Final Rule

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Full Docket–Proposed Rule, Environmental Assessment, Economic Impact Analysis, Comments, and Final Documents–THIS DOCUMENT TAKES TIME TO LOAD, BE PATIENT

VIA CERTIFIED MAIL

Dirk Kempthorne, Secretary,Department of the Interior 1849 C Street, NW Washington DC 20240

Dale Hall, Director, Fish and Wildlife Service 1849 C Street, NW MS 3238 MIB Washington, DC 20240

Dare County is located in northeastern North Carolina along the Atlantic seaboard. The County contains much of what is known as North Carolina’s "Outer Banks" resort and vacation areas and contains approximately one-fourth of the North Carolina coastline. It is the host to the Cape Hatteras National Seashore, the Wright Brothers National Monument, and many other tourist and historical attractions. Dare County has a permanent population of approximately 38,000. However, the County’s tourism industry results in a large seasonal population with an average daily population from June through August estimated to be approximately 200,000 to 225,000 (a total of 4.2 million in 2000). Six municipalities are located within the County: Duck, Kill Devil Hills, Kitty Hawk, Manteo, Nags Head and Southern Shores. The Seashore is a major tourist destination, with approximately 2.2 million visitors per year. The County’s economic health is heavily dependent on the revenues from tourism. For example, for fiscal year 2005¬2006, the County’s revenues related to tourism were near $340 million.5 Recreational access to the Seashore beaches via ORVs is an essential component of the tourist-based economy.

Hyde County, North Carolina is located in northeastern North Carolina. Hyde County is one of North Carolina’s largest counties by acreage but has fewer than 5,500 residents. County attractions include the Ocracoke Island portion of Cape Hatteras National Seashore—a tourist Mecca accessible only by air or water. Mainland residents make their living farming or commercial fishing while Ocracokians depend heavily on the tourist industry. A large percentage of the tourism revenue in Hyde County is related to Ocracoke Island.

BACKGROUND
The piping plover (Charadrius melodus) is a small, sand-colored North American shore bird with orange legs and two dark bands across its neck and forehead. Plovers breed in three discrete areas of North America: the Northern Great Plains, the Great Lakes, and the Atlantic Coast. Piping plovers from all three breeding populations winter along Atlantic Coast from North Carolina south, along the Gulf Coast, and also in the Caribbean. The highest concentration of wintering plovers is found on the Gulf Coast beaches of Texas, Louisiana, and Florida.
In 1985, the FWS designated the Great Lakes population of the piping plover as endangered and the Atlantic Coast and Great Plains populations as threatened. See 50 Fed. Reg. 50,720 (Oct. 4, 2001). The FWS also considers piping plovers threatened within their wintering range. In 1996, the FWS was sued by Defenders of Wildlife for the agency’s failure to designate "critical habitat" for the Great Lakes population. A second suit related to the Great Plains population was filed in 1997. In 2000, the FWS settled the case with Defenders. The consent decree ordered the following: "critical habitat designation for the Great Lakes piping plover shall be completed by April 30, 2001, and the final rule for the designation of critical habitat for the Northern Great Plains piping plover shall be completed by March 15, 2002." While not ordered to do so, the FWS decided to also designate critical habitat for wintering populations, claiming that it could not distinguish between the wintering habitat of the two populations.
On July 10, 2001, the FWS published its final rule for designating critical habitat for the wintering populations. 66 Fed. Reg. 36038. CHAPA fought the designation on many of the same grounds as it does today. See CHAPA v. U.S. Dep’t of the Interior, 344 F.Supp. 2d 108

(D.D.C. 2004). The four critical habitat units in question here were remanded back to the FWS. The agency responded over the last few years with a series of proposed rules, draft economic analyses, and environmental assessments which eventually led to the current Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover ("Final Rule") published on October 21, 2008 (73 Fed. Reg. 62816). This designation affects more than 2,043 acres of North Carolina shoreline; no significant changes were made to the proposed rule in spite of the thousands of comments received.6

