial Outwash Plains in ND (refers to map attached to letter). Although numbers of breeding pairs fluctuate at specific lakes, we believe these areas are critical centers of distribution for breeding Piping Plovers in ND. Protection of alkali lakes in these glacial outwash plains would significantly effect conservation of the Piping Plover. (Specific lakes are listed in our attached 1984 report). Lakes in the northernmost outwash plain are currently threatened by development and adjacent land uses.

Dr. Ryan and his students are continuing their studies of the Piping Plover in ND. Data on banded plovers show that Piping Plovers return to groups of alkali wetlands in central North Dakota. One of Dr. Ryan's students. Eleanor Prindiville Gaines details the specific habitats utilized in this area of ND (Prindiville, E. 1986. Habitat selection and productivity of piping plovers in central North Dakota. MS thesis, University of Missouri- Columbia. 34 pp.) Her work was also presented in the Journal of Wildlife Management 52(2) in 1988.

2). Haig, S.M. 1987. The population and life history patterns of the piping plover. PhD. dissertation, Univ. of North Dakota, Grand Forks. 121 pp. Dr. Haig, leader of the Plover Recovery Team, conducted the most detailed study of Piping Plover behavior to date. The following excerpts from her dissertation cover nest-site tenacity of adults (philopatry) and ephemeral habitat. Her research was conducted at a site at Lake Manitoba, Canada.

The Piping Plover ... is a monogamous, biparental territorial shorebird which often breeds repeatedly in the same area (citing Wilcox 1959, Cairns 1982, Haig 1985, Wiens 1986, Haig and Oring 1987). Throughout their range, Piping Plovers nest in highly ephemeral beach habitat that is regularly washed out or altered (Haig et al. 1986). Based upon previous studies of monogamous shorebirds (Soikkeli 1967, Hale and Ashcroft 1982, Gratto et al. 1985, Lessells 1984 and others), one might predict that Piping Plovers exhibit a high evidence or perennial monogamy and site fidelity. The dynamic environment they inhabit, however, provides more occasions for birds to reassess mate and nesting territory retention both within and between years.
Once Piping Plovers, like other Charadriis, have bred at a site, they tend to return in subsequent years... Familiarity with an area has been shown to facilitate acquisition of food, territories, and mates; and to enhance territory defense and predator avoidance (Shields 1982, 1984; Moore and Ali 1985; Dobson and Jones 1986). While there are potential benefits to site fidelity, lack of other breeding site options may also influence return patterns. When local population densities are high, a bird may be more successful if it returns to a familiar area than if it moves elsewhere (Weatherhead and Boak 1986). In Manitoba, Piping Plover site fidelity may be intensified due to a lack of suitable, stable habitat.
In Manitoba and MN (Wiens 1986), Piping Plovers return regardless of their previous success at the site. This may indicate a lack of suitable alternatives, or reflect the species' adaptation to breed in ephemeral sites where annual nest destruction is common. Because philopatric birds in Manitoba had better reproductive success than the overall population for any given year, experience in an area may improve an individual's lifetime reproductive success, thus providing an additional explanation for return patterns.
Piping Plovers in Manitoba nest in highly ephemeral beach habitat and experience widespread destruction of nests and territories throughout the breeding season. A skew towards males in the population and an apparent limit in the number of suitable nesting territories may affect intensity of mate and site retention during and between years, although it does not change the monogamous nature of the Piping Plover mating system.
On an annual basis, Piping Plovers manifest high levels of breeding site fidelity. Regional constraints on nest site availability may contribute to high rates of annual return observed among male and female Piping Plovers. Both sexes return as would be predicted from Greenwood's (1980, 1983) hypothesis regarding dispersal patterns in territorial birds. Males returned more often than females, and both sexes returned regardless of previous reproductive success. Annual mate retention was low despite the availability of many former mates in subsequent years. The opportunity to improve mate and/or territory quality may outweigh benefits attained from mate retention. Furthermore, many birds paired with individuals present the year before; this gives them the benefit of pairing with a familiar individual, but could improve their choice or territory or mate.

