[Federal Register Volume 71, Number 21 (Wednesday, February 1, 2006)]
[Proposed Rules]
[Pages 5516-5546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-688]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Critical Habitat for the 
Alabama Beach Mouse; Proposed Rule

  Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU46


Endangered and Threatened Wildlife and Plants; Critical Habitat 
for the Alabama Beach Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise critical habitat for the endangered Alabama beach mouse 
(Peromyscus polionotus ammobates) pursuant to the Endangered Species 
Act of 1973, as amended (Act). In total, approximately 1,298 acres (ac) 
(525 hectares (ha)) fall within the boundaries of the proposed critical 
habitat designation. The proposed critical habitat is located in 
Baldwin County, Alabama.

DATES: We will accept comments from all interested parties until April 
3, 2006. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by March 20, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of the following methods:
    1. You may submit written comments and information to the Acting 
Field Supervisor, U.S. Fish and Wildlife Service, Daphne Fish and 
Wildlife Office, 1208-B Main Street, Daphne, AL 36526.
    2. You may hand-deliver written comments to our office, at the 
above address.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. Please see ``Public Comments Solicited'' 
under SUPPLEMENTARY INFORMATION for file format and other information 
about electronic filing.
    4. You may fax your comments to 251-441-6222.
    5. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Daphne Fish and Wildlife Office at the above address.

FOR FURTHER INFORMATION CONTACT: Acting Field Supervisor, U.S. Fish and 
Wildlife Service, 1208-B Main Street, Daphne, AL 36526 (telephone 251-
441-5181, facsimile 251-441-6222) or visit our Web site at http://www.fws.gov/daphne/.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    Because we want any final action resulting from this proposal to be 
as accurate and as effective as possible, we ask for comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species caused by designation;
    (2) Specific information on the amount and distribution of Alabama 
beach mouse (ABM) habitat, including areas occupied by the ABM at the 
time of listing and containing the features essential to the 
conservation of the species, and areas not occupied at the time of 
listing that are essential to the conservation of the species;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments; and
    (6) Information regarding the benefits of exclusion or inclusion of 
the 337 acres (136 ha) within the proposed critical habitat revision 
that are owned by the State near the Fort Morgan Historic Site in Unit 
1, but that are managed by the Service through a cooperative management 
agreement with the Alabama Historical Commission.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to [email protected] 
in ASCII file format and avoid the use of special characters or any 
form of encryption. Please also include ``Attn: critical habitat 
[AU46]'' in your e-mail subject header and your name and return address 
in the body of your message. If you do not receive a confirmation from 
the system that we have received your Internet message, contact us 
directly by calling our Daphne Fish and Wildlife Office at phone number 
251-441-5181. Please note that the Internet address 
[email protected] will be closed out at the termination of the 
public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

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

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

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specific actions to restore or improve habitat.
    Currently, only 470 species, or 37 percent of the 1,264 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,264 
listed species through conservation mechanisms such as listing, section 
7 consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004). 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. Rather, it relies on the guidance issued by the 
Director in response to the Gifford Pinchot decision (see ``Adverse 
Modification Standard'' discussion below). The Service will carefully 
manage future consultations that analyze impacts to designated critical 
habitat, particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These 
costs, which are not required for many other conservation actions, 
directly reduce the funds available for direct and tangible 
conservation actions.

Background

    We intend to discuss only those topics directly relevant to the 
critical habitat revision in this proposed rule. For more information 
on the Alabama beach mouse, refer to the final listing rule published 
in the Federal Register on June 6, 1985 (50 FR 23872).
    The Alabama beach mouse (ABM) is one of five subspecies of the 
oldfield mouse that inhabit coastal dune communities along the northern 
coast of the Gulf of Mexico. It is a nocturnal rodent that burrows in 
primary, secondary, and scrub dunes, and feeds on a variety of dune 
plants and insects (Rave and Holler 1992; Moyers 1996; Sneckenberger 
2001).
    The ABM was historically restricted to approximately 33.5 miles of 
coastline in Baldwin County, Alabama, including the Fort Morgan 
Peninsula, Gulf Shores and Orange Beach, and Ono Island (50 FR 23872; 
Holliman 1983; Meyers 1983; Holler and Rave 1991). At the time of 
listing, the ABM was thought to occupy 10.6 miles of this historic 
range (50 FR 23872), based on reports by Holliman (1983), who concluded 
that ABM were found only on 333 acres of habitat and had been 
extirpated from Ono Island, and contemporaneous research by Meyers 
(1983) and Dawson (1983). Approximately 1,034 acres, divided into three 
distinct zones that collectively represented the known range of the 
subspecies, were designated as critical habitat at the time of listing 
(50 FR 23872). This original critical habitat designation consisted 
almost entirely of primary and secondary dunes. Primary constituent 
elements (PCEs) were defined as dunes and interdunal areas, and 
associated grasses and shrubs that provide food and cover (50 FR 
23872). Presently, we estimate that approximately 2,600 acres of ABM 
habitat exist throughout the historic range (Service 2003).
    Coastal dune habitat along the Baldwin County, Alabama, coastline 
is generally categorized as primary dunes, secondary dunes, interdunal 
swales, and scrub dunes. Primary dunes consist of a continuous line of 
dunes immediately landward of the wet beach characterized by sea oats 
(Uniola paniculata) and other grasses such as bluestem (Schizachyrium 
maritimum) and seaside panicum (Panicum amarum). Secondary dunes are 
more sparsely vegetated rows of smaller sand dunes found landward of 
primary dunes, often containing such plants as woody goldenrod 
(Chrysoma

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pauciflosculosa) and false rosemary (Conradina canescens) in addition 
to primary dune plants described above. Interdunal swales and seasonal 
wetlands are sometimes associated with secondary dune systems. These 
areas are generally bare sand, but may contain low spots with large-
headed nutgrass (Juncus megacephalus) and yellow nutgrass (Cyperus 
esculentus). Scrub dunes, located landward of the secondary dunes, are 
higher-elevation interior habitats that are often dominated by scrub 
oaks (Quercus spp.) and yaupon holly (Ilex vomitoria). The highest 
scrub habitat, called escarpment, often reaches elevations of 30 feet 
(9 meters) or more (Baldwin County 2004) above sea level, and occurs 
along an east-west line throughout the middle part of the Fort Morgan 
Peninsula. The transition from scrub habitat to maritime forest, which 
is characterized by large trees (pines and oaks), thick leaf litter, 
and dense understory vegetation, frequently serves to delineate the 
landward extent of suitable beach mouse habitat.
    Since the ABM was listed, continued research has refined previous 
knowledge of its habitat requirements, as well as factors influencing 
its use of habitat. The findings most pertinent to this revision of 
critical habitat involve the role of scrub dune habitat in the 
population biology of the subspecies. Contrary to the early belief that 
beach mice were restricted to (Howell 1909; 1921; Ivey 1949), or 
preferred, the frontal dunes (Blair 1951; Pournelle and Barrington 
1953; Bowen 1968), more recent research has shown that scrub habitat 
serves an invaluable role in the persistence of ABM populations 
(Swilling et al. 1998; Sneckenberger 2001). ABM occupy scrub habitat on 
a permanent basis and, studies have found no detectable differences 
between scrub and frontal dunes in beach mouse body mass, home range 
size, dispersal, reproduction, survival, food quality, and burrow site 
availability (Swilling et al. 1998; Swilling 2000; Sneckenberger 2001). 
While seasonally abundant, the availability of food resources in the 
primary and secondary dunes fluctuates (Sneckenberger 2001). In 
contrast, the scrub habitat provides a more stable level of food 
resources. This becomes crucial when food is scarce or nonexistent in 
the primary and secondary dunes and suggests that access to scrub dune 
habitat, in addition to primary and secondary dune habitat, is 
essential to ABM.
    In addition to providing burrow sites, food resources, and cover, 
scrub dune habitat also serves as a high-elevation refuge during storm 
events and as a population source as the frontal and secondary dunes 
recover (Swilling et al. 1998; Sneckenberger 2001). Hurricanes can 
severely affect ABM, as tidal surge and wave action overwash habitat, 
leaving a flat sand surface denuded of vegetation and shearing or 
eroding primary dunes and occasionally forming new channels between the 
Gulf of Mexico and bays and lagoons, creating barriers to beach mouse 
migration (Johnson 1997; Swilling et al. 1998; Service 2004a). Sand is 
also deposited inland, completely or partially covering vegetation 
(Johnson 1997; Swilling et al. 1998; Service 2004a). Until frontal dune 
topography and vegetation redevelop, scrub habitat maintains beach mice 
populations and has the majority of food resources and potential burrow 
sites (Lynn 2000; Sneckenberger 2001). While storms temporarily reduce 
population densities (often severely) and impact dune habitat, this 
disturbance regime maintains open habitat and retards woody plant 
succession, yielding a habitat more suitable for beach mice than one 
lacking disturbance.
    The low-nutrient soil of the coastal dune ecosystem receives a 
pulse of nutrients from the deposition of vegetative debris along the 
coastline (Lomascolo and Aide 2001). Therefore, as the primary and 
secondary dunes recover, and food plants develop to take advantage of 
the newly available nutrients, beach mice readily recolonize this 
habitat. Habitat recovery times vary depending upon factors such as 
hurricane characteristics (i.e., severity, amount of associated rain, 
position of habitat relative to storm eye, storm speed), successional 
stage of habitat prior to hurricane, and habitat elevation, impact to 
habitat from hurricane clean-up efforts, amount of precipitation, and 
restorative actions post hurricane. Depending on these factors, 
recovery of habitat may take from 1 year to over 40 years (Johnson 
1997; Boyd et al. 2003; Traylor-Holzer et al. 2005).
    Local extinctions (and subsequent recolonizations) within 
fragmented populations are common events (Fahrig and Merriam 1992; 
Stacey and Taper 1992). Habitat fragmentation, identified in the 
original listing rule as a threat to ABM, continues to be the major 
threat to ABM conservation, especially when combined with the effects 
of hurricanes. ABM habitat has been fragmented by human development. 
Historically, habitats in lower elevations, where ABM were extirpated 
from hurricane-induced storm surge, were recolonized as population 
densities increase and dispersal occurs from adjacent populated areas. 
Despite local extirpations due to storm events or the harsh, stochastic 
nature of coastal ecosystems, beach mouse populations and genetic 
integrity (Wooten 1994) would naturally recover and persist provided 
that sufficient habitat was available for population expansion 
following ``bottleneck'' events. Functional pathways between scrub 
habitat and lower-elevation dunes more severely impacted by storm 
events, allowing for dispersal, foraging, and mate finding behavior, 
are therefore essential to the conservation of the species.
    Much of the original 33.5 miles of ABM habitat has been fragmented 
due to roads, buildings, parking lots, walls, bulkheads, and non-native 
landscaping, and functional beach mouse pathways between high-elevation 
scrub and frontal dunes are increasingly scarce. Rangewide (east-west) 
habitat continuity has likewise suffered as a result of human 
development activities. Because one hurricane could easily impact the 
entire range of the ABM, the conservation of remaining east-west and 
north-south habitat connections throughout the range of the ABM, 
allowing the naturally occurring cycle of local extirpations and 
subsequent recolonizations to continue, is of paramount conservation 
importance.