I. ENDANGERED SPECIES ACT CLAIMS

Pursuant to section 4 of the ESA, the FWS may designate specific geographical areas as "critical habitat" concurrently with the listing of a species. Critical habitat is defined as those "specific areas within the geographical areas occupied by the species, at the time it is listed .. . on which are found those physical or biological features [that are] (I) essential to the conservation of the species and (II) which may require special management considerations or 6 CHAPA, Dare County, and Hyde County have been actively involved in the process. For example, on July 30, 2007 and on June 16,2008, the organization provided the FWS with detailed comments on the critical habitat designation for North Carolina Units 1, 2, 4, and 5. We incorporate our prior comments by reference.
protection. . . ." 16 U.S.C. § 1532(5)(A)(i). In addition, the FWS may designate, "specific areas outside of the geographical area occupied by the species at the time it is listed .. . upon a determination by the Secretary that such areas are essential for the conservation of the species." IcL at § 1532(5)(A)(ii).
However, unlike the decision to list a species, the FWS must consider economics in the critical habitat designation process. Pursuant to section 4, the FWS has a statutory obligation to designate critical habitat on the basis of the "best scientific data available .. . after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." IdL at § 1533(b)(2). The Secretary may exclude any area from critical habitat "if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as critical habitat." Id. The critical habitat regulations plainly require that the FWS focus on the "biological or physical constituent elements within the defined area" to be designated that are "essential to the conservation of the species" and that "are known to require special management considerations or protection. . .." See 50 C.F.R. § 17.94(c).

A. THE FWS SHOULD HAVE EXCLUDED CAPE HATTERAS NATIONAL SEASHORE AND PEA ISLAND NATIONAL WILDLIFE REFUGE FROM CRITICAL HABITAT DESIGNATION BECAUSE THE BENEFITS OF EXCLUSION OUTWEIGHED THE BENEFITS OF DESIGNATION.

In the October 21 Final Rule, the FWS relies heavily on Ctr. for Biological Diversity v. Norton ("CBD"), 240 F. Supp 2d 1090 (D. Ariz. 2003), in concluding that "if a habitat is already under some sort of management for its conservation, that particular habitat required special management considerations or protection and, therefore, meets the definition of critical habitat." Final Rule at 62817. That basis is not supportable under FWS policy and is contradicted by other case law. Rather, the FWS should have excluded the Seashore and Pea Island from critical habitat designation under ESA section 4(b)(2) because both areas satisfy the requirements for a non-economic exclusion. Section 4(b)(2) grants the Secretary authority to "exclude any area from critical habitat if he determines that benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." 16 U.S.C. § 1553(b)(2). The Secretary cannot exclude an area under section 4(b)(2) if "failure to designate will result in the extinction of the species concerned." IcL

The FWS is not required to calculate economic costs and benefits when evaluating the benefits of exclusion and critical designation based on non-economic factors. Indeed, the decision of Home Builders Assn of N. Cal. v. U.S. Fish and Wildlife Service (Home Builders II), No. CIV. S-05-0629, 2007 WL 201248, at *4 (E.D. Cal. Jan. 24, 2007) provides strong support for excluding the units from designation. Under the Home Builders II case, the FWS should have evaluated whether the alternative land management plan serving as a basis for a non¬economic exclusion "adequately incorporate^] the ESA’s recovery goals." Id The FWS’s approach to analyzing exclusions based on existing management plans should have involved weighing the benefits of designation, including increased public awareness and a section 7 consultation, against the benefits of exclusion, including the preservation of the FWS’s current and future partnerships in conservation. Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 70 Fed. Reg. 46,924, 46,947-48 (Aug.l 1, 2005). The court in Home Builders II upheld this balancing approach as reasonable. 2007 WL 201248 at *4.
Both Home Builders courts upheld the FWS’s exclusion of Carrizo Plain National Monument ("Carrizo Plain") based on an existing management plan. See Home Builders I at *29-*30; see also Home Builders II at *4. Carrizo Plain is an area cooperatively managed by the BLM, the FWS, and the California Department of Fish and Game. Clarification of the Economic and Non-Economic Exclusions, 72 Fed. Reg. at 30,290. The FWS excluded Carrizo Plain based on a draft 2005 management plan that was rooted in long-term conservation and recovery goals for listed plants and animals. Id The plan had six goals: (1) to improve and sustain listed populations to meet recovery goals; (2) to take avoidance measures; (3) to survey sensitive resources before conducting activities; (4) to avoid areas supporting listed species to the greatest extent possible; (5) to require the presence of personnel knowledgeable about sensitive resources during activities; and (6) to compensate for adverse effects. Id Based on the draft plan, the FWS determined that critical habitat designation for Carrizo Plain "would provide little gain in the way of increased recognition for special habitat values on lands" because the land is already "expressly managed to protect and enhance those values." Id.
Much like Carrizo Plain, the Seashore is governed by an existing management plan issued by the NPS. See Finding of No Significant Impact/Interim Protected Species Management Strategy ("Interim Plan")(July 2007). Indeed, the Seashore’s own Superintendent Mike Murray requested exclusion, detailing the specific measures that benefit the wintering plover population (year-round closures, monitoring, information generation for the public, and so forth).

