| June 2, 2008
Guest column: A critical look at designating critical habitat for wintering piping plovers
By MIKE BERRY
May 15 Federal Register notice "Revised Designation of Critical Habitat
for Winter Population of the Piping Plover in North Carolina" is a U.S.
Fish and Wildlife Service (FWS) response to a lawsuit and court order
that goes back nearly a decade.
Federal Register gives notice of the FWS intention to designate four
popular recreation areas of the Cape Hatteras National Seashore
Recreation Area as critical habitats for wintering piping
plovers. The notice requests comment on related economic and
environmental impact assessments. It seeks feedback from the public by
asking a series of leading questions, not about whether the federal
government should designate four areas of the national park as critical
habitat, but of the economic and environmental benefits of the
Most importantly, this latest designation notice adds 215 acres of
critical habitat to two previously proposed areas of the park.
This critical habitat designation for winter populations has some
significant implications for the national park, the public, and the
villages on the Outer Banks.
• The critical habitat designation for a single
bird species establishes a legal framework that limits National Park
Service management discretions and options in how the designated areas
are altered and used. The designation will ultimately deny or reduce
public access and use of the four most popular recreational beaches in
• The critical habitat designation will add to
the cost and further delay the construction of a much-needed Bonner
Bridge replacement. The current bridge is rated at an extremely
dangerous category 2 on a scale of 100. It is the only evacuation route
from a hurricane-prone island that during hurricane season may have
tens of thousands of visitors in addition to its full-time residents.
The bridge abutments and access road resides in the designated areas
that cannot be altered as prescribed by ESA.
• The critical habitat designation will prevent
physical alterations of the designation areas, such as with roads,
ramps, walkovers, and will reduce management alternatives that might
otherwise be effective components of a final ORV management plan that
is currently being prepared through a multi-stakeholder regulatory
The origin of the critical habitat designation, along with a revised
economic analysis and environmental impact analysis and a question and
answer sheet that attempts to explain and justify the proposal in
summary form can be found at http://www.fws.gov/nc-es/piplch/piplch.html
Readers of this article are encouraged to visit and examine the
materials found on that Web site and to submit comments and concerns to
the U.S, Fish and Wildlife Service by June 16.
ESA and Critical Habitat Designation Background
Section 4 of the Endangered Species Act (ESA) requires the federal
government to designate “critical habitat” for any species
it lists under the ESA. Most provisions of the ESA revolve around
preventing extinction. However, critical habitat is one of the
few provisions of ESA that focuses on species recovery.
Critical habitat is defined in Section 3 of ESA as: (1) specific areas
within the geographical area occupied by the species at the time of
listing, if they contain physical or biological features essential to
conservation, and those features may require special management
considerations or protection; and (2) specific areas outside the
geographical area occupied by the species if the agency determines that
the area itself is essential for conservation.
The purpose of a critical habitat is to set aside land believed to be
essential in the recovery of a listed species and to exclude human use
and disturbance of that land so that the species might thrive.
Under the critical habitat designation provision, all federal agencies
must ensure that any actions they authorize, fund, or carry out are not
likely to jeopardize the continued existence of a listed species or to
destroy or adversely modify its designated critical habitat.
Supposedly, a critical habitat designation, in a strictly legal sense,
does not set up a preserve or refuge, but for all practical purpose, it
Concerning this notice for designating portions of the Cape Hatteras
National Seashore as critical habitat, it is important to know that
there are specific legal requirements that must be followed by the Fish
and Wild life Service.
1. Critical habitat designations must be based on the "best scientific
information available," in an open public process, within specific
2. Careful and accurate consideration must be given to the economic impacts.
3. The designation must comply with the requirements of the National
Environmental Policy Act and include an Environmental Assessment that
examines, among other things, impacts on national security, local
economy, and other relevant environmental impacts of specifying any
particular area as critical habitat.