Previous Federal Actions

    For more information on previous Federal actions concerning the 
ABM, refer to the final listing rule published in the Federal Register 
on June 6, 1985 (50 FR 23872), or our 12-month petition finding 
published in the Federal Register on September 26, 2000 (65 FR 57800), 
in which we announced that revision of critical habitat for the 
Alabama, Choctawhatchee, and Perdido Key beach mice was warranted.
    Until now, work on the revision of critical habitat for the Alabama 
beach mouse and the other two beach mouse subspecies has been precluded 
due to other, higher priority listing and critical habitat actions. On 
June 17, 2003, a lawsuit was filed in the U.S. District Court for the 
Southern District of Alabama (The Sierra Club and the Center for 
Biological Diversity v. Norton: 1:03-CV-00377-CB), alleging that we 
violated the Act by failing to revise critical habitat, and that the 
revision was withheld or unreasonably delayed under the Administrative 
Procedure Act (5 U.S.C. 551 et seq.). In a December 2004 declaration 
filed with the Court, we stated that we would submit to the Federal 
Register a proposed rule revising ABM critical habitat by January 18, 
2006, and a final rule by January 15, 2007. A proposed rule revising 
critical habitat for the Choctawhatchee and

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Perdido Key beach mice was published in the Federal Register on 
December 15, 2005 (70 FR 74426).
    We briefed the ABM recovery team on our general plans to revise 
critical habitat for the ABM on May 16, 2005. On November 9, 2005, we 
briefed State and Federal agencies on the critical habitat process and 
our 2004 declaration and on November 10, 2005, we held a critical 
habitat informational meeting for the general public at the City of 
Gulf Shores auditorium in Gulf Shores, Alabama, to discuss the critical 
habitat process.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
and using the best scientific data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements (PCEs), as defined at 50 CFR 
424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species so 
require, we will not designate critical habitat in areas outside the 
geographic area occupied by the species at the time of listing. An area 
that is currently occupied by the species but was not known to be 
occupied at the time of listing will likely be essential to the 
conservation of the species and, therefore, included in the critical 
habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing rule for the species. Additional 
information sources include the recovery plan for the species, articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge. All information is used in accordance with the 
provisions of Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas that contain the physical and 
biological features essential to the conservation of the subspecies 
(see Primary Constituent Elements section). We have reviewed the 
overall approach to conservation of the subspecies undertaken by the 
local, State, and Federal agencies operating within the species' range 
since its listing, the original ABM recovery plan (Service 1987).
    In our development of the primary constituent elements (PCEs) and 
criteria for determining critical habitat (see Criteria section), we 
reviewed the available information pertaining to the historic and 
current distributions, life histories, habitats of, and threats to 
beach mice in general, and where possible, to the ABM in particular. We 
have also reviewed available information that pertains to the 
population biology and habitat requirements of the ABM or closely 
related subspecies, including data in reports submitted during section 
7 consultations, and as a requirement from section 10(a)(1)(B) 
incidental take permits or section 10(a)(1)(A) recovery permits; 
hurricane-induced storm surge inundation estimates from field data and 
models, research published in peer-reviewed articles and presented in 
academic theses and agency reports; Geographic Information System (GIS) 
coverages; and the ABM habitat map produced by Service in 2003. We have 
also reviewed our own site-specific

[[Page 5520]]

subspecies and habitat information, trapping data, recent biological 
surveys, and reports and communication with other qualified biologists 
or experts.
    We began our analysis by considering the historic habitat available 
to the subspecies. Early accounts of the ABM and the 1985 listing 
document indicate that the natural historic range of the species 
stretched from the tip of the Fort Morgan Peninsula (presently Fort 
Morgan State Historic Site) eastward to Perdido Pass in Baldwin County, 
Alabama (Howell 1909; Bowen 1968; 50 FR 23872; Holler and Rave 1991). 
The north-south extent of this historic range is uncertain. Early 
research and collection efforts focused on frontal dunes and, 
therefore, we were unaware of the extent of scrub habitat usage by the 
subspecies until recent studies became available. We now understand 
beach mice in higher-elevation habitat tend to survive hurricanes, and 
high-elevation scrub habitat serves as a refuge from storms for mice in 
frontal dunes (Swilling et al. 1998; Sneckenberger 2001; Service 
2004a). It is reasonable to assume that ABM, which evolved in a dynamic 
coastal environment driven in part by hurricane activity, have always 
utilized high-elevation scrub habitats for survival during and after 
major storm events.
    We next employed five steps to identify our proposed critical 
habitat units. We first considered our 2003 ABM habitat map, which is 
based on the best available trapping and habitat data, and utilized in 
permitting decisions, interagency consultation, and research studies 
involving the subspecies. This map contains all of those areas that 
were occupied at the time of listing and that have been found to be 
occupied since listing, that are still available to the ABM. Secondly, 
at those sites, we identified, in accordance with section 3(5)(A)(i) of 
the Act and regulations at 50 CFR 424.12, the physical and biological 
habitat features (also called primary constituent elements, or PCEs) 
(see PCE section) that are essential to the conservation of the 
species. We then determined the subset of the habitat identified in the 
ABM habitat map that contains those PCEs. These areas were then mapped 
using ArcMap 9, a GIS program developed by the Environmental Systems 
Research Institute, Inc. Our mapping process was based on the need to 
exclude areas that lack PCEs, while simultaneously accounting for the 
dynamic nature of coastal habitat. We mapped critical habitat units at 
each site based on the extent of habitat containing sufficient PCEs 
necessary to support biological functions of the ABM. We depicted the 
mapped shoreline according to the mean high water line (MHWL), although 
the land configurations of these coastal areas change dramatically 
through time. Landward boundaries of the units, which frequently 
consist of urban areas or maritime forest, are more stable and provide 
easily discernable landmarks when visiting a proposed critical habitat 
unit. In the fifth and final step, we identified any of the mapped 
areas that do not meet the definition of critical habitat under section 
3(5)(A) of the Act, and units that may be excluded based on section 
4(b)(2) of the Act (see the Application of Sections 3(5)(A) and 4(a)(3) 
and Exclusions Under Section 4(b)(2) of the Act, below, for a detailed 
description).
    Many areas within the broad historic range of the subspecies, once 
occupied by ABM, are no longer capable of supporting them because of 
conversion for human use or isolation due to human development patterns 
(Endangered Species Consulting Services 2002; Service 2003). Developed 
areas, including beachfront condominium complexes within the cities of 
Gulf Shores and Orange Beach, the entire length of Ono Island, and the 
footprints of existing developments throughout the Fort Morgan 
Peninsula, were eliminated from consideration for critical habitat.
    We eliminated from consideration those areas that have been 
impacted by development by consulting our 2003 ABM habitat map (Service 
2003), GIS coverages, and additional trapping data. While the quality 
of habitat ebbs and flows in response to impacts and hurricanes and 
tropical storms, the 2003 map, combined with trapping information and 
observations since 2003, represents our best estimate of habitat 
occupied by the ABM at the time of listing, and from the time of 
listing until present. The 2003 map includes all areas, according to 
trapping conducted or funded by both the Service and section 
10(A)(1)(a) recovery permit holders, presently occupied by the ABM. 
Through a careful analysis of habitat continuity, trapping data, and 
anthropogenic impacts, we determined which subset of this current 
habitat contains the PCEs (see Primary Constituent Elements section). 
This resulted in 2,360 ac (955 ha) of occupied habitat with features 
that we found to be essential to the conservation of the subspecies. 
For comparison, this includes almost all critical habitat originally 
designated at the time of listing, as well as scrub habitat now known 
to contain features that are essential to the ABM.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat determinations 
on the best scientific data available and to consider within areas 
occupied by the species at the time of listing those physical and 
biological features that are essential to the conservation of the 
species (PCEs), and that may require special management considerations 
or protection. These include, but are not limited to: Space for 
individual and population growth and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, and 
rearing (or development) of offspring; and habitats that are protected 
from disturbance or are representative of the historic geographical and 
ecological distributions of a species.
    The specific PCEs essential for the ABM are derived from its 
biological needs as described in the Background section of this 
proposal, and are set forth in additional detail provided below.

Space for Individual and Population Growth and Normal Behavior

    Long-term trapping data have shown that ABM densities are cyclic 
and fluctuate by magnitudes on a seasonal and annual basis (Swilling et 
al. 1998; Sneckenberger 2001; Rave and Holler 1992). These fluctuations 
can be a result of reproduction rates, food availability, habitat 
quality and quantity, catastrophic events, disease, and predation 
(Blair 1951; Bowen 1968; Smith 1971; Hill 1989; Rave and Holler 1992; 
Swilling et al. 1998; Swilling 2000; Sneckenberger 2001). Without 
suitable habitat sufficient in size to support the natural cyclic 
nature of beach mouse populations, subspecies are at risk from local 
extirpation and extinction, and may not attain the densities necessary 
to persist through storm events and seasonal fluctuations of resources. 
The conservation of multiple large, contiguous tracts of habitat is a 
key to the persistence of beach mice.
    A variety of habitat types is needed to conserve ABM populations 
due to the dynamic nature of the coastal environment. Large, contiguous 
habitat areas that contain an intact continuum of habitat from the 
primary dunes landward to high-elevation scrub dunes are perhaps the 
most important to the persistence of the ABM. Contiguous habitat allows 
for natural behavior such as dispersal and exploratory

[[Page 5521]]

movements, as well as gene flow to maintain genetic variability of the 
population.
    However, very few tracts with this structure currently exist. 
Because much of occupied ABM habitat has been fragmented by human 
development and is, therefore, neither large in size nor contiguous, 
the maintenance of multiple populations and habitat connectivity (see 
discussion below) is crucial. Local extinctions (and subsequent 
recolonizations) within fragmented populations are common events 
(Fahrig and Merriam 1992; Stacey and Taper 1992). Species that are 
protected across their ranges have lower probabilities of extinction 
(Soule and Wilcox 1980). The ABM is a narrowly endemic subspecies 
restricted to less than 34 miles (54 km) of coastline, and one major 
hurricane could easily affect the entire population. Impacts within 
individual hurricanes, however, can vary greatly in intensity, and wide 
fluctuations in storm surge and associated wave damage are possible 
depending on bathymetry (water depths), beach configuration, and 
variations in wind speed and waves within the storm. Protecting 
multiple populations that represent the natural range of the 
subspecies, therefore, would likely increase the chance that at least 
one population within the range of a subspecies will survive episodic 
storm events and persist while vegetation and dune structure recover. 
This theory has been supported by population viability models conducted 
on the subspecies (Oli et al. 2001; Traylor-Holzer 2005a, 2005b) and 
careful study of the closely related Perdido Key beach mouse (where a 
now potentially extirpated population was the source of the two 
remaining populations of the subspecies (Holler et al. 1989; Service 
2004b)).
    While maintaining multiple populations throughout the geographic 
range of each beach mouse subspecies provides protection from 
extinction (Oli et al. 2001), conservation of a subspecies necessitates 
protection of genetic variability throughout its range (Ehrlich 1988). 
Conservation of a species over a range of habitat types where it is 
known to occur reduces the chance of losing disjunct populations, which 
represent important conservation value for their adaptation to local 
environmental conditions and their genetic uniqueness (Fahrig and 
Merriam 1994). This includes ``peripheral'' populations (populations on 
the fringes of the natural range of the species/subspecies), which in 
many cases are thought to be highly desirable because of their distinct 
genetic characters or adaptations due to divergent natural selection 
(Lesica and Allendorf 1995). Preservation of natural populations 
throughout the range of each subspecies is therefore crucial, as the 
loss of a population of beach mice can result in a permanent loss of 
alleles (genes) (Wooten 1999). This genetic variability, once lost, 
cannot be regained through translocations or other efforts.