The Interim Plan provides protections for both wintering and breeding piping plovers. For example, the Interim Plan allows for wintering closures "from September 15 to late March to close suitable interior habitats at Bodie Island Spit, Cape Point, Hatteras Spit, and South Ocracoke" to protect roosting and foraging habitat for wintering birds. Decl. of Michael B. Murray at 18, Defenders of Wildlife v. Nat’l Park Serv., No. 2:0-7-CV-45-BO (E.D.N.C. April 30, 2008). The Interim Plan also provides an ORV-free zone in the "ocean backshore" between March 15 and November 30. Consent Decree at 11. Furthermore, the Interim Plan provides for winter habitat monitoring of piping plovers. Interim Plan at 7. In addition, the Interim Plan provides protections for breeding piping plovers, including monitoring during the breeding season, Murray Decl. at 1[12, implementing closures when nesting behavior is observed, Interim Plan at 5, and creating a 1,000 meter ORV buffer for unfledged chicks that will be increased upon sign of disturbance, Consent Decree at 7-9. The Interim Plan also allows for education of NPS field staff and of visitors regarding the value of wildlife and protective species management. Interim Plan at 9, 10, 15. Finally, the Interim Plan sets performance measures based on the 2007 Amended Biological Opinion to track the piping plovers’ recovery. Interim Plan at 14.
Further, the interim nature of the Plan should not have prevented the FWS from relying on it to support a decision not to designate. The NPS adopted the Interim Plan in July 2007 after an exhaustive process that included notice, extensive public comment and seven information sessions in October, 2005, followed by public meetings in November, 2005, in North Carolina and Washington, D.C. The Interim Plan provides a detailed analysis of various alternatives with the NPS’s rationale for the selected alternative and the basis for rejecting other alternatives. The NPS conducted extensive Endangered Species Act section 7 consultation with the FWS which resulted in an initial and amended Biological Opinion with terms and conditions that the NPS has been implementing and will continue to do so until a final ORV plan is adopted. Indeed, the Interim Plan here is at least as defensible as the draft BLM plan for the Carrizo Plain National Monument that the Home Builders court found was sufficient to uphold the FWS’s exclusion decision where the FWS did not merely defer to BLM’s authority; "instead it incorporated the nature of oversight by the BLM into its weighing of the benefits inclusion versus exclusion .. .." Home Builders I at *30.

In general, the FWS recognizes that the benefits of designation are limited when an existing management plan is already in place. Clarification of the Economic and Non-Economic Exclusions, 72 Fed. Reg. at 30,281-83. For example, if a management plan is not in place for an area, critical habitat designation can serve to inform local governments, state agencies, and Federal agencies of the benefits of protection. Id. at 30,281. However, when a management plan is in place for an area, the relevant agency is already aware of the value of protecting the habitat. Id. In the case of Carrizo Plain, the FWS determined the educational benefit derived from critical habitat designation would be limited because the process of developing the management plan "clearly and effectively communicated" to Federal, state, and local agencies, members of the public, and other interested organizations the value of protecting the lands. Id. at 30,291. The FWS should have reached the same conclusion here because the Interim Plan has already communicated to the NPS and the local community the value of protecting the Seashore. Furthermore, the Interim Plan already provides specific educational opportunities aimed at increasing public awareness about the value of protected species management. Interim Plan at 10, 15. Therefore, no additional educational benefit of critical habitat designation is gained in the case of the Seashore.

