[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Rules and Regulations]
[Pages 4330-4369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-270]



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Part II





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; Designation of Critical 
Habitat for the Alabama Beach Mouse; Final Rule

  Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / 
Rules and Regulations  

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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; Designation of 
Critical Habitat for the Alabama Beach Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are revising 
critical habitat for the Alabama beach mouse (Peromyscus polionotus 
ammobates) under the Endangered Species Act of 1973, as amended (Act). 
The revised designation encompasses approximately 1,211 acres (ac) (490 
hectares (ha)) of coastal dune and scrub habitat in Baldwin County, 
Alabama.

DATES: This rule becomes effective on March 1, 2007.

ADDRESSES: To review comments and materials received, as well as 
supporting documentation used in the preparation of this final rule, 
make an appointment during normal business hours with the Field 
Supervisor, Daphne Field Office, 1208-B Main Street, Daphne, Alabama 
36526. The final rule, economic analysis, and maps are also available 
on the Internet at http://www.fws.gov/daphne.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Daphne Field Office, 
U.S. Fish and Wildlife Service, at telephone 251-441-5181 or facsimile 
251-441-6222. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act (16 U.S.C. 1531 et seq.)

    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 the Act's section 4(b)(2), there are significant 
limitations on the regulatory effect of designation under the Act's 
section 7(a)(2). 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 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 specific actions 
to restore or improve habitat.
    Currently, only 476 species, or 36 percent of the 1,311 listed 
species in the United States under the jurisdiction of the Service, 
have designated critical habitat. We address the habitat needs of all 
1,311 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, non-regulatory 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 originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot). 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 critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. 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

[[Page 4331]]

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. 4321 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

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For information on 
the Alabama beach mouse (ABM), please refer to the proposed rule 
published in the Federal Register on February 1, 2006 (71 FR 5516) or 
the final listing determination (June 6, 1985, 50 FR 23872).

Previous Federal Actions

    Information about previous Federal actions for the ABM can be found 
in our proposal for critical habitat for the ABM published in the 
Federal Register on February 1, 2006 (71 FR 5516). On August 8, 2006, 
we announced the availability of our draft economic analysis (DEA), and 
we reopened the public comment period on the proposed rule and provided 
the time, date, and location of our public hearing, as well as updated 
acreage for the critical habitat units (71 FR 44976). The reopened 
public comment period ended on September 7, 2006.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
critical habitat revision in the proposed rule published on February 1, 
2006 (71 FR 5516) and in our August 8, 2006, Federal Register document 
(71 FR 44976). We also contacted appropriate Federal, State, and local 
agencies; scientific organizations; and other interested parties, and 
invited them to comment on the proposed rule. We also issued press 
releases and published legal notices in the Press-Register and Islander 
newspapers. Based on 12 requests received during the public comment 
period, we held a public hearing and information meeting on August 24, 
2006, at the Adult Activity Center in Gulf Shores, Alabama.
    During the comment period that opened on February 1, 2006, and 
closed on April 3, 2006, we received 13 comments from organizations or 
individuals directly addressing the proposed revised critical habitat 
designation. During the comment period that opened on August 8, 2006, 
and closed on September 7, 2006, we received 45 comments from 
organizations and individuals directly addressing the proposed revised 
critical habitat designation and the DEA. Between February 1, 2006, and 
September 7, 2006, we also received 4 comments from peer reviewers. 
Collectively, 36 commenters supported the proposed revised designation, 
and 16 opposed the revised designation. Six letters were either neutral 
or expressed both support of and opposition to certain portions of the 
proposal. Comments received were grouped into eight general issues 
specifically relating to the proposed revised critical habitat 
designation and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), and current Departmental guidance, we solicited expert opinions 
from six knowledgeable individuals with scientific expertise that 
included familiarity with the species, the geographic region in which 
the species occurs, and/or conservation biology principles. We received 
responses from four of the peer reviewers. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.
    The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule. Three of the 
four peer reviewers specifically stated that redesignation of critical 
habitat to include interior scrub habitat is warranted. Information 
provided by peer reviewers included suggestions for sampling techniques 
and population viability analyses that would better inform future ABM 
conservation efforts, as well as comments on how to best determine 
recovery following hurricanes. Suggestions were also made and language 
was provided to clarify biological information or make the proposed 
rule easier to follow and review.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding ABM 
critical habitat, and addressed them in the following summary. Several 
of the peer reviewers provided editorial comments that are addressed in 
the body of this rule. Minor editorial comments on the Background 
section of the proposed rule (not found in final rules) have been 
incorporated into the administrative record.