Dr. Haig also presents data revealing a 67.7% return rate for nesting adults and 17.7% return rate for chicks. She states:

During the breeding season, most Piping Plovers return to former nest sites. The variability in return patterns among local sites, however, is equivalent to the range of differences reported among other migratory shorebird species. The distribution of local breeding sites, including the availability of adjacent breeding sites, may account for some of this variability among Piping Plovers.

Drs. Haig and Lewis Oring further discuss nest site fidelity in two forthcoming papers in the Auk: Distribution and Dispersal in the piping plover; and Mate, site and territory fidelity in Piping Plovers.

3). Letter from the Nebraska Ornithologists' Union to FWS dated 17 January 1985:

The Nebraska Ornithologists' Union (NOU) questions the validity of the critical habitat selection on p. 44714 of FR 49(218). Specific nest sites may be "ephemeral"; however general localities have extremely high fidelity by nesting Piping Plovers as evidenced by the annual occurrence and nesting efforts at several sites in Nebraska and as documented conclusively by Wilcox (1959. A 20 year banding study of the piping plover. Auk 76:129-152). Furthermore, in Section 424.14 e FR 49(191):38909; provisions are given whereby the Secretary of the Interior "... shall designate as critical habitat areas outside the geographical area presently occupied by a species..." Therefore, NOU feels the Service's views that it is not possible to designate an area which, if given protection, would be used by plovers in the future and that an area may or may not be used each year because of varying water levels has no relevance to critical habitat designation. These sites should be looked at as a dynamic habitat complex. Certainly if water is too high at a particular site, an adjacent area would have the potential for use. Some degree of active habitat management may be necessary in order to ensure its availability: ie. mechanical clearing of woody vegetation on former nesting islands. Also critical habitat has been designated for the Whooping Crane (Grus americana) within its migration corridor with no assurance that the birds will use these sites annually. That, in no uncertain terms, does not negate the value of such habitat or the necessity of such habitat for Whooping Cranes.

4). Letter from Dale L. Heneger, Commissioner, ND Game and Fish Department to FWS dated 16 January 1985:

We believe further that the FWS should designate Chain-of-Lakes and the Missouri River from Garrison Dam to Hazelton as "critical habitat." These two areas support over 50% of the known ND breeding population, and we doubt if any other major area remains unidentified. Critical habitat designation for these areas would ensure half of the species known habitat in ND would be protected.

5). Schwalbach et al. 1986. Status, distribution and production of interior least terns and piping plovers along the mainstem Missouri River in South Dakota; Schwalbach, M.J. 1988. Conservation of least terns and piping plovers along the Missouri River and its major western tributaries in South Dakota. MS thesis, South Dakota State University; U.S. Fish and Wildlife Service, 1986.

These reports discussed location of habitat important to federally listed bird species on the Missouri National Recreational River. They also define specific locations of sandbars that have been continually used by nesting Piping Plovers on the Missouri River between Gavins Point Dam and Ponca State Park.

6). NE Games and Parks Commission. 1981-1987. Platte River interior Least Tern and Piping Plover nesting surveys. Unpublished reports, Lincoln, NE.

These reports show that Piping Plovers consistently nest at certain riverine sandbars and stretches of the Platte, Niobrara and Missouri Rivers. They may nest at other sandbars not previously used depending on the condition of those bars. The results of these surveys is that certain stretches of these rivers are consistently used by plovers and can be designated as critical habitat.

7). The Platte River Whooping Crane Critical Habitat Maintenance Trust has been researching the Piping Plover on the central Platte for several years.

Their findings indicate that nesting habitats are finite, predictable and known. Banded Piping Plovers show a high rate of return to the central portion of the Platte River.


The following references and excerpts of letters document the feasibility of critical habitat designation in the Great Lakes region.

1). Wiens, T.P. 1986. Nest-site tenacity and mate retention in the piping plover (Charadrius melodus). MS thesis, University of Minnesota. 34 pp.

Wiens carried out his research at Pine and Curry Island in Lake of the Woods MN. He states in part:

Nest-site tenacity. Although the criteria for comparing nest-site tenacity are not well defined in the literature, it is reasonable to conclude that Piping Plover site tenacity was strong in this study. Eighty-four percent of all breeding birds nested within 200 meters of their nest of the previous years; the median distance between nests in consecutive years was 41 m.
The strong philopatry of adults (almost 70% returning in consecutive years) was typical of migrant species that defend breeding territories.