Another general advantage of the Interim Plan is that it provides more long-term benefits than provided under section 7 consultation. The FWS recognizes that the benefits from a section 7 consultation are limited when there is an existing management plan. Id at 30,282. The agency acknowledges that conservation achieved through habitat management plans "is typically greater than would be achieved through multiple site-by-site project-by-project, section 7 consultations involving consideration of critical habitat" because management plans require committed resources to protect the habitat for listed or sensitive species. Id. Section 7 consultations, however, "only commit Federal agencies to prevent adverse modification to critical habitat caused by a particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the project." Id In the case of Carrizo Plain, the FWS noted that critical habitat designation may provide a different level of protection than what would be provided to a listed species alone. Id at 30,291. The FWS found, however, that the management plan provided more benefits than consultation because a management plan "affirmatively provide[s] a conservation benefit" while consultation merely limits adverse effects. Id The Interim Plan, like the Carrizo Plain plan, has affirmatively provided conservation benefits to both wintering and breeding piping plovers during the two years it has been implemented and will continue to provide benefit as long as the plan is in place. Furthermore, the NPS has already committed significant resources to implement monitoring and protective measures for the piping plover. Murray Decl. at f 15. For example, under the Interim Plan, the NPS implemented 331 management actions in 2006 and 389 management actions in 2007. Id at 1[16. Therefore, a section 7 consultation would provide little benefit to the Seashore.

Further, the FWS has found that when an existing management plan is in place, the costs of designation outweigh the benefits of designation. For example, the agency recognizes that critical habitat designation requires additional regulatory review that may "undermine conservation efforts and partnerships designed to proactively protect species to ensure that listing under the Act will not be necessary." 72 Fed. Reg. at 30,283. The FWS acknowledges that this regulatory burden coulddiscourage "continued participation in plans targeting listed species’ conservation." Id Moreover, the FWS recognizes that critical habitat designation hinders its ability to establish new partnerships with "[s]tates, counties, local jurisdictions, conservation organizations, and private landowners which together can implement conservation actions that [the FWS] would be unable to accomplish otherwise." Id.

In the case of Carrizo Plain, the FWS noted that by developing the management plan, BLM had already demonstrated a commitment to conserving and recovering the listed species. Id. at 30,291. Furthermore, the FWS concluded that excluding Carrizo Plain would preserve the FWS’s partnership with BLM. Id. Therefore, the FWS determined that the benefits of excluding Carrizo Plain outweighed the limited benefits of critical habitat designation. Id. As with Carrizo Plain, the Seashore’s Interim Plan was developed to achieve performance measures that work toward recovery goals. See Interim Plan at 13-14. Thus,’ excluding the Seashore from critical habitat designation would have preserved, rather than undermined, the existing relationship between Federal and local entities necessary to promote cooperative conservation of the Seashore as well as the FWS’s ability to partner with local jurisdictions and community stakeholders in the future. Therefore, designating the Seashore as critical habitat not only provides less benefit than exclusion, but will also undermine the benefits already provided by the Interim Plan.
Finally, excluding the Seashore from critical habitat designation would not have resulted in the extinction of piping plovers. The FWS recognizes that the "jeopardy standard of section 7, and routine implementation of habitat conservation through the section 7 process .. . provide assurances that the species will not go extinct" even if the species habitat is not designated critical. Clarification of the Economic and Non-Economic Exclusions, 72 Fed. Reg. at 30,291. This conclusion should have been applied here. The fact that piping plovers are a listed species triggers a section 7 consultation even without critical habitat designation. This consultation will prevent piping plovers from becoming extinct. Most importantly, the Interim Plan "is not likely to result in jeopardy to the species or destruction or adverse modification of designated or proposed critical habitat." Interim Plan at 26.