Specific Peer Reviewer Comments

    (1) Comment: Two peer reviewers suggested that the ABM may persist 
in areas outside of its present known range, including open, sandy 
portions of Gulf State Park north of the scrub dunes and east of Lake 
Shelby; additional scrub habitat within central and northern portions 
of Little Point Clear; and sand dunes along the Bon Secour National 
Wildlife Refuge's (Refuge) Sand Bayou Unit.
    Our Response: Section 4 of the Act requires that we designate 
critical habitat on the basis of the best scientific data available. We 
agree that the ABM may exist in areas outside of its current known 
range. However, we do not have trapping data indicating ABM presence in 
these areas at this time. Both Little Point Clear and the referenced 
portions of Gulf State Park have been trapped on occasion, or subjected 
to qualitative tracking and habitat surveys (Sneckenberger 2001, p. 13; 
Service 2003, p. 2; Falcy 2006, p. 1). ABM were documented in the 
southern portion of Little Point Clear earlier this summer (Falcy 2006, 
p. 1) but not in more interior areas. We are aware of one qualitative 
survey in the Sand Bayou Unit where no evidence of beach mice was 
encountered (Sneckenberger 2001, p. 14). Much of the referenced areas 
are thickly vegetated, contain compacted sand, are isolated from 
existing known ABM habitat, do not possess the requisite primary 
constituent elements (PCEs) identified in the proposed rule, and are 
therefore not found to be essential to the conservation of the species 
at this time. 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 this reason, critical 
habitat designations do not imply that habitat outside the designation 
is unimportant.
    (2) Comment: One peer reviewer stated that it was inadequate to 
limit ABM critical habitat to those areas known to be occupied at the 
time of listing since much information has been learned about ABM 
distribution since then.
    Our Response: 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