2). Letter from Michigan Natural Features Inventory to FWS dated 4 January 1985:

Recovery efforts are critical to the continuation of the Piping Plover in Michigan and throughout its range. To that end, it is important that federal protection be conferred as soon as possible. Although critical habitat will not be conferred at the time of listing, further investigation into the advantages and feasibility of critical habitat designation within the region where the species is proposed for endangered status is recommended. Arguments regarding the ephemeral nature of plover nesting habitat generally do not apply to the Great Lakes shoreline, where plovers nest on brad sand/gravel beaches.

3). Letter from Dr. William C. Scharf, Professor of Biology, Northwestern Michigan College to FWS dated 3 January 1985. Dr. Scharf, a Great Lakes authority on shorebirds, states in part:

However, I find the "Critical Habitat" section on page 44714, vol. 49, no. 218 of the Federal Register to be inaccurate. I believe it is possible to designate critical habitat to be used by the plover. My records indicate appropriate critical habitat for nesting and migration is the beach area one mile west on both sides of Gull Point, South Manitou Island, Leelanua County, Michigan and the beach area between Donner's Point and Dimmick's Point on North Manitou Island, Leelanua County, Michigan. Other critical habitat in this region would include the beach of Cathead Bay, Leelanua Township, Leelanua County, Michigan.

4). Letter from Robert Russell, author of a paper on the status of the Piping Plover in the Great Lakes, to FWS:

Critical Habitat: I strongly protest the sentence "The Service has determined that critical habitat for the Piping Plover would not be prudent because of the often ephemeral nature of the plover's nesting habitat." ... Great Lake beaches are known for their stability over long period of time. Long-term fluctuations may cause a rise or fall of lake levels of several feet but the several key remaining breeding areas on the Great Lakes for the plover and some of the major formerly occupied areas, are only affected in a minor way by these rises and falls. For instance, Wilderness State Park, Michigan, contains many dozens of acres of suitable habitat at both high and low lake water levels and the birds have bred continuously since the 1940's and probably many decades before that time. Similarly, Long Island in the Apostle Islands chain retains habitat whether lake levels rise or fall. Long Point, Ontario, while undergoing some major geological changes in the recent past, seems always to have had a large amount of suitable habitat available.
I maintained that several Great Lakes sites have been continuously occupied by plovers for the past several decades and that the historic sites should be considered critical habitat. From a historical perspective and from a biogeographical viewpoint in which critical habitats could act as seed reservoirs for eventual spread of the species, I believe the following sites should be considered critical habitat:
1). the entire island of Long Island, Wisconsin. The population, while small, apparently has inhabited this island for at least 35 years.
2). the beaches of Wilderness State Park, Michigan west of the campground west to the Waugoshance Point area.
3). Beaver Island, Michigan. Much of the beach area is already in state hands. Beaches on the west and southern shores appear to be utilized by plovers. For breeding sites, I refer you to Lambert and Ratcliff's 1981 study and their followup by the state of Michigan.
4). Beaches from Whitefish Point, Michigan west for at least five miles along the Lake Superior shoreline.


It is our understanding the FWS is currently pursuing critical habitat designation for the Piping Plover on the Atlantic Coast in apparent recognition of the feasibility and importance of such designation. Nevertheless, we present here various references that support the feasibility of critical habitat designation on the Atlantic Coast.

1). Letter from Bradford G. Blodget, state ornithologist, Massachusetts Division of Fisheries and Wildlife to FWS dated 28 November 1984. Mr. Blodget states that Piping Plovers have bred at Monomoy NWR for over 20 years.

2). Letter from Dr. Scott M. Melvin, Massachusetts Natural Heritage Program to FWS dated 17 January 1985. Dr. Melvin lists seven sites consistently used by breeding Piping Plovers between 1970 and 1984.

3). Letter from Dr. Benjamin Dane, Professor of Biology, Tufts University, MA to FWS service dated 22 January 1985. Dr. Dane is carrying out a long-term study of the sociobiology of the Piping Plover and for the years 1982-1984 Piping Plovers consistently used a 14 kilometer stretch of barrier beach.