Pea Island should have been excluded for many of the same reasons the FWS used to exclude Kern. Like Kern, Pea Island is already publicly owned and managed to value its natural resources. See Pea Island CCP at 55-56, 58. The Pea Island CCP specifically aims to protect nesting and wintering piping plovers by conducting monitoring, closures and other protection activities. Id. at 68. The Pea Island CCP also includes specific opportunities to educate the public about piping plovers and their habitat. IcL at 52. Therefore, critical habitat designation of Pea Island will yield little in the way of management emphasis and educational benefit. Similarly, the benefit from a section 7 consultation is likely to be minimal. Like the Kern CCP, implementation of the Pea Island CCP will require section 7 consultations because Pea Island contains many listed species, including piping plovers. IcL at 13. Designating Pea Island as critical habitat created, however, a significant regulatory burden that will likely divert funding and resources from the Refuge’s protection activities for the piping plovers provided in the Pea Island CCP. Therefore, the FWS should have excluded Pea Island from critical habitat designation because the benefits of exclusion outweigh the benefits of designation.
B. THE FWS SHOULD HAVE EXCLUDED CAPE HATTERAS NATIONAL SEASHORE AND PEA ISLAND NATIONAL WILDLIFE REFUGE FROM CRITICAL HABITAT DESIGNATION BECAUSE THE INTERIM PLAN MEETS THE FWS’S EXCLUSION REQUIREMENTS.

Apart from the section 4(b)(2) balancing criteria discussed above, the FWS should have excluded the Seashore and Pea Island National Wildlife Refuge from critical habitat designation because the Interim Plan and Pea Island CCP meet the FWS’s specific exclusion requirements. To determine whether a management plan is adequate for purposes of exclusion from critical habitat designation the FWS considers "whether the plan, as a whole will provide the same level of protection that designation of critical habitat would provide." Amended Designation of Critical Habitat for the Winter Population of Piping Plover, 71 Fed. Reg. 33,703, 33,712 (June 12, 2006). In making this determination, the agency examines "whether the plan provides management, protection, or enhancement of the [primary constituent elements] that is at least equivalent to that provided by a critical habitat designation, and whether there is a reasonable expectation that the management, protection, or enhancement actions will continue into the foreseeable future." IdL

The FWS considers a current plan to provide adequate management or protection if it meets three criteria:

(1) The plan is complete and provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species’ population, or the enhancement or restoration of its habitat within the area covered by the plan);

(2) the plan provides assurances that the conservation management strategies and actions will be implemented (i.e., those responsible for implementing the plan are capable of accomplishing the objectives, and have an implementation schedule or adequate funding for implementing the management plan); and

(3) the plan provides assurances that the conservation strategies and measures will be effective (i.e., it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan’s goals and objectives).
Amended Designation of Critical Habitat for the Winter Population of Piping Plover, 71 Fed. Reg. 33,703, 33,712-13 (June 12, 2006)