Protection From Hurricanes

    Hurricanes and tropical storms are a frequent occurrence along the 
Alabama coastline. Between 1899 and 2004, 15 storms of Category 1 or 
greater on the Saffir-Simpson Hurricane Scale have directly impacted 
ABM habitat (NOAA 1999; Service 2004a, 2005a). Hurricanes can impact 
beach mice either directly (e.g., drowning) or indirectly (e.g., loss 
of habitat). When Hurricane Ivan, a strong Category 3 hurricane, made 
landfall in Gulf Shores on September 16, 2004, it adversely impacted an 
estimated 90 to 95 percent of primary and secondary dune habitat 
throughout the range of the ABM (Service 2004a). A review of trapping 
data from various locations following Ivan indicated that mice may have 
been extirpated from these low-lying areas (Service 2004a). However, 
higher-elevation scrub habitat, while receiving damage from salt spray 
and wind (Boyd et al. 2003; Service 2004a), is often not inundated by 
hurricane-induced storm surge and associated battering waves. This has 
been observed both in recent storms (including Hurricanes Ivan and 
Katrina (2005)) and hurricane model runs (U.S. Army Corps of Engineers 
(ACOE) 2001; Service 2004a, 2004c, 2005a; ENSR Corporation (ENSR) 
2004).
    Following Hurricane Opal of 1995, Swilling et al. (1998) reported 
higher ABM densities in the scrub than the foredunes nearly one year 
after the storm. As vegetation began to recover, however, the primary 
and secondary dunes were reoccupied by ABM and population densities 
surpassed those in the scrub in the fall and winter following the 
storm. Similar movement and habitat occupation patterns were observed 
following Hurricane Georges in 1998. Therefore, while ABM numbers and 
habitat quality in the frontal dunes ebb and flow in response to 
tropical storms, the higher-elevation scrub habitat is important to 
mouse conservation as a more stable environment during and after storm 
events.
    According to our review of estimated flood levels from hurricanes 
using the National Hurricane Center's Sea, Lake and Overland Surge from 
Hurricanes (SLOSH) model (ACOE 2001), and ABM habitat maps (Service 
2003), we estimate that between 827 and 620 acres (335 and 251 
hectares) of ABM habitat would not be inundated during a Category 3 to 
5 storm. A recent estimate of the 100-year flood (flood event that has 
a 1 percent chance of occurrence each year) due to hurricane activity 
concluded that 895 acres (362 hectares) of ABM habitat would not be 
inundated (ENSR 2004). In our review of beach mouse habitat following 
the direct hit from Hurricane Ivan, we determined (through the review 
of aerial photography taken before and after the storm and delineation 
of the surge debris line with global positioning systems) that 
approximately 1,400 ac (567 ha) were not directly impacted by storm 
surge. Much of this area was however, moderately impacted (such as wind 
damage to vegetation, salt spray burning of vegetation) (Service 
2004a). Following Hurricane Ivan, mice were trapped almost exclusively 
in scrub habitat that was not inundated by storm surge, or in 
immediately adjacent areas (Service 2004a; Service 2005a; Volkert 2005; 
Endangered Species Consulting Services 2004d). Thus, high-elevation 
habitat not inundated by hurricanes is essential to the conservation of 
the species.

Habitat Connectivity

    Habitat loss and fragmentation associated with residential and 
commercial real estate development is the primary threat contributing 
to the endangered status of beach mice (Holler 1992; Humphrey 1992). 
Holliman (1983) estimated that 62 percent of all beach mouse habitat in 
Alabama had been lost to development between 1921 and 1983. More recent 
studies (Douglass et al. 1999; South Alabama Regional Planning 
Commission 2001) document continued growth. Coastal development has 
fragmented beach mouse habitat and created disjunct populations (for 
example, population at Gulf State Park). Isolation of habitats by 
imposing barriers to species movement is an effect of fragmentation 
that equates to reduction in total habitat (Noss and Csuti 1997). 
Furthermore, the isolation of small populations of beach mice reduces 
or precludes gene flow between populations and can result in the loss 
of genetic diversity (Mech and Hallett 2001). Selander et al. (1971) 
found that allozyme variation in beach mouse populations (Perdido Key 
beach mice, Choctawhatchee beach mice, and ABM) was significantly lower 
than the variation detected in adjacent inland populations. 
Correlations between genetic variation (heterozygosity) and other 
factors have been well-researched with oldfield mice. Lower levels of 
heterozygosity have been linked to less efficient feeding, fewer 
demonstrations

[[Page 5522]]

of social dominance and exploratory behavior, and smaller body size 
(Smith et al. 1975, Garten 1976, Teska et al. 1990). Research focused 
on inbreeding depression in oldfield mice (including one beach mouse 
subspecies) determined that the effects of inbreeding negatively 
influenced factors such as litter size, number of litters, and juvenile 
survivorship (Lacy et al. 1995). Demographic factors such as predation 
(especially by domestic cats), diseases, and competition with house 
mice are intensified in small, isolated populations, which may be 
rapidly extirpated by these pressures. Especially when coupled with 
events such as storms, reduced food availability, and/or reduced 
reproductive success, isolated populations may experience severe 
declines or extirpation (Caughley and Gunn 1996). The strength of 
influence these factors have on populations or individuals is largely 
dependent on the degree of isolation.
    Connectivity becomes essential where mice occupy fragmented areas 
lacking one or more habitat types. If scrub habitat is lacking from a 
particular tract, adjacent or connected tracts with scrub habitat are 
necessary for food and burrow sites when resources are scarce in the 
frontal dunes, and are essential to beach mouse populations during and 
immediately after hurricanes. Trapping data suggest that beach mice 
occupying the scrub (following hurricanes) recolonize the frontal dunes 
once vegetation and some dune structure have recovered (Swilling et al. 
1998; Sneckenberger 2001). Similarly, when frontal dune habitat is 
lacking from a tract and a functional pathway from scrub habitat to 
frontal dune habitat does not exist, beach mice may not be able to 
obtain the resources necessary to expand the population and reach the 
densities necessary to persist through the harsh summer season or the 
next storm. General research supports the effectiveness of biological 
corridors (Beier and Noss 1998) and recent population viability 
analysis work suggests the importance of functional pathways for ABM 
(Traylor-Holzer 2005). These functional pathways may allow for natural 
behavior such as dispersal and exploratory movements, as well as gene 
flow to maintain genetic variability of the population within 
fragmented or isolated areas. To that end, contiguous tracts or 
functionally connected patches of suitable habitat provide connectivity 
that is essential to the long-term conservation of beach mice.

Food Resources and Vegetative Cover

    ABM feed primarily upon seeds and fruits but have been shown to 
prey on insects. They appear to forage on food items based on 
availability and have shown no preferences for particular seeds or 
fruits (Moyers 1996). Research suggests that the availability of food 
resources fluctuates seasonally in Gulf Coast coastal dune habitat, 
specifically that food resources may be limited during winter and 
spring in the scrub habitat and limited in the frontal dunes in the 
summer and fall (Sneckenberger 2001). Nutritional analysis of foods 
available in each habitat revealed that seeds of plant species in both 
habitats provide a similar range of nutritional quality. The frontal 
dunes appear to have more species of high-quality foods, but these 
sources are primarily grasses and annuals that produce large quantities 
of small seeds in a short period of time. Foods available in the scrub 
consist of larger seeds and fruits that are produced throughout a 
greater length of time and linger in the landscape. Consequently, 
large, contiguous tracts containing both frontal dune and scrub habitat 
types are necessary to provide both: (1) a large quantity of food 
resources coinciding with the reproductive season, and (2) a relatively 
stable source of food resources when availability is reduced.
    Foraging activities and other natural behaviors of ABM are 
influenced by many factors. Artificial lighting alters behavior 
patterns, causing beach mice to avoid otherwise suitable habitat and 
decreases the amount of time they are active (Bird et al. 2004). The 
presence of vegetative cover reduces predation risk and perceived 
predation risk of foraging beach mice, and allows for normal movements, 
activity, and foraging patterns. Foraging in sites with vegetative 
cover is greater and more efficient than in sites without cover (Bird 
2002). Beach mice have also been found to select habitat for increased 
percent cover of vegetation, and decreased distance between vegetated 
patches (Smith 2003). Behavioral modification or increased predation in 
response to these factors can result in population decreases and 
restricted use of available habitat.

Burrow Sites

    ABM use burrows to avoid predators, protect young, store food, and 
take refuge between foraging bouts and during periods of rest and have 
been shown to select burrow sites based on a suite of abiotic and 
biotic factors. A limitation in one or more factors may result in a 
shortage of suitable sites and the availability of potential burrow 
sites in each habitat may vary seasonally. ABM tend to construct 
burrows in areas with greater plant cover, less soil compaction, steep 
slopes, and higher elevations above sea level (Lynn 2000; Sneckenberger 
2001). Burrows are typically constructed in Coastal beach or St. Lucie 
sands (Soil Conservation Service 1964) free of obstructions or debris. 
These factors are likely important in minimizing energy costs of burrow 
construction and maintenance while maximizing the benefits of burrow 
use by making a safe and physiologically efficient refuge. Similar to 
food resources, this fluctuation in availability of burrow sites 
suggests that a combination of primary, secondary, and scrub dune 
habitat is essential to beach mice at the individual level.

Habitats Protected From Anthropogenic Disturbance

    Artificial lighting, non-native species, and refuse can directly 
and indirectly increase predation pressure on beach mice beyond their 
natural levels. Free-roaming and feral pets are believed to have a 
devastating effect on beach mouse persistence (Bowen 1968; Linzey 1978) 
and are considered to be the main cause of the loss of at least one 
population of ABM (Holliman 1983). Cat tracks have been observed in 
areas of low trapping success for beach mice (Moyers et al. 1999). A 
VORTEX population and habitat viability analysis for the ABM indicated 
that if each population had as few as one feral cat that ate one mouse 
a day, rapid extinction occurred in over 99 percent of all iterations 
(Traylor-Holzer et al. 2005). Refuse has been shown to attract 
competitors (house mice, Mus musculus) and predators (such as coyote, 
Canis latrans; red fox, Vulpes vulpes), unsettling the natural 
predator/prey balance and competing with beach mice for resources. This 
issue is of particular importance and has the most impact when beach 
mouse populations are at low densities. This influx of development-
related predators and competitors is believed to be the final cause of 
the extinction of the pallid beach mouse (Peromyscus polionotus 
decoloratus) (Humphrey 1992).
    Beyond the direct effects of mortality due to predation, beach 
mouse habitat use and foraging patterns are influenced by these 
anthropogenic disturbances. Artificial lighting, for example, increases 
the risk of predation and influences beach mouse foraging patterns and 
natural movements as it increases their perceived risk of predation. 
Beach mice avoid areas with artificial lighting or reduce the time

[[Page 5523]]

spent foraging in lighted areas (Bird et al. 2004.) Consequently, 
because of these anthropogenic factors, mice may be unable to gather 
necessary food resources or fail to utilize otherwise suitable habitat.