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it is listed, upon a determination that such areas are essential for 
the conservation of the species. For the purposes of this designation, 
we considered all frontal dunes within the proposed units to be 
occupied at the time of listing. Since the ABM was listed, we have 
learned that scrub habitat is also occupied by the subspecies and is 
especially important to beach mouse conservation during and after 
hurricane events (Swilling et al. 1998, pp. 294-296; Sneckenberger 
2001, p. 18). Scrub habitats were included in the designation if they 
are presently occupied, support a core population of beach mice, and 
are now found to be essential to the conservation of the subspecies 
(contain PCEs 3 or 4 or both and are not highly fragmented, degraded, 
or isolated). Areas where mice may exist, but are undocumented, or 
areas where mice have been captured but that do not possess one or more 
of the PCEs or that we have determined not to be essential to the 
conservation of the species, were not included in the designation.
    (3) Comment: One peer reviewer questioned whether there were 
references indicating the PCEs are an appropriate and adequate means to 
evaluate essential requirements for species.
    Our Response: PCEs are those physical and biological features that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. Such requirements 
include: (1) Space for individual and population growth and for normal 
behavior; (2) food, water, air, light, minerals, or other nutritional 
or physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, rearing of offspring, germination, or seed 
dispersal; and (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species. Our knowledge of these requirements for the 
ABM is not absolute, but research and practical experience do provide 
us with information on physical and biological needs of the subspecies.
    Frontal dunes have been recognized as being essential to the 
conservation of the species since the earliest beach mouse research 
(Bangs 1898, pp. 195-200; Howell 1921, p. 239; Howell 1909, p. 61; 
Blair 1951, p. 21; Pournelle and Barrington 1953, pp. 133-134; Bowen 
1968, p. 4), and were the main habitat type represented in the original 
critical habitat designation (June 6, 1985, 50 FR 23872). Trapping data 
continue to illustrate the importance of frontal dunes to ABM (Rave & 
Holler 1992, p. 248; Service 2003, pp. 1-3; Service 2004, p. 16), and 
therefore they are included in our PCEs (PCEs 1 and 2). Recent 
research, however, has illustrated that beach mice use interior scrub 
habitat on a permanent basis, and that this habitat serves an 
invaluable role in the persistence of beach mouse populations during 
and after storm events (Swilling et al. 1998, pp. 294-296; 
Sneckenberger 2001, p. 18). The importance of high-elevation scrub 
habitat to ABM is reinforced by our observations of suitable ABM 
habitat distribution and trapping records following hurricanes Ivan 
(2004) and Katrina (2005) (Service 2004, pp. 9-10; Service 2005a, pp. 
10-13). Therefore, we incorporated high-elevation scrub habitat into 
the PCEs (PCEs 1 and 3). General research supports the effectiveness of 
biological corridors (Beier and Noss 1998, p. 1241), and recent 
population viability analysis work (Traylor-Holzer et al. 2005; 
Traylor-Holzer 2005, pp. 51-57; 2005b, pp. 29-30; Reed & Traylor-Holzer 
2006, pp. 21-22), general observations (for example, extirpation of 
various ABM populations in Gulf State Park (Holliman 1983, pp. 125-126; 
Service 2005, pp. 6-9), and the City of Orange Beach (Endangered 
Species Consulting Services 2001, pp. 1-3) suggest the importance of 
functional pathways for ABM. Based on this information, habitat 
connectivity was prominently featured in the PCEs (PCEs 1 and 4). 
Anthropogenic disturbances in the form of artificial lighting (Bird et 
al. 2004, p. 1435) and the support of nonnative predator populations 
(such as feral cats) (Linzey 1978, p. 20; Holliman 1983, p. 128) are 
known to adversely affect beach mice. We incorporated these issues into 
PCEs 1, 2, and 5. Please refer to the ``Primary Constituent Elements'' 
section for full description of PCEs.
    In summary, we based the PCEs on the best available information of 
the physical and biological needs of the subspecies. Using the PCEs, we 
have identified lands containing all beach mouse habitat types, lands 
that provide only frontal dunes, lands that provide only scrub dune 
habitat, lands that serve to preserve functional connections between 
these habitat types, and lands, within the coastal dune ecosystem, that 
maintain a natural light regime. We believe that these PCEs are based 
upon the best available science, capture those physical and biological 
features essential to the conservation of the species, and represent a 
substantial improvement over PCEs from the original designation. We 
believe these PCEs are an appropriate and adequate means to evaluate 
essential ABM habitat requirements.
    (4) Comment: One peer reviewer suggests that we should better 
describe the effects of disturbance along the utility line corridor 
within the S.R. 180 (Fort Morgan Road) right-of-way (Unit 2 
description, 71 FR 5516, February 1, 2006, p. 5526) to avoid the 
misinterpretation that all disturbance is beneficial to ABM.
    Our Response: We agree and have addressed this in the discussion of 
Unit 2 below (see Unit Descriptions section).
    (5) Comment: One peer reviewer suggests that feral cats should be 
listed as threats requiring special management consideration or 
attention in all units.
    Our Response: Feral cats were originally listed as threats in Units 
2 and 5. Although we agree that the potential for feral cat problems 
exists throughout the known range of the ABM, the special management 
required under critical habitat addresses threats to habitat. 
Therefore, control of feral cats is not specifically mentioned in this 
designation as a threat requiring special management consideration or 
attention. Currently, control of cats is required in all incidental 
take permits involving ABM, and feral cats will continue to be managed 
as part of our efforts towards conservation of the ABM.
    (6) Comment: One peer reviewer suggests that the proposal may 
underemphasize the importance of non-contiguous habitat because 
dispersal likely occurs through inhabitable as well as uninhabitable 
habitat.
    Our Response: The Act requires us to designate critical habitat on 
the basis of the best scientific data available. ABM have been trapped 
in a variety of habitat types including primary and secondary dunes, 
scrub habitat, immediately adjacent to ephemeral wetlands, and along 
sparsely vegetated sand flats associated with roadway rights-of-way 
(Service 2003, p. 2; Farris 2003). With our designation, we have 
included all of these habitat types, and attempted to maintain 
connectivity between them. Neither information in our files nor 
published literature supports other habitat types as being essential to 
the conservation of the ABM. ABM may use uninhabitable habitat such as 
lawns, maritime forest, and permanent wetlands for dispersal, but we do 
not have evidence of this at this time. These habitat types therefore 
do not meet the requirements needed to be included in the critical 
habitat designation. We recognize that designation of critical habitat 
may not include all of the habitat areas that may eventually be