As we noted above, the Interim Plan and the Pea Island CCP satisfy all three criteria. First, the plans are completed and implemented. Second, the Plans provide assurances that the conservation management strategies will be implemented to accomplish the objectives. For example, the Interim Plan requires the NPS to take 22 actions, provides performance measures to track success, and allocates the appropriate time and resources necessary to implement the Interim Plan. See Interim Plan at 4-10, 13-14. The Pea Island CCP specifically outlines the staff and activities needed to implement the 35 strategies identified in the plan. See Pea Island CCP at 79-83. Third, the Plans’ performance measures provide assurances necessary to track and report progress. Further, the FWS’s criteria do not prevent the agency from relying on an interim plan to support its exclusion action. As discussed above, the Interim Plan was adopted after an extensive public process and was the subject of ESA section 7 consultation and FWS Biological Opinions. Therefore, the FWS should have excluded the Seashore and Pea Island from critical habitat designation because the Plans meet the FWS’s requirements for exclusion based on an existing enforceable management plan.
The FWS’s reliance on CBD, supra, was improper and therefore CBD’s rationale should not have applied in this instance. Instead, the agency should have used the three-criteria approach articulated in the 2006 proposed rule. First, the court’s opinion in CBD is a reaction to the extreme set of facts surrounding the case. In CBD, the FWS disregarded numerous court orders in an attempt to delay critical habitat designation. 240 F. Supp 2d at 1090-94. Despite significant delays, the agency excluded in the final rule nearly 70 percent of the critical habitat considered in the proposed rule. Id at 1094. Furthermore, the FWS’s exclusions were based on incomplete Tribal management plans and Forest Service plans that had been the subject of numerous cases previously before the District Court of Arizona. Id at 1094-96. In these previous cases the District Court of Arizona found that the Forest Service attempted to thwart the listing process, used "inappropriate procedures" to delay consultations, and created management plans based on a legally insufficient biological opinion. Id In fact, the CBD court found the Forest Service’s commitment to creating plans to protect the spotted owl "inherently suspect." Id. at 1103. Most importantly, the Forest Service plans at issue in CBD, while final, had not been implemented at all or had been implemented improperly. Id at 1096. The CBD court also noted that the FWS knew that the Forest Service plan was not properly implemented eight months before publishing the final rule. Id at 1104-05.
The facts surrounding the designation of critical habitat for wintering piping plovers are distinguishable from those in CBD. Most importantly, the exclusion of the Seashore would still provide significant habitat protection for piping plovers though the Interim Plan. Also, the Interim Plan has been successfully implemented for over two years, unlike the plan in CBD. See Murray Deck at fl6. Similarly, Pea Island National Wildlife Refuge completed its CCP in September 2006 and has continued to implement the plan since that date. See generally Pea Island CCP.

Second, the plan at issue in CBD is significantly different from the Interim Plan in place for the Seashore and the CCP in place at Pea Island. In CBD, the court found that the Forest Service plans, which were the sole basis for excluding lands in Arizona and New Mexico, were inadequate and legally insufficient. CBD, 240 F. Supp 2d at 1103. In 2002, the Arizona District Court had found that the Forest Service had not properly implemented its grazing standard since 1996. Id at 1104. The CBD court noted that grazing poses a primary threat to the Mexican spotted owl and its habitat. Id at 1103-04. Nonetheless, the FWS used these inadequate plans to justify exclusion from critical habitat designation even though the FWS had notice that the plans had not been implemented. Id. at 1103-4. CBD found the FWS’s decision to exclude lands based on inadequate forest plans "fundamentally flawed." Id. at 1105.

Unlike the plan in CBD, the Interim Plan is both adequate and legally sufficient. Most importantly, the Interim Plan and the Pea Island CCP satisfy all three criteria used to exclude areas from critical habitat designation. The FWS has consistently followed this three-criteria approach from 2000 to 2006, well beyond the 2003 CBD decision. Therefore, the FWS’s reliance on CBD in the May 15, 2008 Federal Register notice appears to be an anomaly. Because the facts and circumstances surrounding designation of critical habitat for piping plovers greatly differ from those in CBD, the FWS should have applied the three-criteria approach in this instance to exclude the Seashore and Pea Island from critical habitat designation.

C. THE ENVIRONMENTAL ASSESSMENT MAKES CLEAR THAT THE COSTS OF DESIGNATING CRITICAL HABITAT AT THE SEASHORE AND PEA ISLAND OUTWEIGH THE BENEFITS. The Environmental Assessment ("EA") supports not designating critical habitat. Notwithstanding the fact that the EA uses discredited science, discussed below, it notes that "Neither of the alternatives will impact the physical environment because critical habitat designation does not result in any alteration of the environment." EA at 15. In one sentence, the FWS tellingly admits that there will be no change in benefits from the designation. On the other hand, the Final Economic Analysis ("FEA") shows impacts to be huge: lost trip expenditures, alone, are estimated to be up to $20.2 million. FEA at ES-1. CHAPA and the Counties submit that even these figures are understated. In short, mathematically, the cost-benefit equation has decidedly tipped in favor of no action.