Primary Constituent Elements for the Alabama Beach Mouse

    PCEs determined for the ABM in connection with the original 
designation of critical habitat included dunes and interdunal areas, 
and associated grasses and shrubs that provide food and cover (50 FR 
23872). However, these elements did not address many of the 
requirements that we now know are crucial for long-term persistence of 
beach mice, including the need for scrub dune habitat. Based on our 
current knowledge of the life history, biology, and ecology of the 
species and the requirements of the habitat to sustain theessential 
life history functions of the species, we have determined that the 
ABM's PCEs are:
    1. A contiguous mosaic of primary, secondary, and scrub vegetation 
and dune structure, with a balanced level of competition and predation 
and few or no competitive or predaceous nonnative species present, that 
collectively provide foraging opportunities, cover, and burrow sites.
    2. Primary and secondary dunes, generally dominated by sea oats 
(Uniola paniculata), that despite occasional temporary impacts and 
reconfiguration from tropical storms and hurricanes, provide abundant 
food resources, burrow sites, and protection from predators.
    3. Scrub dunes, generally dominated by scrub oaks (Quercus spp.), 
that provide food resources and burrow sites, and provide elevated 
refugia during and after intense flooding due to rainfall and/or 
hurricane-induced storm surge.
    4. Functional, unobstructed habitat connections that facilitate 
genetic exchange, dispersal, natural exploratory movements, and 
recolonization of locally extirpated areas.
    5. A natural light regime within the coastal dune ecosystem, 
compatible with the nocturnal activity of beach mice, necessary for 
normal behavior, growth, and viability of all life stages.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat on lands that were 
occupied at the time of listing and contain sufficient PCEs to support 
life history functions essential to the conservation of the ABM. In a 
few instances, we are also proposing to designate areas that were 
identified as occupied after listing, but that we have determined to be 
essential to the conservation of the ABM.
    An area was considered for designation where it possesses one or 
more of the PCEs and at least one of the following characteristics: (1) 
Supports a core population of beach mice; (2) was occupied by ABM at 
the time of listing; (3) is currently occupied by the beach mouse 
according to Service ABM trapping protocol (Service 2005c) and has been 
determined to be essential to the conservation of the species. The 
Service has developed a trapping protocol for establishing absence of 
beach mice (see ADDRESSES to request a copy). To document absence, this 
protocol requires 2 years of quarterly trapping with no beach mice 
captured. Presence of beach mice, however, can be documented by the 
capture of one beach mouse, or the observation of beach mouse tracks or 
beach mouse burrows by a beach mouse expert or similarly qualified 
biologist.
    Following the strategy outlined above, we began by mapping coastal 
dune communities within the historic range of each subspecies of beach 
mouse. These areas were refined by using aerial map coverages to 
eliminate features such as housing developments and other areas that 
are unlikely to contribute to the conservation of beach mice. We then 
focused on areas supporting beach mice, as well as areas that contain 
the PCEs for the subspecies.
    Because the ABM habitat is dynamic and changes in response to 
coastal erosion, we believe that limiting the proposed designation to 
areas occupied at the time of listing would not yield sufficient 
habitat for the persistence of beach mice. The fragmentation of the 
species' historic habitat, coupled with the dynamic nature of coastal 
dune habitat due to tropical storms, makes multiple populations 
essential for species conservation. Consequently, we are proposing 
units that were not occupied at the time of listing. These areas, 
however, are currently occupied by the species, have one or more of the 
PCEs, are within the historic range of the species, and are essential 
for the conservation of the ABM.
    The combined extent of these mapped areas defines the habitat that 
contains features that are essential to the conservation of the 
subspecies. Although these areas proposed for designation represent 
only a small proportion of the subspecies' historic range, they include 
a significant proportion of the remaining intact coastal communities 
and reflect the habitat types historically occupied by beach mice. 
Areas not containing the PCEs, such as wetlands and maritime forests, 
were not included within the proposed designation. Field reconnaissance 
was done in a few areas for verification. We eliminated highly degraded 
tracts, and small, isolated, or highly fragmented tracts that provide 
no long-term conservation value. The remaining areas were identified as 
containing the PCEs and are proposed as five critical habitat units for 
the ABM.
    We reviewed existing ABM management and conservation plans to 
determine if any areas identified above did not meet the definition of 
critical habitat according to section 3(5)(A) of the Act, or could be 
excluded from the revised designation in accordance with section 
4(b)(2). Portions of the Perdue Unit of the Bon Secour National 
Wildlife Refuge (Refuge) are adequately protected under the Refuge's 
Comprehensive Conservation Plan (CCP) and do not require special 
management or protection. While these areas, which collectively total 
1,063 ac (430 ha), contain the habitat features that are essential to 
the conservation of the subspecies, they are proposed for exclusion 
(see Exclusions section).
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed species incidental to otherwise lawful activities. 
An incidental take permit application must be supported by a habitat 
conservation plan (HCP) that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the requested incidental take. We often exclude non-
Federal public lands and private lands that are covered by an existing 
operative HCP under section 10(a)(1)(B) of the Act from designated 
critical habitat because the benefits of exclusion outweigh the 
benefits of inclusion as discussed in section 4(b)(2) of the Act. As 
discussed in further detail below (see ``Application of Sections 
3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act''), 
we are proposing 56 properties for exclusion that are currently 
protected through Habitat Conservation Plans that provide protection 
and habitat management for Alabama beach mice.
    There are 56 properties that have been issued incidental take 
permits (ITPs) for ABM under section 10(a)(1)(B) within the areas that 
we have identified contain the features essential to the conservation 
of the subspecies. All of these properties possess HCPs that require 
the use of native plants in landscaping, control of domestic and feral 
cats and house mice, wildlife-friendly lighting, monitoring, and other 
activities beneficial to ABM. After our review of these ITPs and

[[Page 5524]]

HCPs, we believe the benefits of exclusion from the proposed critical 
habitat revision outweigh the benefits of inclusion for all 56 of these 
areas, covering a total of 158 ac (64 ha). We propose to designate the 
remaining 1,298 ac (525 ha) as ABM critical habitat.
    In summary, the habitat contained within the five proposed units 
described below, combined with habitat within the Perdue Unit of the 
Refuge and in the HCP sites proposed for exclusion, constitutes our 
best determination of areas that contain the physical and biological 
features essential for the conservation of the ABM. The five units that 
we are proposing as critical habitat encompass approximately 1,298 ac 
(525 ha) of coastal dune habitat in Baldwin County, Alabama. Each of 
these units has been occupied by the species as recently as 2004. 
Although these units represent only a small proportion of the 
subspecies' historic range, they include a significant proportion of 
Alabama's best remaining coastal dune habitat, reflect the wide variety 
of habitat types utilized by the ABM, and are spread evenly throughout 
the historic range of the subspecies. The areas include all of the 
high-elevation habitats (as determined by review of LIDAR data, storm 
surge model estimates, and post-Hurricane Ivan measurements) crucial to 
the subspecies' survival during and after major hurricane events. 
Because short-term occupation of habitat varies in response to tropical 
storm activity, ABM presence will vary spatially and temporally 
throughout the proposed designation, and may be unevenly distributed at 
any given time.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid proposing the designation of developed areas such 
as buildings or houses, paved areas, gravel driveways, ponds, swimming 
pools, lawns, and other structures that lack PCEs for the ABM. When it 
has not been possible to map out these structures and the land upon 
which they are sited because of scale issues, they have been excluded 
by rule text. Therefore, Federal actions limited to these areas would 
not trigger section 7 consultations, unless they affect the species 
and/or PCEs in adjacent critical habitat. It is important to note that 
the maps provided in this proposed rule (see ``Proposed Regulation 
Promulgation'' section) are for illustrative purposes. For the precise 
legal definition of critical habitat, please refer to the narrative 
unit descriptions in the ``Proposed Regulation Promulgation'' section 
of this rule.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and containing the 
PCEs may require special management considerations or protections. We 
also assess whether areas determined to be occupied since the time of 
listing and containing PCEs require special management considerations 
or protections. As discussed in more detail in the unit descriptions 
below, we find that all of the areas we are proposing for designation 
may require special management considerations or protections due to 
threats to the subspecies and/or its habitat. Such management 
considerations and protections include management of non-native 
predators and competitors, management of non-native plants, and 
protection of beach mice and their habitat from threats by road 
construction, urban and commercial development, heavy machinery, and 
recreational activities.

Proposed Critical Habitat Designation

    We are proposing five units as critical habitat for the ABM. The 
units described below constitute our best assessment, at this time, of 
the areas determined to be occupied by the ABM at the time of listing 
that contain one or more of the primary constituent elements and may 
require special management, and those additional areas that were not 
occupied at the time of listing, but were found to be essential for the 
conservation of ABM. These five units, as well as the areas proposed 
for exclusion below, represent our determination of those areas that 
contain the physical and biological features that are and those 
additional areas found to be essential to the conservation of the 
subspecies. These additional areas are essential for the conservation 
of the ABM for two main reasons. First, at the time of listing, beach 
mice were thought to be restricted to the frontal dune habitat and 
researchers did not focus on scrub habitat. Consequently, occurrence 
information of beach mice in scrub habitat was sparse even in the 
relatively recent past. However, scrub habitat is now known to be 
invaluable to beach mice and inclusion of this habitat in critical 
habitat is a main stimulus of this redesignation. Second, as the 
coastal dune environment changes dramatically through time, so do beach 
mouse populations. As dunes erode or build and habitat and food 
resources fluctuate in response to coastal processes such as erosion 
and tropical storm events, beach mouse populations respond accordingly, 
either through short- or long-term movements, or through local 
extinctions. As habitat improves in the future, densities increase or 
beach mice recolonize the recovering areas. Because of this aspect of 
their biology, and the fact that so few natural areas remain but mice 
currently occupy these areas, these areas containing PCEs where beach 
mice had not been detected at the time of listing are important to the 
species' persistence. We have proposed only those areas that we believe 
to be essential for the conservation of the ABM. For these reasons 
listed above, we propose areas that were not known to be occupied at 
the time of listing, but contain one or more of the PCEs and are 
essential for the conservation of the beach mice.
    We are proposing five areas as critical habitat for the ABM: (1) 
Fort Morgan State Historic Site and adjacent lands (hereafter referred 
to as Fort Morgan Unit), (2) lands along the right-of-way of Fort 
Morgan Parkway (State Highway 180), and south of the Alabama Department 
of Environmental Management's Coastal Construction Control line 
(hereafter referred to as Little Point Clear Unit), (3) high-elevation 
habitat in the Gulf Highlands (multifamily) area (Gulf Highlands Unit), 
(4) Bureau of Land Management properties and private inholdings within 
the Perdue Unit of the Refuge (hereafter referred to as Pine Beach), 
and (5) Gulf State Park Unit. Table 1 below provides the approximate 
area (acres/hectares) determined to meet the definition of critical 
habitat for the ABM.

[[Page 5525]]



 Table 1.--Areas Determined To Meet the Definition of Critical Habitat for the Alabama Beach Mouse and the Area
                             Proposed for Exclusion From the Final Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                               Area proposed
                                                               for exclusion
                                               Definitional     from final
               Geographic area                 areas (acres/    designation         Conservation plan type
                                                 hectares)        (acres/
                                                                 hectares)
----------------------------------------------------------------------------------------------------------------
The Dunes...................................            15/6            15/6  HCP.
Bay to Breakers.............................             3/1             3/1  HCP.
Kiva Dunes..................................           50/20           50/20  HCP.
Plantation Palms............................            12/5            12/5  HCP.
The Beach Club..............................            15/6            15/6  HCP.
Martinique on the Gulf......................            10/4            10/4  HCP.
Perdue Unit, Bon Secour NWR.................       1,063/430       1,063/430  CCP.
Gulf State Park.............................          171/69           44/18  HCP.
49 Single Family Homes......................            17/7            17/7  HCP.
                                             --------------------------------
    Total (Baldwin County)..................        1356/548        1229/497
----------------------------------------------------------------------------------------------------------------

    The approximate area encompassed within each proposed critical 
habitat unit is shown in Table 2.

                      Table 2.--Critical Habitat Units Proposed for the Alabama Beach Mouse
    [Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas
                                                  without PCEs]
----------------------------------------------------------------------------------------------------------------
                                                                                     Local and
                                                      Federal     State  (acres/      private     Total  (acres/
              Critical habitat unit                   (acres/        hectares)        (acres/        hectares)
                                                     hectares)                       hectares)
----------------------------------------------------------------------------------------------------------------
1. Fort Morgan..................................           44/18         337/136           44/18         424/172
2. Little Point Clear...........................            16/6           82/33          173/71         264/106
3. Gulf Highlands...............................            11/4           47/19         338/137         388/157
4. Pine Beach...................................            11/5  ..............            21/8           32/13
5. Gulf State Park..............................  ..............          190/77  ..............          190/77
                                                 -----------------
    Total.......................................           82/33         656/265         576/234       1,298/525
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units, and reasons why they 
have the features that are essential for the conservation of the ABM, 
below. Universal Transverse Mercator (UTM) coordinates and a more 
precise legal description of each unit are provided in the Proposed 
Regulation section.