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determined to be necessary for the recovery of the species. Critical 
habitat designations therefore do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    (7) Comment: One peer reviewer stated (in reference to a comment in 
the proposed rule, 71 FR 5516; February 1, 2006; p. 5521) that Oli et 
al. (2001) did not provide any data supporting the value of multiple 
populations.
    Our Response: Oli et al. (2001) performed a population viability 
analysis for four distinct populations of beach mice, two of which were 
ABM populations (Fort Morgan and Perdue Units of the Refuge). Their 
results indicated that even the Perdue Unit population (the most 
robust) was susceptible to extirpation when impacts from catastrophic 
events, such as hurricanes, are considered (p. 114). Later in the 
document, they addressed the importance of multiple populations for 
beach mouse conservation and warned against additional fragmentation of 
habitat (pp. 116-117). While this work was a population viability 
analysis that must be viewed with the appropriate caveats (for example, 
Reed et al. 1998), we believe that it emphasizes the importance of 
multiple core populations and habitat continuity.
    (8) Comment: One peer reviewer, referring to the proposed rule (71 
FR 5516; February 1; p. 5517), stated that Rave and Holler (1992) did 
not address time of activity, burrow location, or feeding habits of 
ABM. This reviewer suggested Bowen (1968) or Garten (1976) as better 
references.
    Our Response: We concur with this comment. Bowen (1968, pp. 2-4), 
Sneckenberger (2001, pp. 51-52), Lynn (2000, pp. 30-33), and Moyers 
(1996, pp. 2, 25-26, 29) all serve as better references and 
collectively describe time of activity, burrow location, and feeding 
habits of beach mice. We have corrected our references. On the other 
hand, Garten (1976), addresses aggressive behavior in inland subspecies 
of Peromyscus polionotus and is, therefore, not applicable.
    (9) Comment: Three peer reviewers and several commenters expressed 
concerns over the exclusion of areas under ABM habitat conservation 
plans (HCPs) from the proposal. Many suggested that HCPs are often 
inadequate, are subject to frequent violations, and/or are less 
protective than critical habitat.
    Our Response: Private lands may be excluded under section 4(b)(2) 
of the Act if the benefits of exclusion outweigh the benefits of 
inclusion. In our view, legally operative HCPs covering the species, or 
draft HCPs that cover the species and have undergone public review and 
comment (pending HCPs), meet this criterion. The HCPs provide 
assurances that the conservation measures they outline will be 
implemented and effective, and the designation of critical habitat 
provides no additional benefits in these areas (species and their 
habitat are protected by the conditions of the incidental take permit 
(ITP) and section 9 of the Act).
    There are 51 areas currently under HCP ITPs collectively containing 
261 ac (105 ha) of habitat we have identified as essential to ABM 
conservation (see Table 2). During HCP development, we worked with all 
property owners to ensure that ABM impacts were avoided, minimized, or 
mitigated to the maximum extent practicable. Property owners with HCPs 
have indicated that they intend to abide by their plan and those with 
Service-issued ITPs based on the HCP are required to comply with the 
ITP. All permits and plans require controlling of cats and refuse, 
planting with native vegetation, minimizing developed footprints, and 
protecting habitat outside of approved footprints. In addition, many of 
the ITPs require seasonal ABM monitoring, the development of ABM 
interpretive materials, and the establishment of endowments for habitat 
restoration. The conditions of the ITPs are legally enforceable, and, 
therefore, ABM and their habitat are protected by section 9 of the Act. 
Critical habitat has no additive value in this situation. In fact, 
critical habitat, often incorrectly perceived to preclude development, 
can adversely affect existing conservation relationships. We, 
therefore, have found that the benefit of excluding areas covered by 
HCPs on 51 properties outweighs the benefit of including these 
properties in the final designation. Please see the ``Application of 
Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the 
Act'' section for a more thorough discussion of HCP sites and critical 
habitat.
    (10) Comment: One commenter, referring to information presented in 
the background section of the proposed rule (71 FR 5516, 5518, and 
elsewhere), stated that there are no known benchmarks for monitoring 
ABM recovery because the habitat is always in a state of flux due to 
hurricane impacts. The commenter suggested using pre-Ivan ABM 
populations to gauge ABM recovery.
    Our Response: ABM habitat is continually changing as a result of 
coastal processes and impacts from tropical cyclones. The Service 
conducted extensive live-trapping throughout the suspected range of the 
subspecies in 2003 (the year prior to Hurricane Ivan) and found ABM in 
areas where they had never been recorded (Service 2003, pp. 1-3; Farris 
2003, pp. 1-5). These trapping data led us to produce the ABM habitat 
maps (discussed in detail in Comment 13) and will be useful in our 
ongoing review of the recovery needs of the subspecies.
    (11) Comment: One commenter, referring to the information presented 
in the background section of the proposed rule (71 FR 5516; February 1, 
2006; p. 5522), stated that they were not aware of data supporting the 
formal definition of ABM population cycles beyond the seasonal 
variation that occurs on an annual basis.
    Our Response: We concur with this statement, and it was our intent 
to provide evidence for the existence of seasonal population cycles in 
the proposed rule. Rave and Holler (1992, pp. 351-352) describe the 
seasonal variation in ABM populations at the Perdue and Fort Morgan 
Units of the Bon Secour National Wildlife Refuge, and Sneckenberger 
(2001, pp. 48-51) describes the seasonal availability of ABM food 
sources in the primary and secondary dunes. ABM populations likely 
fluctuate over a longer temporal period in response to tropical storms 
and hurricanes, but this has never been described in the literature to 
our knowledge.