4. The federal government may exclude an area from critical habitat if
the benefits of exclusion outweigh the benefits of designation, unless
excluding the area will result in the extinction of the species
Since 1986, critical habitat designation has not often been used by the
federal government as the primary mechanism for species recovery. The
widely publicized recovery of many species largely has been the result
of focused attention to the species and management actions provided by
Section 7 ESA. In 1986, the Department of Interior issued a
regulation limiting the protective status of critical habitat. Few
critical habitats were designated between 1986 and the late 1990s. In
the late 1990s and early 2000s, a series of court orders backed by a
ground swell of "politically correct environmentalism" forced FWS to
begin to designate critical habitats. Since 2001, FWS has tried
repeatedly to designate critical habitat—with considerable
attention and effort directed at the four most popular and publicly
used beach areas of the Cape Hatteras National Seashore.
In December, 1996, Defenders of Wildlife filed a lawsuit against the
Department of the Interior and the Fish and Wildlife Service for
failing to designate critical habitat for the piping plover. A similar
lawsuit for the Northern Great Plains population of the piping plover
was filed in 1997. These lawsuits were combined, and in February, 2000,
the court issued an order directing the FWS to publish a proposed
critical habitat designation for the Great Lakes and Northern Great
Plains populations. Since the FWS could not distinguish the Great Lakes
and Great Plains birds on their wintering grounds, it designated
critical habitat for all U.S. wintering piping plovers
collectively. This was the non-science based, bureaucratic
rationale for designation the four areas of the Cape Hatteras National
Seashore as critical habitat.
On July 10, 2001, the FWS published a final rule designating 137 areas
along the coasts of North Carolina, South Carolina, Georgia, Florida,
Alabama, Mississippi, Louisiana, and Texas as critical habitat for the
wintering population of the piping plover.
In 2003, Dare and Hyde counties and the Cape Hatteras Access
Preservation Alliance sued the FWS, challenging the designation of four
units of critical habitat on the Cape Hatteras National Seashore. The
court ruled in favor of these plaintiffs, and in a November 1, 2004
opinion, the court sent back to FWS the designation of these four areas
The court found and directed the following:
1. The court directed that FWS show that primary constituent elements
-- the physical and biological features essential to piping plover
conservation -- exist on areas that are designated. It ordered FWS to
clarify whether that these physical and biological features are
essential for the recover of the piping plover and may require special
management or protection.
2. The court found that the FWS designation of critical habitat must
include compliance with the National Environmental Policy Act. The
court found that the Environmental Impact Analysis did not comply with
the requirements of the National Environmental Policy Act, was
incomplete, and possibly contained erroneous information.
3. The court found that the FWS's economic analysis was arbitrary and
capricious, in that it considered the impact of off-road vehicles and
other human use of beaches, but did not address information in the
record about the possibility of closures of the beaches to such use or
how off-road vehicle use might be affected by the designation.
4. The court also found that the FWS omitted from the economic analysis
the full costs associated with the designation and ordered the FWS to
As in all of the previous notices to designate portions of the Cape
Hatteras National Seashore as critical habitat, this current
governmental effort is legally flawed and, as in the past, does not
comply with federal law or with the court order. In some places,
the notice is misleading.
The critical habitat designations as indicated in the Federal Register
notice are not based on best scientific information available, in an
open public process, within specific timeframes.
Without a documented basis in science, the proposed rule to designate
four regions of Cape Hatteras National Seashore as critical habitat for
the piping plover cannot be shown to be warranted.
In the Federal Register notice, the FWS does not discuss any current
scientific basis for the designations. Instead the FWS directs the
readers who might be interested to "ecology and biology" of wintering
populations of the piping plover to a Federal Register notice published
in 2001 (66 FR 36038). When a reader examines that July, 2001, Federal
Register notice, the reader finds that only the first half of the
notice is posted. When in search of scientific reference in the second
half of the notice, the science-minded reader gets the following
message: "The requested document is not available." (See http://ecos.fws.gov/docs/federal_register/fr377.pdf )
However, in the publicly available first 50 pages of the July, 2001,
Federal Register notice (66 FR 36039), the reader finds a very weak and
out-of-date science rationale for the critical habitat
designation. This statement, published seven years ago, appears
to be the primary FWS scientific justification for past and current
"Overall winter habitat loss is difficult to document; however, a
variety of human-caused disturbances may affect plover survival or
utilization of wintering habitat…." Two 1999
references are indicated with the statement, but the full citation for
these references cannot be found in that July, 2001, notice.