To the degree that critical habitat designation could also lead to use restrictions, including ORV bans, local business owners will suffer economic harm. Such negative impacts include: decreased sales and loss of tourism revenue, layoffs of employees, loss of rental income to landlords, loss of charitable income generated by sport fishing tournaments that depend upon beach access, decreased fishing license revenue formerly sent to the North Carolina Wildlife Resources Commission, and decreased construction. The average service worker and working-class family—making up the region’s volunteer fire fighters, churchgoers, and social organization members—will likely be especially hard hit. If this population emigrates, the area will suffer a significant cultural loss. Dare and Hyde County might need to reduce funding for priorities including education, environmental protection, social services, and emergency management.

The economic analysis performed by the FWS’s contractor, EEc, concluded that the impacts would range from $0 to $17.1 million in lost consumer surplus and $0 to $29.1 million in lost trip expenditures. FEA at ES-3. Such a large uncertainty reflects in part the economic analysis’s over-reliance on the discredited Vogelsong study and the assumption that the possible closures and restrictions on designated units will not exceed closures and restrictions under the Interim Plan.

The improper reliance on Vogelsong assured that the FEA would not be based on the "best available science." The Final Rule and economic analysis point out the weaknesses of the Vogelsong visitor study. The peer review specifically noted that the Vogelsong report "does not provide a detailed description of the sampling approach and estimation methodology. Lacking this, the analysis assumes that a probability sample was not used." FEA at 2-14. Vogelsong did not "appear to provide a sound scientific basis for estimating ORV use" at the Seashore. IcL The Final Rule also notes the peer-review finding that there was "insufficient detail provided on the sampling method and analysis to .. . reliably determine the extent to which [the Seashore] is used by ORVs"; one peer reviewer noted that "if the Vogelsong data are to be used to estimate annual ORV use and the economic impact of ORV use at [the Seashore] .. . a matrix of estimates of total park visitation and ORV use should be presented to reflect the imprecise nature of these estimates." Final Rule at 62824. Despite these and other comments critical of the foundation of the economic analysis, the Final Rule concludes that the FWS "believes that the results contained in the Vogelsong study represent the best available information to support an understanding of the potential economic impacts . .. and that the manner in which the information from this study are applied (i.e., use of ranges) represents a reasonable application .. . consistent with the concerns raised in the peer review process." Id. at 62824. The FEA also notes that "While probability sampling is clearly preferable for this type of study, this analysis expects that the Vogelsong study is sufficiently representative for use in our analysis." FEA at 2-14.
This bad science did not have to be used. Over the last two years, CHAPA has offered extensive critique of the problems with the Vogelsong report. The FWS even had an alternative report by William Neal that also examined visitor usage. Though both the Neal and Vogelsong studies were considered flawed by peer reviewers, the FWS summarily dismissed Neal and chose to go with Vogelsong. Final Rule at 62824. With no explanation as to why Vogelsong’s work is superior to Neal’s, it cannot be said that Vogelsong represents the best available science.

Furthermore, the final economic analysis does not meet Judge Lamberth’s concerns. In CHAPA, he criticized the earlier economic analysis for not considering all the potential costs—it did not discuss "the effects of the designation on everyone who might be affected." CHAPA, 344 F.Supp.2d at 132. IEc still did not gather "hard" data on the ground by contacting local businesses and entities like the Outer Banks Visitors Bureau, and thus failed to provide the "comprehensive" study Judge Lamberth required. See Final Rule at 62824 ("A survey regarding the specific potential effects of management closures on individual businesses is beyond the scope of this analysis").
In contrast, comments submitted by CHAPA and by numerous individuals and local businesses made clear how dependent Outer Banks municipalities are on tourism; the impacts of designation clearly will not be zero. These individuals and communities are concerned that the additional scrutiny from plover critical habitat designation—and attendant closures—will fundamentally affect access to the Seashore’s beaches. User groups, as well as many businesses, will suffer if the designation leads to substantial limits or an outright ban on ORV vehicle use within these areas. Ultimately, this could have a devastating effect on the entire coastal economy, which has a tax base that is directly affected by access to Outer Bank beaches. To say that the FWS’s action will have "no impact on the economic vitality of existing businesses," EA at 18—and to base that statement on the flawed Vogelsong study and lack of local impacts data—is simply unsupportable.