General Comments

Comments Related to Regulatory Burden and Private Property Concerns
    (12) Comment: Several commenters feel that the proposed critical 
habitat designation is a violation of their property rights. One 
commenter mentioned that critical habitat represents ``condemnation 
without compensation'' and believes that if land is designated, it 
cannot be developed.
    Our Response: Critical habitat does not mean that private lands 
would be taken by the Federal government or that reasonable uses would 
be restricted. The designation of critical habitat does not affect land 
ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. A critical habitat designation has no effect 
on situations where a Federal agency is not involved--for example, a 
landowner undertaking a project on private land that involves no 
Federal funding or permit. The Act only requires a consultation if 
there is a Federal nexus--that is, any activity a Federal agency funds, 
authorizes, or carries out that may jeopardize the survival of a 
threatened or endangered species. The

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designation is a reminder to Federal agencies that they must make 
special efforts to protect the important characteristics of these 
areas. It does not allow government or public access to private lands. 
We evaluated this rule in accordance with Executive Order 12630, and we 
believe that this critical habitat designation for the ABM will not 
have significant takings implications. We do not anticipate that 
property values, rights, or ownership will be significantly affected by 
the critical habitat designation. We determined that the designation 
would result in little additional regulatory burden above that 
currently in place, as the subspecies is already federally listed and 
the areas designated are already occupied by the subspecies. Examples 
of projects that have received permits within critical habitat include 
two single-family homes in the Cabana Beach subdivision and the 
proposed Gulf State Park hotel and convention center. We have also 
conducted consultations on beach nourishment projects and boardwalk 
construction within designated critical habitat. In all of these 
instances, we were able to work with applicants and Federal agencies to 
ensure that projects are completed while still conserving critical 
habitat and the ABM.
    (13) Comment: Several commenters expressed confusion between the 
ABM habitat maps (also known as blue maps) and critical habitat.
    Our Response: In November 2003, after habitat assessments and an 
extensive review of trapping data and aerial photography, the Service 
completed ABM habitat maps. These maps, which currently depict 2,544 ac 
(1,030 ha) of potential ABM habitat, were used to show the public and 
local, State, and Federal agencies those areas that may be occupied by 
ABM, and therefore, to indicate where consultation may be required for 
Federal actions or incidental take permits may be recommended for 
private interests. These maps were made available to the general public 
and are on display at the City of Gulf Shores Public Works Department, 
the headquarters of the Bon Secour National Wildlife Refuge, and the 
Daphne Field Office. They show areas with ABM habitat (where incidental 
take may occur) and were generated by the Service at our own 
discretion.
    The maps associated with this designation are part of a separate 
action. When the ABM was listed, we designated approximately 1,034 ac 
(418 ha) of critical habitat, spread into three zones: (1) Areas south 
of State Road (SR) 180 in the Fort Morgan State Historic Site and some 
adjacent private land, (2) areas 500 feet (ft) (150 meters (m)) inland 
from mean high tide from Kiva Dunes east to Laguna Key, including 
portions of the Bon Secour NWR, and (3) areas south of S.R. 182 in Gulf 
State Park. We are now revising critical habitat as a result of a 
December 2004 declaration filed with the U.S. District Court for the 
Southern District of Alabama (see ``Previous Federal Actions'' above). 
The revised critical habitat designation identifies the subset of ABM 
habitat as depicted in the 2003 habitat maps that has those features 
that, according to the best available science, we have found to be 
essential to the conservation of the species.
    (14) Comment: Several commenters asked what additional requirements 