4). Letter from Julie Zickefoose, Director of Conneticut's Least Tern/Piping Plover recovery program, to FWS dated 3 December 1984. Ms Zickefoose states:

In the Critical Habitat section of your report, I was interested to read that "...it is not possible to designate areas which, if given protection, would be used by the plover in the future and whose protection would advance the plover's conservation." Of all the nesting migratory birds in CT, the Piping Plover must be among the most predictable in its choice of nest site. Of the nine plover nesting sites in CT, three (all mainland beaches) have been used more or less consistently over a period of decades. Piping Plovers were found by Aretas Saunders in 1932 on Long Beach, Stratford, and four pairs nest there to this day. Two other such areas are Griswold Point on old Lyme and Milford Point in Milford. In CT, then, I believe it is entirely possible to designate such area which would, if protected, advance the plover's conservation. I might also point out that if a given nesting area is consistently protected, plovers might be more likely to use it consistently. That is one goal of this recovery plan.

5). Seatuck Research Program. 1983. Nineteen eighty-three Long Island least tern and piping plover survey. Cornell Univ. Laboratory of Ornithology. The following excerpt indicates that Piping Plovers have consistently used a specific stretch of beach.

From the scattered records available it would appear that the Piping Plover has experienced a sharp drop in population on Long Island. Wilcox (1939) estimated that there were approximately 500 pairs on Long Island. From 1936-1958, Wilcox (1959) studied the Piping Plover population in the area between Moriches Inlet and Mecox Bay. In 1941 along a 17 mile stretch from Moriches Inlet to Shinnecock Bay he found 64 pairs. In 1958 there were 55 pairs found between Moriches Inlet and Mecox Bay. The 1983 survey found only 24 adults along this stretch of beach from Moriches Inlet to Macox Bay.

6). Letter from Russell A. Cookingham, Director of New Jersey's Fish, Game and Wildlife Division, to FWS dated 26 March 1985:

We believe there are several areas in NJ which, if designated as critical habitat and protected accordingly, would advance the plover's conservation. Non-designation and evaluation of proposed actions on a case by case basis may result in unacceptable continued loss of potential habitat. It may be difficult to protect areas not occupied at the time of evaluation, but historically used or with a potential for future use.

7). Letter from Ann M. Faulds, Shorebird Nesting Project, Delaware Audubon Society, to FWS dated 24 March 1985. Ms. Faulds identifies several sites in Delaware consistently used by Piping Plovers.

8). Letter from the Virginia Chapter of the Nature Conservancy to FWS dated 15 January 1985. Nesting sites are consistently found on a series of barrier islands on the Virginia coast.

9). Letter from Dr. Erica Nol, Dept. of Zoology, Univ. of British Columbia to FWS dated 7 January 1985. Dr. Nol has researched Piping Plovers in the Great Lakes and on the Atlantic Coast. She states:

Contrary to what was maintained in the Federal Register, Piping Plovers (particularly males) are site tenacious from year to year and hence habitats could be set aside for their nesting. From what we know as well, females will return to previous nest sites if successfully raising young in that site.

10). Letters from a.) the Northern Atlantic Region of the National Park Service and b.) from Assateague Island National Seashore to FWS dated 7 January 1985:

a.) We do not find convincing the rationale for failing to designate any critical habitat. Alluvial deposits in and along stream channels, which comprise the species habitat, are decreasing through societal action (ie. gravel mining, damming, stream channelization, etc.). Alluvium naturally shifts slowly through time and space; however, this does not negate the need to designate critical habitat as there is no net loss of habitat in a truly natural, but dynamic, ecosystem. Since major habitat loss is the result of human manipulation, we feel it is imperative that the remaining habitat sites be identified and protected to preserve this species.
Similarly, it would be reasonably easy to identify those sections of Atlantic beaches that have (or did have in recent years) important aggregations of breeding plovers and then protect them by exclusion of those disturbances known to be unnatural.
b.) The Piping Plover ... is a common breeder and summer resident on the northern six miles of Assateague Island. Censuses conducted by the NPS since 1980 indicate a average of eight to ten pairs breeding there each summer.