Unit 1: Fort Morgan Unit

    Unit 1 (Map 2) consists of 424 ac (172 ha) and encompasses ABM 
habitat in the Fort Morgan State Historic Site and private lands to the 
east. It is located at the extreme western edge of the ABM range, and 
consists principally of habitat that was known to be occupied at the 
time of listing (50 FR 23872; Holliman 1983) south of State Highway 180 
(hereafter referred to as Fort Morgan Parkway in the rule text), with 
the exception of a single line of high scrub dunes directly north of 
the roadway and within the historic site boundaries. The actual Fort 
and associated structures and developed areas that were included in the 
original designation are not included in this proposed unit. The unit 
extends from mean high water line (MHWL) northward to the break between 
scrub dune habitat and either the maritime forest or developed 
landscape (such as grassy areas associated with Fort Morgan State 
Historic Site). The proposed unit is bounded to the west by Mobile Bay, 
and to the east by Unit 2 (western property line of the ``Bay to 
Breakers'' residential development) (see Unit 2 Description). Much of 
Unit 1 is existing critical habitat that was designated at the time of 
listing (50 FR 23872). We are proposing a minor expansion to 
incorporate scrub habitat. ABM habitat within The Dunes development is 
protected under an HCP: therefore, we propose to exclude from this Unit 
(see Exclusions section).
    ABM occurrence in the proposed unit over time is well documented 
(Holliman 1983; 50 FR 23872; Rave and Holler 1992; Sneckenberger 2001) 
and mice have been captured here following Hurricane Ivan (Endangered 
Species Consulting Services 2004a; Service 2005a). Suspected ABM tracks 
have been identified following Hurricanes Katrina and Rita (2005) 
(Service 2005a). This unit contains the features essential to the 
conservation of the subspecies. Some areas of the unit contain a 
contiguous mix of primary and secondary dunes, interdunal swales, 
wetlands, and scrub dunes, whereas other areas contain high-quality 
primary and secondary dune habitat. While no one portion of the 
proposed unit contains every PCE, all five PCEs are present.
    Natural areas of the Fort Morgan Historic Site are owned by the 
State of Alabama (Alabama State Historical Commission), but are 
currently managed by the Refuge according to a cooperative agreement 
(Service 2005d) (see ``Application of Section 3(5)(A) and Exclusions 
Under Section 4(b)(2) of the Act'' section for further detail on 
management). Threats in this unit that may require special management 
considerations include human-

[[Page 5526]]

generated refuse and degraded habitat (from activities associated with 
recreational use, for example).

Unit 2: Little Point Clear Unit

    Unit 2 consists of 264 ac (106 ha) and includes east-west bands of 
ABM habitat south of the Alabama Department of Environmental 
Management's Coastal Construction Control Line (CCCL) (ADEM 1995) and 
along the southern roadway right-of-way for Fort Morgan Parkway (see 
Map 3). This Unit is bounded to the west by Unit 1 and extends eastward 
to the western edge of the Surfside Shores subdivision (western 
boundary of Unit 3). The CCCL varies in width but generally extends 
about 300 feet (91 meters) landward of MHWL. The Fort Morgan Parkway 
right-of-way, which is managed by the State of Alabama (Alabama 
Department of Conservation and Natural Resources) extends 160 feet (49 
meters) south of and parallel to the roadway centerline. Proposed 
critical habitat does not include the road or shoulder of the Fort 
Morgan Parkway. In several places along the east-west extent of these 
units, additional parcels, either to the south of the Fort Morgan 
Parkway or to the north of the CCCL, which contain the PCEs (see 
Primary Constituent Element section) are proposed for inclusion in the 
revised designation.
    This unit, while often being inundated during storm surge events 
(Service 2004a; ENSR 2004; ACOE 2001), represents the last remaining 
natural habitat connections between ABM populations in and around Unit 
1 and Unit 3, and provides an essential link between those populations 
(PCE 4). Portions of this unit south of the CCCL contain PCE 
2 and some sections of the right-of-way contain PCE 
3. While this area was identified as being within the range of 
the ABM (50 FR 23872; Holliman 1983, Dawson 1983), we have no records 
that ABM were present at the time of listing. However, pre-hurricane 
Ivan trapping has verified the presence of mice south of the CCCL 
(Meyers 1983; 50 FR 23872; Endangered Species Consulting Services 
2004b) and along the right-of-way (Sneckenberger 2001; Farris 2003). As 
described above, due to life history aspects of ABM, because so few 
natural areas remain for ABM, and because this unit is currently 
occupied and contains two of the PCEs, we consider this unit essential 
for the conservation of the subspecies. Habitat south of the CCCL 
consists of primary and secondary dunes, while habitat along the right-
of-way consists primarily of scrub that is often temporarily disturbed 
by utility line maintenance. This frequent disturbance may benefit ABM 
by maintaining the habitat in an open condition.
    This proposed unit is a mix of State, Federal, local, and private 
ownership. Threats south of the CCCL that may require special 
management include extensive recreational pressure and feral cats.

Unit 3: Gulf Highlands Unit

    Unit 3 consists of 388 ac (157 ha) in the central portion of the 
Fort Morgan Peninsula. It includes portions of the Morgantown, Surfside 
Shores, and Cabana Beach subdivisions, as well as portions of the 
proposed Beach Club West/Gulf Highlands development, Bureau of Land 
Management properties, and some properties along the Fort Morgan 
Parkway right-of-way (see Map 4). It is bounded to the west by Unit 2. 
The main portion of the proposed unit generally stretches from MHWL 
landward to a natural border of wetlands to the north. This portion is 
bisected by ABM habitat associated with the Kiva Dunes, Plantation 
Palms, Beach Club, and Martinique developments and is proposed for 
exclusion because of its HCPs (see Exclusions section). The proposed 
unit also contains an eastward continuation of ABM habitat adjacent to 
the Fort Morgan Parkway. This northern portion of Unit 3 is bounded to 
the west by Unit 2 and to the east by wetlands on the Martinique 
property. Like the right-of-way corridor in Unit 2, it extends from the 
centerline of Fort Morgan Parkway 160 feet (49 meters) to the south. 
Unit 3 serves as an expansion of critical habitat Zone 2 that was 
designated at the time of listing (50 FR 23872), but did not include 
scrub habitat. This unit contains the features essential to the 
conservation of the subspecies; all five PCEs are present in varying 
amounts throughout this unit.
    This proposed unit, combined with the neighboring Perdue Unit of 
the Refuge and several properties with conservation plans that are 
being proposed for exclusion (see Exclusions section), contains the 
largest assemblage of high-elevation habitat within the range of the 
ABM (ENSR 2004; ACOE 2001; Service 2004c). The largest tracts of 
contiguous habitat possessing a full gradient of ABM habitat (primary 
dunes landward to scrub dunes) are also found here. ABM occupancy is 
well documented both at the time of listing (Meyers 1983; Holliman 
1983) and recently (Endangered Species Consulting Services, LLC and 
ENSR Corporation 2001; Farris 2003). Mice have been found here 
following Hurricane Ivan (Endangered Species Consulting Services 2004c, 
2004d). Threats that may require special management include habitat 
degradation and fragmentation, extensive recreational pressure, post 
storm cleanups, artificial lighting, predation, and human-generated 
refuse.

Unit 4: Pine Beach

    This unit (see Map 5) consists of 32 ac (13 ha), including a Bureau 
of Land Management property and 27 private inholdings within the Perdue 
Unit of the Bon Secour National Wildlife Refuge, not managed under the 
Refuge's draft Comprehensive Conservation Plan. The primary and 
secondary dunes within this unit were part of ``Zone 2'' of the 
original critical habitat designation. ABM are well documented from the 
area both recently (Rave and Holler 1992; Swilling et al. 1998; Service 
2003) and from the time of listing (Holliman 1983; Meyers 1983). This 
unit, along with adjacent Refuge lands (see Exclusions section), 
contains the features essential to the conservation of the ABM because 
of its high-elevation habitat and continuity between habitat types. It 
contains PCEs 2, 3, and 5, and when combined with the surrounding 
Refuge lands, it also includes PCEs 1 and 4. Threats that may require 
special management considerations on this unit may include artificial 
lighting from residences, human-generated refuse that may attract 
predators, feral cats, habitat fragmentation from the design and 
construction of properties (and access routes) to inholdings, and 
primary and secondary dunefields impacted from recent storm events.

Unit 5: Gulf State Park

    Unit 5 consists of 190 ac (77 ha) of ABM habitat in Gulf State 
Park, immediately east of the City of Gulf Shores and west of the City 
of Orange Beach (see Map 6). This unit retains most critical habitat 
designated in the 1985 listing rule (Zone 3--all primary and secondary 
dunes south of State Route 182) (50 FR 23872) and adds approximately 30 
ac (12 ha) of scrub habitat located directly north of S.R. 182. It 
extends from MHWL northward to a natural boundary consisting of 
brackish wetlands and maritime forest. ABM habitat that is covered 
under the 2004 HCP is proposed for exclusion from the designation (see 
Exclusions section).
    This unit contains a mix of scrub and primary and secondary dune 
habitat, and represents the last remaining sizable block of habitat on 
the eastern portion of the historic range of the subspecies.
    Mice were documented in the Park in the late 1960s (Linzey 1970), 
but were

[[Page 5527]]

presumed extirpated by the early 1980s (Holliman 1983; Holler and Rave 
1991), because of habitat isolation combined with the effects of 
tropical storm, predation (primarily from feral cats), and competition 
with house mice. However, critical habitat designated in the Park at 
the time of listing was referred to as occupied in our final listing 
rule (50 FR 23872). Therefore, we consider this area to be occupied at 
the time of listing. ABM were reintroduced to the park in 1998, and 
subsequent trapping confirmed their presence there (Sneckenberger S., 
Service, personal communication, 2005; Service 2003b). This proposed 
unit was heavily impacted by Hurricane Ivan in 2004 (Service 2004a) and 
Hurricane Katrina (2005) and recent trapping has not located mice 
(Volkert 2005). This unit contains PCEs 2 and 3 and, therefore, 
possesses the habitat features essential to the conservation of the 
subspecies.
    This proposed unit is State-owned and managed by the State Parks 
Division of the Alabama Department of Conservation and Natural 
Resources. It has pressures from heavy recreational use, and ABM 
habitat here has been severely impacted by recent hurricanes. Threats 
to ABM habitat include loss of dune topography and vegetation from 
habitat destruction, human-generated refuse that could attract 
predators, feral cats, and artificial lighting. Habitat fragmentation 
also threatens ABM within this unit.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Courts of Appeal (see Gifford Pinchot Task Force v. U.S. Fish and 
Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. 
Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir 2001); 
also see discussion on Role of Critical Habitat above) have invalidated 
this definition. Pursuant to current national policy and the statutory 
provisions of the Act, destruction or adverse modification is 
determined on the basis of whether, with implementation of the proposed 
Federal action, the affected critical habitat would remain functional 
(or retain the current ability for the PCEs to be functionally 
established) to serve the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. This is a procedural requirement only. 
However, once proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated that may be affected and the Federal 
agency has retained discretionary involvement or control over the 
action or such discretionary involvement or control is authorized by 
law. Consequently, some Federal agencies may request reinitiation of 
consulting us on actions for which formal consultation has been 
completed, if those actions may affect

[[Page 5528]]

subsequently listed species or designated critical habitat or adversely 
modify or destroy proposed critical habitat.
    Federal activities that may affect the ABM or its designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, local, or private lands requiring a permit from a 
Federal agency, such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit 
from the Service, or some other Federal action, including funding 
(e.g., Federal Highway Administration or Federal Emergency Management 
Agency funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Alabama Beach Mouse and Its Critical 
Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for ABM jeopardy analyses that 
relies heavily on the importance of populations to the survival and 
recovery of the subspecies. The section 7(a)(2) analysis is focused not 
only on these populations but also on the habitat conditions necessary 
to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the ABM in a qualitative fashion without making distinctions 
between what is necessary for survival and what is necessary for 
recovery. Generally, if a proposed Federal action is incompatible with 
the viability of a population, inclusive of associated habitat 
conditions, a jeopardy finding is considered to be warranted, because 
of the relationship of each population to the survival and recovery of 
the species as a whole.