designated critical habitat placed on individuals seeking ITPs under 
the Act.
    Our Response: ABM are protected from take (by section 9 of the Act) 
and by consultation with Federal agencies on Federal actions (under 
section 7 of the Act), regardless of whether critical habitat is 
designated. When critical habitat is designated, Federal agencies, 
through the section 7 consultation process, must also consult with the 
Service on actions that are likely to result in the destruction or 
adverse modification of critical habitat. For each section 7 
consultation, we already review the direct and indirect effects of the 
proposed projects on the beach mice and currently designated habitat, 
and will continue to do so for revised critical habitat. A critical 
habitat designation does not create a separate process, and timelines 
do not change.
    Our assessment of impacts to habitat is nothing new. In fact, we 
track the take of ABM through the loss of habitat and have always done 
this, even in areas outside of the original critical habitat 
designation, through the use of our ABM habitat maps (see Comment 13).
    (15) Comment: One commenter asked if designation of critical 
habitat would preclude an individual from reconstructing or repairing a 
house following hurricanes.
    Our Response: Just as with previous storms, homeowners can rebuild 
their structures within their previous footprints without the need for 
consultation, permits, or mitigation. If a homeowner wishes to expand 
the footprint of the structure during the rebuild and this will impact 
previously undeveloped ABM habitat, we recommend that the homeowner 
apply for an ITP (regardless of whether the ABM habitat is designated 
critical). Please contact the Daphne Field Office (see ADDRESSES or FOR 
FURTHER INFORMATION CONTACT) for more information on ITPs and HCPs.
    (16) Comment: One commenter asked what would happen if a lot owner 
had received a ``clearance'' letter from the Service stating that no 
ITP was required but then has his or her property designated as 
critical habitat.
    Our Response: Landowners requesting technical assistance from the 
Service may receive such a letter if review of their project by Service 
personnel (either through on-site or in-house investigation) determines 
that the parcel falls outside the boundaries of potential ABM habitat 
(see Comment 13 for more discussion on ABM habitat mapping). When areas 
are investigated and found to not contain ABM habitat, they are removed 
from our ABM habitat maps. Because the proposed critical habitat was 
based on these ABM habitat maps, it is not likely (though not 
impossible) that lots with clearance letters appeared in the proposed 
designation. If a lot with a clearance letter does appear, it may have 
been an error, and we recommend that the homeowner contact the Daphne 
Field Office (see ADDRESSES).
    (17) Comment: One commenter questioned why the Service is 
designating critical habitat when we admit that we have found it to be 
of little value.
    Our Response: While attention to and protection of habitat are 
paramount to successful conservation actions, the role that designation 
of critical habitat plays in protecting the habitat of listed species 
is often misunderstood. A designation of critical habitat does not 
create a preserve or refuge. It does not mandate funding for habitat 
protection or restoration. It simply requires that Federal agencies 
consult with the Service on actions that could adversely modify or 
destroy designated critical habitat. Federal agencies are already 
required to consult with the Service on proposed actions that may 
adversely affect or jeopardize threatened and endangered species, 
regardless of whether or not there is critical habitat. Furthermore, we 
monitor the health of ABM populations through the loss of habitat, 
regardless of whether or not that habitat is designated as critical. 
Critical habitat does provide some non-regulatory benefits to the 
species by informing the public of areas that are important for species 
recovery and where conservation actions would be most effective. 
However, because of the enormous time, cost, complexity, and potential 
for controversy associated with critical habitat, we have found that 
there is much more value to directing limited conservation monies to 
listing new species under the Act, and developing cooperative 
agreements to