11. Draft Atlantic Coast Piping Plover Recovery Plan and several FWS sponsored research projects on the Atlantic Coast lend further support to the feasibility of identifying specific locations used year after year by Piping Plovers.


The following references indicate that critical habitat designation is feasible on wintering areas which are recognized and defined.

1. Letter from Dr. Anthony F. Amos, Marine Science Institute, Univ. of Texas at Austin to FWS dated 22 January 1985. Over a seven year period of study, Piping Plovers occurred yearly at Mustang Island, TX, averaging 8.03 birds per km for September to 0.006 birds per km in June when birds would be on northern breeding areas.

2. Letter from Keith Miller, acting regional Director of the National Park Service's Southwest Region to FWS dated 7 December 1984. The Piping Plover occurred yearly on the South Beach of the Padre Island National Seashore during the three year period of observation, 1980-1982.

3. Letter from Dr. Guy A. Baldasarre, Dept. of Zoology, Auburn University to FWS dated 21 December 1984. The west end of Dauphin Island off the coast of Alabama is a major wintering area for Piping Plovers. During the period of study 1972-1982, Piping Plovers were observed yearly at this location and consistently used certain feeding sites (see Johnson, C.M. 1987. Aspects of the wintering ecology of piping plovers in coastal Alabama. MS thesis, Auburn Univ.).


There are additional references supporting the fact that Piping Plovers nest at predictable locations. We believe that the best available biological data shows Piping Plovers nest in geographically definable areas which can be designated as critical habitat.

Furthermore, the Departments of Commerce and Interior have designated extensive critical habitats for other endangered and threatened species. Commerce designated critical habitat for the Hawaiian Monk Seal (Monachus schauinsland) whose habitat, like the Piping Plover is located in a highly dynamic ecosystem (51 Federal Register 16047; April 30, 1986). The monk seal's habitat was described this way:

Many of the habitat components such as beach areas, vegetation, near shore shallow water areas and offshore banks and shoals cannot be simply delineated as specific stretches of beach or specific offshore areas. Therefore, it is necessary to designate entire areas without piecemeal delineations. For example, monk seals use all of the beaches on Green Island at Kure as hauling areas and certain other areas for pupping areas. Additionally, the various sand spits and islets grow, shrink, disappear, change shape and even change location. In some cases, new islets appear after storms or strong tide conditions. Therefore, reference to beaches or beach areas should be assured to include all sand spits and islets.

The critical habitat regulation (50 C.F.R. 226.11 91987) for the monk seal reads:

All beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters and ocean waters out to a depth of 10 fathoms around the following, with a specific latitude and longitude that was given for each:
Kure Atoll
Midway Islands, except Sand Island and its harbor Pearl and Hemes Reef
Lisianske Island
Laysan Island
Gardner Pinnacles
French Frigate Shoals
Necker Island
Nihoa Island

Critical habitat was designated for the Cape Sable Seaside Sparrow over a broad geographic area (50 C.F.R. 17.95, 1984). The sparrow does not occupy all the habitat but could over the years because the habitat is dynamic and different areas become available depending on environmental conditions.

For the Piping Plover, critical habitat designations could include habitats along certain river stretches, and aquatic and shoreline habitats along certain types of wetlands, deep water and marine areas. Critical habitat for the Piping Plover can be designated just as it was designated for these species.

The FWS's reasons for not designating critical habitat for the Piping Plover are given in the 1984 proposed listing rule:

The Service has determined that critical habitat for the Piping Plover would not be prudent because of the often ephemeral nature of the plover's nesting habitat. The plover's breeding and wintering habitats are spread over a large geographic area. Alluvial islands in rivers appear, disappear and reappear depending upon water conditions. Beaches and interior wetlands may or may not be used each year because of varying water levels or changes in beach characteristics. Accordingly, it is not possible to designate areas which, if given protection, would advance the plover's conservation. The effect of a given action upon the plover will have to be assessed in terms of its effect upon the species itself at the time of the action.