Current Knowledge of the Piping Plover
The piping plover was common in the 1800s but on the verge of
extirpation by the 1890s and early 1900s because of market hunting, egg
collecting, and fashion trends. The Migratory Bird Treaty Act of 1918
protected the bird and allowed plover populations to gradually recover
during the 1920s and 1930s. Since World War II, coastal development and
use of beaches has been widely believed to contribute plover population
declines. There has also been a population increase of mammalian
and avian predators. This is a natural process that has received
very little attention in the piping plover protection discussion.
In 1986, the Atlantic Coast piping plover population was listed as
"threatened" in the United States. A recovery goal of 2,000 pairs was
set for the Atlantic Coast population.
Fewer than 2,800 breeding pairs of piping plovers were reported in the
U.S. and Canada in 1995. About half of these were in the Great Plains
region, and most of the rest were along the Atlantic Coast. The Great
Lakes population is classified as endangered, while the other two
populations are classified as threatened.
Active monitoring and management of the birds as provided by Section 7
of the Endangered Species Act are the primary integral parts of federal
Scientific information and knowledge concerning the piping plover, as
with any other protected species, is ever changing. Like with all
environmental management programs, scientific information used for
regulation and management decisions, needs to be updated and reviewed
every few years, at least on a five-year basis. Some federal
environmental laws have this requirement built into the statute. The
Endangered Species Act does not.
Concerning the current notice of critical habitat designation for
piping plovers, there is no up-to-date, science-based evidence that the
proposed areas for critical habitat designations are essential for the
recovery of the piping plover. In fact, there has been no consideration
of recent studies and data suggesting that the piping plover, since
listed as threatened in 1986, is well on its way to recovery provided
by current environmental practices.
In the current background materials provided by FWS, there is no
analysis or discussion of piping plover population changes since the
bird was first listed as endangered in the 1980s. This is a
blatant violation of the requirement that critical habitat designations
be based on the "best scientific information available." The
science basis for proposed designation should address the following
question: What are the bird population trends and what is the
scientific basis for determining those trends?
Currently, there is available information giving strong indication that
the piping plover is recovering throughout North America.
It is well documented that the piping plover has survived, grown in
numbers, or has been stable for the past 20 years. This
observation of survival and recovery is probably the result of the
focused attention encouraged by the Section 7 of Endangered Species Act
Since its date of listing as "threatened," the Atlantic Coast piping
plover population has increased, growing from 790 pairs in 1986 to
1,386 pairs in 1999 (U.S. Fish and Wildlife Service, 2000). This
10-year data seems to be the most recent data published by FWS.
However, published on a federal government U. S. Geological Survey Web
site is a brief abstract and preliminary finding of the 2006 piping
plover census (http://fresc.usgs.gov/products/ppl/
). The site states that "Overall, winter numbers were very
high…” and "Breeding season numbers also appear higher
than 2001 in general…"
The final report of the piping plover census is not available for
public review. An obvious question is, "Why has this 2006 Piping Plover
census not been published and presented for public review as part of
the current designation notice?"
A South Carolina piping plover census took place from Feb. 7-11 of this
year. This year's mid-winter bird count found a record number of piping
plovers. South Carolina census teams found 125 piping plovers
along the coast, with an additional 10 birds that were known to be
present. The 2008 piping plover totals represent the third
record-setting effort in a row in South Carolina. During the 2007
census, teams found 114 piping plovers, which followed a then-record
100 plovers found during the 2006 international piping plover census.
In Saskatchewan, Canada, recovery is also evident. In 2007, 1,435
piping plovers were observed, the highest number since the survey began
in 1991. Saskatchewan is home to 30 percent of the 4,700 piping plovers
that live in the prairies and Great Plains. The Canadian goal is
to have a stable population of 2,300 birds.
This currently available and recently collected data suggests that the
piping plover is "recovering" and in no way suggests that additional
designation of critical habitat at the Cape Hatteras National Seashore
is essential for the recovery of the bird. The number of birds
observed in recent times indicates that conservation efforts are
working without the need for critical habitat designation. The
data indicate that piping plover populations everywhere are not in
decline, as is time and again stated by special interest
environmentalist organizations. Piping plover populations are growing
or have at least stabilized even in the most extreme and remote regions
of their range.