E. THE FWS’S ANALYSIS OF PRIMARY CONSTITUENT ELEMENTS FAILS JUDGE LAMBERTH’S TEST, AS WELL. CHAPA has previously submitted comments faulting the FWS for not directly addressing Judge Lamberth’s statement that "the crystal clear statutory requirement that [primary constituent elements, or "PCEs"] must be those that may require special management considerations or
protection . . . Rather than discuss how each identified PCE would need management or protection, the [FWS] lists activities that once resulted in consultations and makes a conclusory statement that dredging or shoreline management could result in permanent habitat loss. This does not meet the [FWS’s] burden." CHAPA, 344 F.Supp.2d at 124. The Final Rule is still filled with conclusory statements that certain activities, usually ORV use, will require special management considerations. The Final Rule attempted to add analysis but in reality did little more than list activities that threaten critical habitat. Such global issue identification is not enough; Lamberth wanted more detailed analysis why and how management procedures would lessen harm from these activities.
II. NEPA CLAIMS: THE FWS HAS STILL FAILED TO COMPLY WITH NEPA.
Courts have ruled that Federal agencies have a duty under NEPA to use the "Hard Look Doctrine" in making decisions that have environmental consequences. See Marsh v. Oregon Natural Res. Council 490 U.S. 360, 371 (1989) ("NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct"). As a result, NEPA documents are judicially reviewed for completeness of information and detail, among other things. To make a sound judgment, an agency must have and use the best information possible.

Judge Lamberth severely criticized FWS for not complying with NEPA, reminding the agency that "partial fulfillment of NEPA’s requirements is not enough," and that NEPA calls for compliance "to the fullest extent possible." CHAPA, 344 F.Supp.2d at 135. Though FWS attempted to comply by means of the current EA, that effort did not rise to the level required by the Court. We have already given specifics on how the economic analysis, for example, did not pass muster.

The EA also lacks sufficient scientific information regarding the piping plover and its habitat. Here, the FWS must apply credible science to the piping plover wintering population on the Outer Banks and its relation to piping plover populations throughout the nation. Yet the EA provides no analysis or discussion of piping plover population changes since the bird was first listed as endangered in the late 1980s. The basis for designation should have addressed the following questions: What are the population trends for the piping plover? What is the scientific basis for determining that the proposed critical habitat will contribute to that species recovery? These issues were addressed by biologist Lee Walton in CHAPA’s June 2008 comments, yet were not addressed by the EA.

Indeed, the EA contains virtually no science. CHAPA acknowledges that an EA is only supposed to "briefly provide sufficient evidence" to determine if an EIS is required, and that 7 See, e.g., Final Rule at 62832 ("As a result, the primary threat to the wintering piping plover and its habitat within this unit is disturbance to and degradation of foraging and roosting areas by ORVs and by people and their pets. Therefore, sandy beach and mud and sand flat habitats in this unit may require special management considerations or protection, as discussed in "Special Management Considerations or Protections" above"). this data will help delineate alternatives and mitigation measures. Council on Environmental Quality, NEPA’s Forty Most Asked Questions 36(a). In actuality, the document is a regulatory impact analysis. The only reference to science is to a Cornell University online database which requires payment for access—not a suitable reference for an open public review process. Furthermore, the EA should have at least indicated that the four critical habitat sites function currently as healthy and sustainable ecosystems as indicated by the diverse number of interactive species (350+). These four areas are currently successfully managed and cared for by government agencies, non-governmental organizations, and the concerned public.
III. APA CLAIMS: THE FWS HAS BEEN ARBITRARY AND CAPRICIOUS.

Based on the information presented above, the inescapable conclusion is that the FWS has been arbitrary and capricious as reviewed under the APA. The FWS failed to exclude these four units from critical habitat designation when it had every reason to do so. While agencies are given much latitude in their actions, they must still present a "reasoned analysis" and make a "rational connection between the facts found and the choice made." Motor Veh. Mfrs. Ass’n v. State Farm Ins., 463 U.S. 29, 52, 57 (1983). Here, the FWS final designation fails this exacting standard.