Adverse Modification Standard

    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting ABM critical habitat. The key factor related 
to the adverse modification determination is whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species. Generally, the 
conservation role of critical habitat units is to support viable 
populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may destroy 
or adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the ABM. Federal 
activities that, when carried out, may adversely affect critical 
habitat for the ABM include, but are not limited to:
    (1) Actions that would significantly alter dune structure or the 
degree of soil compaction. Such activities could include, but are not 
limited to, permanent conversion of ABM habitat for residential or 
commercial purposes, excessive foot traffic, and the use of 
construction, utility, or off-road vehicles in beach mouse habitat. 
These activities, even if temporary, could alter burrow construction, 
reduce the availability of potential burrow sites, and degrade or 
destroy beach mouse habitat.
    (2) Actions that would significantly alter the natural vegetation 
of the coastal dune community. Such activities could include, but are 
not limited to, allowing non-native species to establish in the area, 
landscaping with grass or other non-indigenous plants, and landscaping 
that yields excessive leaf litter, mulch, or other foreign materials. 
These activities could alter beach mouse foraging activities and 
degrade or destroy beach mouse habitat.
    (3) Actions that would significantly alter the natural predator/
prey balance of the coastal dune community. Such activities could 
include, but are not limited to, allowing unprotected refuse in the 
area and allowing or encouraging feral cat communities or the temporary 
release of domestic cats. These activities could alter beach mouse 
foraging activities and the availability of foraging resources and 
cause appreciable mortalities.
    (4) Actions that would significantly alter natural lighting. Such 
activities could include, but are not limited to, allowing artificial 
lighting that does not comply with wildlife-friendly lighting 
specifications. These activities could alter beach mouse foraging 
activities, increase predation upon beach mice, and reduce the use of 
otherwise suitable beach mouse habitat.
    (5) Activities that eliminate or degrade movement within and among 
designated critical habitat units. Actions such as bulkhead, canal, 
ditch, and wall construction; the permanent conversion of beach mouse 
habitat to residential or commercial development; changing of water 
elevations or flooding; the removal of vegetation; and excessive 
artificial lighting could effectively block east-west and/or north-
south corridors among various habitat types, and isolate habitat.
    We consider the five critical habitat units to be currently 
occupied by the subspecies, based on trapping data, our 2003 habitat 
map, and Service trapping protocol (Service 2005c). All of the units 
included in this proposed designation contain the features that are 
essential to the conservation of the ABM or are found to be essential 
for the conservation of the subspecies.

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

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species at the time of 
listing on which are found those physical and biological features (i) 
essential to the conservation of the species and (ii) that may require 
special management considerations or protection. Therefore, areas 
within the geographical area occupied by the species at the time of 
listing that do not contain the features essential for the conservation 
of the species are not, by definition, critical habitat. Similarly, 
areas within the geographic area occupied by the species at the time of 
listing that do not require special management or protection also are 
not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole will provide the same 
level of protection that designation of critical habitat would provide. 
The plan need not lead to exactly the same result as a designation in 
every individual application, as long as the protection it provides is 
equivalent, overall. In

[[Page 5529]]

making this determination, we examine whether the plan provides 
management, protection, or enhancement of the PCEs 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. Each review is particular to the species and the plan, and some 
plans may be adequate for some species and inadequate for others.
    We consider 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).
    Further, section 4(b)(2) of the Act states that critical habitat 
shall be designated, and revised, on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.

Perdue and Fort Morgan Units of the Bon Secour National Wildlife Refuge

    The Refuge finalized its Comprehensive Conservation Plan in 
November 2005. This document details proposed conservation actions for 
the Refuge over a 15-year period, and outlines three objectives 
(implement monitoring protocol and manage beach and scrub habitat for 
the ABM) and two projects (standardize surveys and manage and evaluate 
scrub habitat for the ABM) that specifically address the subspecies. 
Many other objectives (e.g., predator management plan) and projects 
(e.g., develop biological database) would also benefit ABM. The Service 
has a statutory mandate to manage the refuge for the conservation of 
listed species, and the CCP provides a detailed implementation plan.
    We believe that the CCP provides a substantial conservation benefit 
to the subspecies, and there are reasonable assurances that it will be 
implemented properly and in an effective fashion within portions of the 
Perdue Unit of the Refuge that contains the physical and biological 
features essential to the conservation of the ABM. Accordingly, we 
believe that these units of the Refuge do not meet the definition of 
critical habitat under section 3(5)(A) of the Act because a secure 
management plan is already in place to provide for the conservation of 
the ABM, and no special management or protection will be required.
    The Service also either owns or manages 510 acres of coastal dune 
habitat, most of which is occupied by ABM, within the boundaries of the 
Fort Morgan State Historic Site. These lands, collectively, are 
referred to as the Fort Morgan Unit of the Refuge, but are within the 
Historic Site. Of the 510 acres, approximately 480 acres are owned by 
the State, but are managed by the Service through a cooperative 
management agreement with the Alabama Historical Commission. While the 
CCP outlines proposed management activities within the Fort Morgan 
Unit, we do not know whether the cooperative management agreement will 
be modified or terminated in the future, and therefore, if the 
conservation plan outlined within the CCP will be implemented. Areas 
containing the PCEs within these State-owned lands and the 
approximately 30 acres of Federal land imbedded within them, therefore, 
may require special management or protection, and are being proposed 
for inclusion into the critical habitat designation as part of Unit 1.

Habitat Conservation Plans (HCPs)

    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic and national 
security impacts, when designating critical habitat. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed wildlife species incidental to otherwise lawful activities. The 
ESA specifies that an application for an incidental take permit (ITP) 
must be accompanied by a habitat conservation plan and specifies the 
content of such a plan. The purpose of conservation plans is to 
describe and ensure that the effects of the permitted action on covered 
species are adequately minimized and mitigated, and that the action 
does not appreciably reduce the survival and recovery of the species.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. The areas occupied by, and 
determined to have features essential to, ABM include 56 approved HCPs 
that specifically address the subspecies. These include HCPs for 6 
multifamily developments, one hotel and convention center complex, and 
49 single family homes (see below).
    The completed HCPs and the associated ITPs issued by the Service 
contain management measures and protections for identified areas that 
protect, restore, and enhance the value of these lands as habitat for 
ABM. These measures include explicit standards to minimize any impacts 
to the ABM and its habitat. In general, HCPs are designed to ensure 
that the value of the conservation lands are maintained, expanded, and 
improved for the species that they cover.
    For HCPs that have been already approved, we have provided 
assurances to permit holders that once the protection and management 
required under the plans are in place and for as long as the permit 
holders are fulfilling their obligations under the plans, no additional 
mitigation in the form of land or financial compensation will be 
required of the permit holders and, in some cases, specified third 
parties.
    A discussion of completed HCPs for areas that we identified as 
having the PCEs follows.

Multifamily Developments

    HCPs for six multifamily developments along the Fort Morgan 
Peninsula were approved between 1994 and 1996. These developments 
include, from west to east, The Dunes, Bay to Breakers, Kiva Dunes, 
Plantation Palms, The Beach Club, and Martinique, all of which were 
issued 30-year ITPs by the Service. The HCPs covering the properties 
are almost identical and consist of setting aside primary and secondary 
dune habitat in perpetuity, and the construction of dune walkovers 
within protected areas to minimize pedestrian impact to habitat. These 
HCPs also require the use of native plants in landscaping, control of 
domestic and feral cats, interpretive signage, minimal outdoor 
lighting, live-trapping surveys, and annual reports.

[[Page 5530]]

HCPs for The Beach Club and Martinique developments also include the 
creation of endowment funds for use in future ABM conservation 
activities (e.g., research or habitat restoration). All of these 
properties have been developed as permitted or are nearing completion, 
and the areas within the properties that we have identified as 
containing the features that are essential to the conservation of the 
ABM consist of the acreage set aside as ABM conservation zones (see 
Table 1). Much of these conservation zones were designated as critical 
habitat at the time ABM was listed.
    On the basis of the conservation benefits afforded the ABM from the 
referenced HCPs and the provisions of section 4(b)(2) of the Act, we 
propose to exclude the areas on these properties that contain the 
features that are essential to the conservation of the subspecies from 
proposed critical habitat. We have further determined that the 
exclusion of these areas from critical habitat would not result in the 
extinction of the ABM. The rationale for this determination is below 
(see Benefits of Exclusion).

Gulf State Park Hotel and Convention Center Complex

    In 2004, we approved an HCP for the upcoming demolition and 
reconstruction of a new hotel and convention center complex south of 
S.R. 182 on Gulf State Park. This new complex will replace the current 
facilities (which were destroyed during Hurricane Ivan) and its 
construction will result in a net gain of 3 ac (1 ha) of ABM habitat 
due to improved siting and design of the structures and restoration 
work outlined in the HCP. The HCP for this complex, which covers both 
the construction and operation of the facilities, outlines an 
aggressive strategy for the control of roaming cats, house mice, and 
refuse; and includes wildlife-friendly lighting, native landscaping, 
and visitor outreach on the fragile coastal environment (including the 
ABM). The area covered by the HCP and ITP includes the 44 ac (18 ha) 
surrounding the complex.
    On the basis of the conservation benefits afforded the ABM from 
this HCP and the provisions of section 4(b)(2) of the Act, we propose 
to exclude the 44 ac (18 ha) covered area, portions of which we have 
identified contain the features that are essential to the conservation 
of the subspecies, from proposed critical habitat. We have further 
determined that the exclusion of this area from critical habitat would 
not result in the extinction of the ABM. The rationale for this 
determination is below (see Benefits of Exclusion).