None of the above reasons is a valid argument against critical habitat designation. Many components of any species' habitat are ephemeral. Along the Platte River in Nebraska, for example, banks erode, sandbars form and disappear but the rivers character persists and in specific reaches the Piping Plover and other species find habitat. Along the Atlantic Coast storms and hurricanes shape and reshape beaches creating and destroying sand nesting habitat. But the beaches and the river stretches have been recognized and identified.

There are few species in North America for which we now as much about their ecology and habitat requirements as the Piping Plovers (see references cited in the Piping Plover Recovery Plans). Such information allows easy identification of critical habitat.

How could critical habitat designation for the Piping Plover assist the FWS and other federal agencies in their conservation duties? We believe designation would provide a real benefit in Section 7 consultations. Unlike most listed species which are endemic to a few small sized locations and potentially affected by few actions and agencies, the Piping Plover is widespread and subject to many formal consultations. A legal notice of critical habitat designation would prevent confusion over what is and is not Piping Plover habitat; what is and is not important to the species. It would prevent prolonged and unneeded discussions of whether a currently unused alkali wetland, beach or river stretch is habitat that should be protected from a proposed action. In the case of the Piping Plover, federal agencies really do not need critical habitat designation for a definitive notification.

Critical habitat designation for the Piping Plover would make it easier for the Service to handle cumulative impact problems arising from different actions over a period of years. In the case of an endemic species it is usually clear if an action will affect the species and critical habitat review is often not warranted. However, when the protection of wide-ranging species falls solely on the jeopardy clause of Section 7, it may often be difficult to arrive at a jeopardy opinion without critical habitat designation. A finding under destruction and adverse modification of critical habitat would better facilitate Piping Plover conservation than trying to determine if proposed actions in SD and NJ will jeopardize the entire species throughout its range. Critical habitat designation would prevent the gradual loss of small habitat areas which can, over time, cause a great loss in the overall extent of the Piping Plover's habitat.

It costs money and takes staff hours to designate critical habitat, to publish the proposed and final rules. These reasons cannot be used, based on legal regulations, as the basis for not designating critical habitat. Determinations of Effects and Economic Analyses and other required procedures, however, can be stream-lined to reduce expenses.

Given the support for critical habitat designation shown by state agencies, assistance could be available from many sources. Because critical habitat designations are already being made sparingly, the resources that are being saved in other species' listings, those without critical habitat designation, could be used for Piping Plover critical habitat designation.

It is useful to point out in comparison, that the North America Waterfowl Management Plan calls for millions of acres of protected wetlands at a price tag of over $1.5 billion and extensive federal/state cooperation. Critical habitat designation the Piping Plover would cost a trivial fraction of that sum. Habitat conservation efforts would probably benefit waterfowl.

We would also like to mention that in the December 1985 final listing rule for the Piping Plover (50 Federal Register 50731) the FWS stated:

The Service will review the determinability of these [Great Plains/Great Lakes/Atlantic Coast] and other critical habitat areas.... The prudence of such a determination will be reviewed within one year, as allowed under section 4(b)(6)(C) of the Act.

In the same rule the FWS states:

Under Section 4(b)(6)(C) of the Act, the Service extends for a period of one year the determination of critical habitat for the plover. ...A final rule must be published within one year, unless the determination is not prudent.

Over two years have passed and to our knowledge no such determination has been made, at least none publicly in the Federal Register. This lack of action was noted by Senator James McClure in a letter to you dated 23 April 1987. He said in part:

As I have reviewed the two recovery plans for the plover, I fail to see, in light of the virtual extirpation of the plover from many areas, how you can arrive at the determination that the designation of critical habitat is not prudent. The recovery plans clearly identify a number of areas where plovers return year after year... It appears to me that information contained in the [draft] recovery plan beginning on page 39 clearly indicates that areas of critical concern as well as the causes for those concerns have, indeed, been identified by the Service.

We do not agree with the FWS response to Senator McClure's letter that "... actions already underway and those identified in the recovery plans will result in recovery of the species without benefit of a critical habitat designation... ."

By our petition we ask that the FWS examine the biological data and its legal responsibilities to decide, in a timely manner, on the appropriate critical habitat designation for the Piping Plover.

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