At the Cape Hatteras National Seashore, the interim management plan
established in 2005 and published in the federal register last summer,
is also producing results. Six breeding pairs of piping plovers
were found at in the park the 2007 breeding season. The 2007
count equals that of 2006. This represents three more pairs
than were found in 2005 and the most known pairs since 1999.
Overall, the piping plover observations in the park are positive and
consistent with those found along the South Carolina coast.
There has been no careful consideration given to the economic impacts.
The revised economic analysis is once again greatly flawed and is based
on discredited information.
The reissued “Economic Analysis of Critical Habitat Designation
for the Wintering Piping Plover” remains greatly flawed,
especially in the face of a government funded peer review. The
draft economic analysis does not respond to the court mandate to do a
comprehensive economic impact analysis, nor does it follow federal
government guidelines for this kind of impact study.
The economic analysis was prepared and reissued in response to a court
order. The draft economic analysis is a contracted “paper
study” prepared by Industrial Economic, Inc. (IEC) and relies
heavily on the unpublished "Cape Hatteras National Seashore Visitor Use
Study, August 2003" (Vogelsong study). The 2003 park usage study
has been time and again criticized as biased in terms of its survey
questions and very limited in terms of actual ORV counts. It
greatly undercounts both ORV and beach usage. The analytical
methodology is flawed to the point it would never pass a peer review
process. The draft economic analysis is flawed to such an extent
that it is now, for the third time, a demonstrated waste a public funds.
After five years of repeated criticisms by a number of qualified
reviewers, the Vogelsong study was this past year submitted for formal
peer review by the Park Service as part of the negotiated rulemaking
process to develop a long-term ORV management plan. A copy of the peer
review report can be found on the document list at: http://parkplanning.nps.gov/projectHome.cfm?parkId=358&projectId=10641
Five peer reviewers, all recognized experts, were asked the fundamental
question: "How suitable is the science of the (Vogelsong) study
for use in the planned role in decision-making?"
Four of the five reviewers concluded that the Vogelsong study did not
provide a sound scientific basis for estimating ORV use at Cape
Hatteras National Seashore or the economic impact of visitor spending
associated with ORV use. All reviews concluded that the information
provided in the report insufficient for making a decision regarding
limiting or prohibiting the use of ORVs at the national park. All five
reviewers were unanimous in their concern about the lack of detail on
research methods provided in the report.
As did previous reviewers of the study, the government-chartered peer reviewers, found the following shortcomings:
• The Vogelsong study includes no estimates of
turnover rates throughout the day and no discussion of weekday-weekend
or seasonal variations that would be required to arrive at an overall
annual estimate of ORV use.
• Information is lacking on the number of days
ORV sites were observed and the times of the day that observations were
• The sampling of sites for ORV counts may not constitute a representative probability sample.
• The spending averages in the Vogelsong report
are generally consistent with averages from similar parks if it’s
assumed that the figures apply to overnight visitors staying in motels,
hotels, and other commercial rental housing
• The report failed to tie the economic impact
data to overall ORV use at the national seashore park, and the focus
was entirely on direct expenditures.
Even with the deficiencies of the Vogelsong study well documented and
known to government decision-makers, the flawed Vogelsong study remains
as a primary source of information in the economic analysis used to by
the FWS to justify the designation of critical habitat at the park.
3. The Environmental Assessment required by the National Environmental Policy Act is also flawed.
The document that is titled "Environmental Assessment" is actually a
regulatory impact analysis. The document contains only limited
referenced science associated with the piping plover. The primary
reference to science is Cornell University’s online database,
which requires payment for access -- this is not an available or
suitable reference for an open public review process. In
addition, the Piping Plover Fact Sheet and Frequently Asked Question
Sheet posted on the U.S. Fish and Wildlife Service Web site are
undated, contain no references, and fail to indicate any level of peer
The review materials do not properly indicate the fact that the four
proposed sites for critical habitat designation are currently very
healthy and sustainable ecosystems, as indicated by the diverse number
of interactive species (350-plus) that they contain. These four
habitats are currently successfully managed and protected by the
cooperative efforts of government agencies, non-governmental
organizations, and the concerned public without the special designation
of critical habitat.