Single Family Homes

    Prior to August 2004, we approved HCPs for the construction of two 
single family homes in the Cabana Beach subdivision. Portions of both 
these properties have been determined to contain the features that are 
essential to the conservation of the ABM. In August 2004, we approved 
HCPs for the construction of 17 additional single family homes in 
occupied ABM habitat. Ten of these properties have been determined to 
contain features essential to the conservation of the ABM (see CRITERIA 
section). In September 2005, we approved HCPs for the construction of 
55 more residences within occupied ABM habitat. Thirty-seven of these 
properties (11 of which are located within ``The Dunes'' development) 
have been determined to be essential to the ABM. The HCPs and ITPs 
covering all of these properties while under and after construction 
require a small developed footprint (typically no larger than 0.1 ac 
(0.004 ha)) for all structures and driveways, the construction of a 
dune walkover for Gulf-front lots, and the conservation of the 
remaining ABM habitat on the property for the duration of the ITP. The 
HCPs also call for wildlife-friendly lighting, landscaping with native 
plants, control of domestic pets (such as cats), and refuse control. 
The associated ITPs are valid for 50 years and ITP permit conditions 
are transferable if property ownership changes.
    On the basis of the conservation benefits afforded the ABM from the 
referenced HCPs and the provisions of section 4(b)(2) of the Act, we 
propose to exclude ABM habitat within these 49 properties that contain 
features essential to ABM conservation from proposed critical habitat. 
We have further determined that the exclusion of these areas from 
critical habitat would not result in the extinction of the ABM. The 
rationale for this determination is below (see Benefits of Exclusion).
    Following is our analysis of the benefits of including lands within 
approved HCPs versus excluding such lands from this critical habitat 
designation.
(1) Benefits of Inclusion
    The benefits of including approved HCPs in critical habitat are 
normally small. The principal benefit of any designated critical 
habitat is that federally funded or authorized activities that may 
affect it require consultation under section 7 of the Act. This 
consultation process ensures adequate protection against adverse 
modification of critical habitat. Where HCPs are in place, our 
experience indicates that this benefit is small or non-existent. 
Currently approved and permitted HCPs are typically crafted to ensure 
the long-term survival and conservation of covered species within the 
plan area. These approved HCPs, which were based upon the best 
available science at the time, set aside areas that contain the habitat 
features essential to the conservation of the subspecies, including 
critical habitat designated at the time of listing. Other areas within 
these developments no longer contain natural ABM habitat. All 56 HCPs 
include management measures and protections for conservation lands 
designed to protect, restore, and enhance their value as habitat for 
covered species. While the presence or absence of ABM on each of the 
sites has not been verified, the presence of ABM on many of the sites 
has been confirmed by field surveys. On the remainder of the sites, ABM 
have been documented on nearby or adjacent sites containing identical 
habitat. As such, we have a high degree of certainty that ABM 
cyclically utilize these sites. Surveys completed after the development 
of several of the sites indicates that ABM continue to utilize the 
undeveloped portions of the sites. Therefore, a clear Federal nexus 
remains on these sites. This includes the sites after development where 
we anticipate the continued usage by ABM.
    Another possible benefit to including these lands in the proposed 
designation is public outreach and education. The designation of 
critical habitat can serve to educate landowners and the public 
regarding the potential conservation value of an area. This may focus 
and contribute to conservation efforts by other parties by clearly 
delineating areas of high conservation value for certain species. 
However, through the HCP development process, which typically involves 
extensive outreach and opportunity for public review and typically 
results in formal protection of essential habitat areas, the public is 
well informed and educated about conservation value of essential 
habitat lands. The importance of these HCP-covered areas to the ABM is 
reinforced through the publication of this proposed critical habitat 
revision, regardless of whether the areas are included or excluded.
(2) Benefits of Exclusion
    The benefits of excluding HCPs include relieving landowners, 
communities and counties of the need to consult a second time to 
determine if

[[Page 5531]]

their proposed action would constitute adverse modification. A second 
consultation would provide little benefit for the species since a 
formal consultation has already been completed on the project site to 
determine if the project would result in jeopardy. Additional 
regulatory burden that might be imposed by critical habitat beyond that 
found in the HCP may be perceived. This benefit to exclusion is 
particularly compelling because we have made the determination that 
once an HCP is negotiated and approved by us after public comment, 
activities consistent with the plan will satisfy the requirements of 
the Act. Imposing an additional regulatory review after HCP completion 
may call into question conservation efforts and partnerships in many 
areas, and could be viewed as a disincentive to those developing HCPs. 
Excluding HCPs provides us an opportunity to streamline regulatory 
compliance, and provides regulatory certainty for HCP participants.
    Another benefit of excluding HCPs is that it would encourage the 
continued development of partnerships with present and future HCP 
participants, including States, local governments, conservation 
organizations, and private landowners, that together can implement 
conservation actions we would otherwise be unable to accomplish. By 
excluding areas covered by HCPs from critical habitat designation, we 
clearly maintain our commitments, preserve these partnerships, and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In addition, an HCP application must undergo consultation pursuant 
to section 7 of the Act. Several of these developments have already 
undergone a formal evaluation of the plan's potential to adversely 
modify critical habitat that was designated in 1985, and in all cases 
the designated critical habitat is part of the ABM conservation areas 
set aside under the HCP. In those areas where critical habitat had not 
been designated, we carefully analyzed the effects of the plan on 
essential habitat areas as part of our jeopardy analysis under section 
7 of the Act, and as part of its evaluation of the adequacy of the plan 
under section 10 of the Act. Because virtually all HCPs are developed 
to minimize and mitigate the impacts of take (as defined in the Act) of 
covered species resulting from habitat loss within the plan area, a 
fundamental goal of these plans is to identify and protect habitat 
essential to the covered species while directing development to non-
habitat or lower quality habitat areas. Thus, the plan's effectiveness 
in protecting essential habitat within the plan boundaries and 
management challenges within the plan boundaries will have been 
thoroughly addressed in the HCP. Future Federal actions that may affect 
listed species would continue to require consultation under the 
``jeopardy standard'' of section 7 of the Act.
    Further, HCPs typically provide for greater conservation benefits 
to a covered species than consultations pursuant to section 7 of the 
Act because HCPs assure the long-term protection and management of a 
covered species and its habitat, and funding for such management 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242) and the HCP No Surprises regulation (63 FR 8859). Such 
assurances are typically not provided by consultations under section 7 
of the Act that, in contrast to HCPs, often do not commit the project 
proponent to long-term special management or protections. Thus, a 
consultation typically does not afford the lands it covers the 
extensive benefits an HCP provides. The development and implementation 
of an HCP provide other important conservation benefits, including the 
development of biological information to guide conservation efforts and 
assist in species conservation, and the creation of innovative 
solutions to conserve species while allowing for development.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    In general, we believe that the benefits of critical habitat 
designation for the ABM on lands within the 56 approved HCPs that cover 
this subspecies are small while the benefits of excluding these lands 
from designation of critical habitat are substantial. After weighing 
the minor benefits of including these lands against the much greater 
benefits derived from exclusion, including encouraging the pursuit of 
additional conservation partnerships, we are excluding lands determined 
to contain features essential to ABM conservation within the 56 
developments covered by approved and legally operative HCPs from the 
proposed revised critical habitat.
    We believe that these HCPs and their associated ITPs adequately 
protect essential ABM habitat features within their boundaries and 
provide appropriate management to maintain and enhance the long-term 
value of this habitat. The education benefits of critical habitat 
designation have been achieved through the public outreach, and notice 
and comment procedures required prior to approval of these plans, and 
through their identification in this critical habitat revision. For 
these reasons we find that designation of critical habitat has little 
benefit in areas covered by these HCPs and that such benefits are 
outweighed by the benefits of maintaining proactive partnerships with 
plan participants and encouraging additional conservation partnerships 
that will result from exclusion of critical habitat in these plan 
areas. We also find that the exclusion of these lands from proposed 
critical habitat will not result in the extinction of the ABM, or 
hinder its recovery because their HCPs have already been evaluated 
under section 7 of the Act to ensure that their implementation will not 
jeopardize the continued existence of the subspecies.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for the Alabama beach mouse is being prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://www.fws.gov/daphne, or by contacting the 
Daphne Ecological Services Field Office directly (see ADDRESSES 
section). For further explanation, see the ``Regulatory Flexibility 
Act'' and ``Regulatory Planning and Review'' discussions below.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings

[[Page 5532]]

must be made in writing at least 15 days prior to the close of the 
public comment period. We intend to schedule public hearings once the 
draft economic analysis is available such that we can take public 
comment on the proposed designation and economic analysis 
simultaneously. However, we can schedule public hearings on this 
proposal prior to that time, if any are requested, and announce the 
dates, times, and places of those hearings in the Federal Register and 
local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
proposed rule clearly stated? (2) Does the proposed rule contain 
technical jargon that interferes with the clarity? (3) Does the format 
of the proposed rule (grouping and order of the sections, use of 
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is 
the description of the notice in the SUPPLEMENTARY INFORMATION section 
of the preamble helpful in understanding the proposed rule? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

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

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

    Our assessment of economic effect will be completed prior to final 
rulemaking based upon review of the draft economic analysis prepared 
pursuant to section 4(b)(2) of the ESA and E.O. 12866. This analysis is 
for the purposes of compliance with the Regulatory Flexibility Act and 
does not reflect our position on the type of economic analysis required 
by New Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife Service 248 
F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation. The Service will 
include with the notice of availability, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. The 
Service has concluded that deferring the RFA finding until completion 
of the draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that the Service makes a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This proposed rule to designate critical habitat for the ABM is not a 
significant regulatory action under Executive Order 12866, and it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates

[[Page 5533]]

to a then-existing Federal program under which $500,000,000 or more is 
provided annually to State, local, and tribal governments under 
entitlement authority,'' if the provision would ``increase the 
stringency of conditions of assistance'' or ``place caps upon, or 
otherwise decrease, the Federal Government's responsibility to provide 
funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments due to current public knowledge of the 
species' protection, the prohibition against take of the species both 
within and outside of the designated areas, and the fact that critical 
habitat provides no incremental restrictions, we do not anticipate that 
this rule will significantly or uniquely affect small governments. As 
such, Small Government Agency Plan is not required. We will, however, 
further evaluate this issue as we conduct our economic analysis and 
revise this assessment if appropriate.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Alabama. The designation of critical habitat in areas 
currently occupied by the ABM imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments in that the areas essential 
to the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the survival 
of the species are specifically identified. While making this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

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

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands with features essential for the conservation 
of the ABM. Therefore, critical habitat for the subspecies has not been 
designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Acting Field Supervisor, Daphne Fish 
and Wildlife Field Office (see ADDRESSES section).

Author

    The primary author of this package is the Daphne Fish and Wildlife 
Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.95(a), revise the entry for ``Alabama Beach Mouse 
(Peromyscus polionotus ammobates)'' under ``MAMMALS'' to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *

[[Page 5534]]

    (a) Mammals
* * * * *
Alabama Beach Mouse (Peromyscus polionotus ammobates)
    (1) Critical habitat units are depicted for Baldwin County, 
Alabama, on the maps below.
    (2) The primary constituent elements of critical habitat for the 
Alabama Beach Mouse are the habitat components that provide:
    (i) A contiguous mosaic of primary, secondary, and scrub vegetation 
and dune structure, with a balanced level of competition and predation 
and few or no competitive or predaceous nonnative species present, that 
collectively provides foraging opportunities, cover, and burrow sites.
    (ii) Primary and secondary dunes, generally dominated by sea oats 
(Uniola paniculata), that despite occasional temporary impacts and 
reconfiguration from tropical storms and hurricanes, provide abundant 
food resources, burrow sites, and protection from predators.
    (iii) Scrub dunes, generally dominated by scrub oaks (Quercus 
spp.), that provide food resources and burrow sites, and provide 
elevated refugia during and after intense flooding due to rainfall and/
or hurricane-induced storm surge.
    (iv) Functional, unobstructed habitat connections that facilitate 
genetic exchange, dispersal, natural exploratory movements, and 
recolonization of locally extirpated areas.
    (v) A natural light regime within the coastal dune ecosystem, 
compatible with the nocturnal activity of beach mice, necessary for 
normal behavior, growth, and viability of all life stages.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, driveways, lawns, 
swimming pools, and roads, and the land on which such structures are 
located.

Critical Habitat Map Units

    (4) Data layers defining map units were created by delineating 
habitats that contained one or more of the PCEs defined in paragraph 
(2) of this section, over 2001 Baldwin County, Alabama, color 
photography (UTM 16, NAD 83).
    (5) Note: Map 1 (index map) follows.

BILLING CODE 4310-55-P

[[Page 5535]]

[GRAPHIC] [TIFF OMITTED] TP01FE06.082


[[Page 5536]]


    (6) Unit 1: Fort Morgan, Baldwin County, Alabama.
    (i) General Description: Unit 1 consists of 424ac (172 ha) at the 
extreme western tip of the Fort Morgan Peninsula in Baldwin County, 
Alabama. This unit encompasses essential features of beach mouse 
habitat within the boundary of the Fort Morgan State Historic Site and 
adjacent properties west of the Bay to Breakers development. The 
southern and western extents are the mean high water level (MHWL). The 
unit extends northward to either the seaward extent of maritime forest, 
developed features associated with the Fort Morgan State Historic Site, 
or State Highway 180 (here after referred to as Fort Morgan Parkway).
    (ii) Coordinates: From the Fort Morgan and Saint Andrews Bay USGS 
1:24,000 quadrangle maps, Alabama, land bounded by the following UTM 16 
NAD 83 coordinates (E,N):


401473.62, 3344763.21; 401547.57, 3344692.62; 401513.96, 3344669.09; 
401503.87, 3344514.47; 401369.42, 3344440.53; 401577.82, 3344356.49; 
402008.06, 3344443.89; 402169.41, 3344622.04; 402525.70, 3344682.54; 
403820.62, 3344782.93; 404628.95, 3344823.00; 404623.54, 3344330.64; 
404288.09, 3344287.36; 404288.09, 3344758.07; 403995.92, 3344747.25; 
403995.92, 3344233.25; 403292.55, 3344087.17; 402583.77, 3343995.19; 
401269.00, 3343995.19; 400971.42, 3344125.04; 400976.83, 3344206.20; 
401301.47, 3344628.22

    (iii) Note: Unit 1 (Map 2) follows.

[[Page 5537]]

[GRAPHIC] [TIFF OMITTED] TP01FE06.083


[[Page 5538]]


    (7) Unit 2: Little Point Clear, Baldwin County, Alabama.
    (i) General Description: Unit 2 consists of 264 acres (106 ha) on 
the Fort Morgan Peninsula in Baldwin County, Alabama. This unit 
encompasses essential features of Alabama beach mouse habitat north of 
the mean high water line (MHWL) and south of the Alabama Department of 
Environmental Management Coastal Construction Control Line (as defined 
in Alabama Administrative Code of Regulations 335-8-2-0.8) from the 
eastern property boundary of Bay to Breakers eastward to the western 
boundary of the Surfside Shores subdivision. This unit also includes 
essential features of Alabama beach mouse habitat 160 feet south of the 
centerline of Fort Morgan Parkway, from the eastern boundary of Bay to 
Breakers east to the western boundary of the Surfside Shores 
subdivision, and associated areas as depicted in Map 3 and the 
following coordinates.
    (ii) Coordinates: From the Saint Andrews Bay USGS 1:24,000 
quadrangle map, Alabama, land bounded by the following UTM 16 NAD 83 
coordinates (E,N):


408673.97, 3345088.73; 408690.96, 3345050.98; 408964.63, 3345069.85; 
408992.95, 3345115.15; 409098.64, 3345124.59; 409260.96, 3345071.74; 
409306.26, 3345047.20; 409421.39, 3345039.65; 409421.39, 3345018.89; 
409839.57, 3345038.68; 410450.38, 3345133.36; 410638.20, 3345180.70; 
411632.04, 3345331.96; 411819.06, 3345348.96; 411819.06, 3345276.71; 
411455.65, 3345227.83; 411423.77, 3345234.20; 411115.62, 3345195.95; 
410735.21, 3345138.57; 410735.21, 3345117.32; 410129.52, 3345030.18; 
404002.05, 3344787.64; 405929.15, 3344870.87; 406790.26, 3344915.69; 
406790.26, 3344944.50; 406889.49, 3344986.11; 406915.10, 3344986.11; 
406947.11, 3344973.31; 406972.72, 3344998.92; 406998.33, 3344960.50; 
407039.95, 3344973.31; 407065.56, 3344950.90; 407148.55, 3344960.50; 
407232.02, 3345008.52; 407238.42, 3345034.13; 407289.64, 3344954.10; 
407918.85, 3345054.48; 408411.28, 3345026.14; 408414.83, 3345068.65; 
408687.61, 3345125.34; 408723.04, 3345107.62; 406397.69, 3344654.51; 
407290.11, 3344737.53; 408502.15, 3344816.39; 408502.15, 3344974.12; 
408369.32, 3344978.29; 408074.61, 3345003.18; 407842.17, 3344994.88; 
407194.65, 3344878.65; 406327.13, 3344837.15; 406318.83, 3344720.92; 
406181.85, 3344716.77; 406165.25, 3344837.15; 404625.30, 3344770.73; 
408639.12, 3344982.42; 408850.81, 3345011.48, 408850.81, 3344837.15; 
408626.67, 3344828.84; 408904.77, 3345015.63; 409021.00, 3345003.18; 
409033.45, 3344837.15; 408896.47, 3344841.30; 410127.40, 3344881.42; 
409955.26, 3344885.67; 409942.50, 3345003.19; 409321.94, 3344964.94; 
409122.17, 3344994.69; 409122.17, 3344839.55; 409917.00, 3344856.55; 
411885.04, 3344791.03; 411876.74, 3344679.42; 411303.93, 3344704.32; 
410054.54, 3344754.13; 410029.64, 3344741.68; 409992.28, 3344745.83; 
409963.23, 3344758.28; 408879.87, 3344720.92; 407663.69, 3344658.66; 
407157.29, 3344642.06; 406011.67, 3344509.23; 405044.53, 3344417.91; 
404700.02, 3344343.20; 404712.47, 3344496.78

    (iii) Note: Unit 2 (Map 3) follows.

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    (8) Unit 3: Gulf Highlands, Baldwin County, Alabama.
    (i) General Description: Unit 3 consists of 388 acres (157 ha) on 
the Fort Morgan Peninsula in Baldwin County, Alabama. This unit 
encompasses essential features of Alabama beach mouse habitat north of 
the mean high water line (MHWL) to the seaward extent of interdunal 
wetlands as depicted in Map 4 and outlined in the following 
coordinates. This unit also includes essential features of Alabama 
beach mouse habitat 160 feet south of the centerline of Fort Morgan 
Parkway. Unit 3 is bounded to the west by the eastern property line of 
the Morgantown subdivision and to the east by the western property line 
of Martinique on the Gulf.
    (ii) Coordinates: From the Pine Beach and Saint Andrews Bay USGS 
1:24,000 quadrangle maps, Alabama, land bounded by the following UTM 16 
NAD 83 coordinates (E,N):
    Surfside Shores--


411884.85, 3344677.70; 411900.69, 3344899.40; 412122.39, 3344896.76; 
412230.61, 3344952.19; 412407.44, 3344970.66; 412407.44, 3344997.06; 
413286.34, 3345139.58; 413283.70, 3344598.52

    Gulf Highlands--

414393.00, 3344536.62; 414393.00, 3344732.11; 414676.12, 3344736.60; 
414671.63, 3345057.92; 415538.97, 3345096.12; 415529.98, 3344440.00

    Gulf Shores Plantation--


414204.25, 3344552.35; 414204.25, 3344725.37; 414343.57, 3344754.58; 
414341.32, 3344543.36

    Cabana Beach--


415938.37, 3344420.63; 415938.37, 3344937.42; 416333.53, 3344954.65; 
416753.99, 3345042.26; 416756.08, 3344395.60
    ROW--

411829,54, 3345348.68; 413472.87, 3345602.80; 413767.66, 3345609.58; 
413781.21, 3345585.86; 414496.15, 3345582.47; 414760.44, 3345545.20; 
414973.90, 3345460.49; 415278.85, 3345487.60; 416762.94, 3345548.59; 
416796.82, 3345490.99; 416224.19, 3345470.66; 415654.96, 3345426.61; 
414973.90, 3345402.89; 414533.42, 3345521.48; 413621.96, 3345538.42; 
411836.31, 3345284.30

    (iii) Note: Unit 3 (Map 4) follows.

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    (9) Unit 4: Pine Beach, Baldwin County, Alabama.
    (i) General Description: Unit 4 consists of 32 acres (13 ha) on 27 
inholdings within the Perdue Unit of the Bon Secour National Wildlife 
Refuge as depicted in Map 5 and described in the following UTM 
coordinates.
    (ii) Coordinates: From the Pine Beach USGS 1:24,000 quadrangle map, 
Alabama, land bounded by the following UTM 16 NAD 83 coordinates (E,N):


421996.98, 33444458.27; 419890.08, 3344529.29; 4199446.90, 3344526.92; 
419946.90, 3344389.62; 420406.15, 3344394.35; 420401.42, 3344342.27; 
419587.07, 3344320.96; 419589.44, 3344384.88; 419658.09, 3344384.88; 
419655.72, 3344503.25; 419636.78, 3344503.25; 419639.15, 3344534.02; 
419783.19, 3344531.65; 419783.55, 3344384.88; 419803.49, 3344384.88; 
421902.28, 3344929.36; 421933.43, 3344929.36; 421930.69, 3344448.80; 
421895.18, 3344446.43; 421999.34, 3344917.52; 422030.12, 3344917.52; 
422030.12, 3344465.37; 419800.13, 3344730.51; 419842.74, 3344730.51; 
419842.74, 3344635.81; 419797.76, 3344640.55; 419688.86, 3344841.77; 
419740.94, 3344841.77; 419740.94, 3344751.81; 419688.86, 3344749.44; 
419688.86, 3344645.28; 419743.31, 3344642.92; 419740.94, 3344593.20; 
419688.86, 3344595.57; 420294.50, 3345060.66; 420306.84, 3345060.44; 
420306.62, 3345022.12; 420294.28, 3345022.34; 420148.12, 3344725.77; 
420190.73, 3344725.77; 420188.36, 3344633.45; 420150.49, 3344633.45; 
420046.32, 3344728.14; 420098.40, 3344728.14; 420098.40, 3344635.81; 
420046.32, 3344635.81; 420046.32, 3344567.16; 420058.16, 3344567.16; 
420058.16, 3344545.86; 420003.71, 3344545.86; 420003.71, 3344638.18; 
419906.65, 3344638.18; 419927.96, 3344638.18; 419927.96, 3344545.86; 
419906.65, 3344548.22

    (iii) Note: Unit 4 (Map 5) follows.

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    (10) Unit 5: Gulf State Park, Baldwin County, Alabama.
    (i) General Description: Unit 5 consists of 190 ac (77 ha) in Gulf 
State Park east of the City of Gulf Shores in Baldwin County, Alabama. 
This unit encompasses essential features of Alabama beach mouse habitat 
north of the mean high water line (MHWL) to the seaward extent of 
either coastal wetlands, maritime forest, or Alabama beach mouse 
habitat managed under the 2004 Gulf State Park habitat conservation 
plan. Exact boundaries are depicted in Map 6 and displayed in the 
following coordinates.
    (ii) Coordinates: From the Gulf Shores USGS 1:24,000 quadrangle 
map, Alabama, land bounded by the following UTM 16 NAD 83 coordinates 
(E,N):


438247.09, 3347462.61; 438384.26, 3347485.47; 438504.29, 3347456.89; 
438738.63, 3347479.75; 438738.63, 3347411.17; 438681.48, 3347405.45; 
438675.76, 3347193.97; 437681.24, 3346988.21; 436938.21, 3346702.43; 
436349.50, 3346599.55; 435377.85, 3346548.11; 435160.66, 3346490.95; 
435166.37, 3346736.72; 435606.47, 3346856.75; 435623.62, 3346833.89; 
435572.18, 3346731.01; 435629.34, 3346645.27; 435766.51, 3346696.71; 
436018.00, 3346713.86; 436360.94, 3346702.43; 436349.50, 3346765.30; 
436218.05, 3346765.30; 436212.33, 3346799.60; 436572.41, 3346828.17; 
436572.41, 3346913.91; 436881.06, 3347033.94; 436909.64, 3347068.23; 
437612.66, 3347325.43; 437818.42, 3347319.72; 437829.85, 3347251.13; 
438035.61, 3347308.29; 438041.33, 3347394.02

    (iii) Note: Unit 5 (Map 6) follows.

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* * * * *

    Dated: January 18, 2006.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-688 Filed 1-31-06; 8:45 am]
BILLING CODE 4310-55-C