The analysis does not indicate that the four areas currently proposed
for the critical habitat designation are very small in area, constantly
altered by storms, and have not been shown through peer-reviewed
science to be essential for the recovery of the piping plover
population, especially on a national basis.
Finally, and most discrediting, the Environmental Analysis also uses
the discredited Vogelsong Study as the major reference and basis for
analysis of economic impact.
There has been no forthright discussion of the implications of the
designation to ORV management and construction of a much-needed Bonner
As indicated by the Endangered Species Act, a critical habitat
designation is a statute-based declaration by the federal government
indicating need for special management attention for species
recovery. This special designation, by specific language in the
statute, automatically limits the discretionary management options of
the Park Service and other government agencies, especially with regard
to public participation and negotiated rulemaking for a long-term ORV
The critical habitat designation opens wide the door for lawsuits that
will obviously focus on the banning of ORVs and public assess to the
shoreline. This has been the stated objective of environmental
activist organizations for the past 30 years. The purpose of
Endangered Species Act is to promote the protection of species, not
The U.S. Fish and Wildlife Service should be very clear and open to the
actual and probable impact of the critical habitat designation,
especially about very likely lawsuits suits that can lead to the
banning of ORVs from designated beaches.
In the notice, the FWS uses contradictory language when it states of page 28088:
"If implemented, these closures would reduce the opportunity for
recreational activities such as ORV use. The Service believes,
however, that additional beach closures due to designation of critical
habitat for wintering piping plovers are unlikely."
Given the legal framework put in place regarding critical habit
designation, the FWS is at least naïve in believing that
litigation will not be forthcoming from environmental activists
organizations that exist for the sole purpose of litigating and driving
the public away from the national seashore. Currently, even without the
critical habitat designation, thousands of citizens arrive at the Cape
Hatteras National Seashore only to finds beaches closed for public
use. In the face of critical habitat designation, the public
anxiety about future beach closures and ORV prohibition will increase
One of the most disturbing sections of the critical habitat designation
notice is the statement that the FWS makes related to the Bonner
Bridge. The FWS "….plans to consult with the Federal
Highway Administration on the replacement of the Bonner Bridge.
At this time, it is unclear if these projects will affect the proposed
revised critical habitat; therefore, this analysis does not include
administrative costs associated with these projects."
This particular statement indicates that the FWS has not fully assessed
the public safety aspects of the critical habitat designation impact,
let along the economic full costs of the designation. It is
governmentally irresponsible to place humans at risk in the name of
protecting a single bird species, which is otherwise being successfully
protected through thoughtful management processes that have been shown
to be effective without the special legal designation of critical
Once again, it must be emphasized: The replacement of the Bonner Bridge
is essential to the protection of human life and the economy of
Hatteras Island. The critical habitat designation will add to the cost,
and delay the construction of the much-needed Bonner Bridge.
(Dr. Michael A. Berry served as any Army officer in Vietnam in
the 1960s. After returning to civilian life, he earned a
Doctorate in Public Health and worked in the U.S. Environmental
Protection Agency, where, as a senior manager and scientist, he served
as the Deputy Director of National Center for Environmental Assessment
at Research Triangle Park, N.C. During his 28-year career with EPA, he
had extensive interactions with environmental organizations, local
governments, the federal courts, U.S. Congress, universities worldwide,
and institutions, such as the National Academy of Sciences, the World
Health Organization, and the North Atlantic Treaty Organization. For
more than 20 years, Dr. Berry taught public health, environmental
science, and business and environment courses at the University of
North Carolina. He is currently a writer and part-time
consultant, specializing in the evaluation of environmental quality and
human health effects, environmental management strategies and
If you want to submit comment on critical habitat
If you want to submit a comment on the U.S. Fish and Wildlife
Service’s proposal to establish critical habitat for the piping
plover at four areas of The Cape Hatteras National Seashore, you can
get details from the Federal Register, Volume 73, Number 95, page
28084, Thursday, May 15, 2008. You can read it online at http://edocket.access.gpo.gov/2008/pdf/E8-10887.pdf
If you want to submit comments online, go to http://www.regulations.gov/search/index.jsp.
Enter identification number, E8-10887. You can click on
“Comment or Submission” button to submit comments.
You can also, click on “Search” and enter the number and
read other comments that have been submitted.