[[Page 4335]]

protect them. We have been inundated with lawsuits for our failure to 
designate critical habitat and face a growing number of lawsuits 
challenging our designations. This revision of critical habitat was 
brought about by a petition to revise critical habitat and subsequent 
legal action. This cycle appears endless and keeps us from focusing 
scarce conservation resources where they are most needed. Nonetheless, 
under section 4(a) of the Act, we are required to designate critical 
habitat concurrently with listing a species as endangered or threatened 
to the maximum extent prudent and determinable.
    (18) Comment: One commenter said that the Service was wrong in 
saying that a clear ``Federal nexus'' (71 FR 5516, 5530) exists on HCP/
ITP sites. The commenter maintains that the only Federal involvement 
that remains is the Service's ability to enforce ITP conditions.
    Our Response: We used the term nexus (a synonym for connection or 
link) to demonstrate that once ITPs are issued, the Service is still 
involved in monitoring permittee compliance with permit terms and 
conditions on sites and retains the ability to enforce ITP conditions. 
We have rewritten this text and omitted the term nexus, which is 
frequently used in section 7 consultations, to avoid any further 
confusion.
    (19) Comment: One commenter stated that the habitat for this 
species is under such pressure that, unless regulations protect 
habitat, it is likely that the subspecies will decline.
    Our Response: We acknowledge that loss and fragmentation of habitat 
is one of the main threats to ABM (71 FR 5516; February 1, 2006; p. 
5518). Please refer to our response to Comment 17 for more information 
on the regulatory value of critical habitat.

Specific Comments Related to Suggested Alternatives to Designating 
Critical Habitat

    (20) Comment: Several commenters believe that the Federal 
government presently owns sufficient habitat for ABM survival and 
recovery.
    Our Response: We have determined that 2,281 ac (923 ha) of land are 
essential to ABM conservation. Roughly 50 percent of this is public 
land owned by the Federal government. The majority of this (47 percent) 
is owned by the Service and located on the Perdue Unit of Bon Secour 
National Wildlife Refuge, but lesser amounts include approximately 30 
ac (12 ha) of Refuge land within Fort Morgan State Historic Site and 
Bureau of Land Management (BLM) properties spread throughout the middle 
of the Fort Morgan Peninsula. ABM habitat in the Perdue Unit does not 
meet the definition of critical habitat under section 3(5)(A) of the 
Act because it is protected under the Refuge's Comprehensive 
Conservation Plan (see ``Application of Exclusions Under Section 
4(b)(2) of the Act'' section for more details). The remainder of the 
Federal lands identified as essential to the conservation of the 
species are included as critical habitat.
    Of the various federally owned parcels on the Fort Morgan 
Peninsula, the Perdue Unit is the only Federal land containing all of 
the PCEs. It likewise sustains an ABM population. However, the Perdue 
Unit is just one of several ABM populations, and many studies indicate 
the importance of multiple populations to species recovery. 
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, p. 50). 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 
(Wooten & Holler 1999, p. 17). This loss of genetic variability cannot 
be regained through translocations or other efforts.
    We believe that private lands are essential to the conservation of 
multiple populations and therefore essential to conservation of the 
subspecies. Two population viability analyses conducted on the ABM 
support this theory. Oli et al. (2001, pp. 113-114) suggest that when 
hurricanes are considered, even the stable ABM population at the Perdue 
Unit is at ``substantial risk.'' A Population Viability Analysis (PVA) 
conducted by the Conservation Breeding Specialist Group (Vortex model) 
likewise shows the importance of both total overall habitat, and 
habitat continuity. Without dispersal among public lands through 
private lands, the PVA results project the ABM to have a 41.2 percent 
 1.1 percent likelihood of extinction (Traylor-Holzer 2006, 
p. 20). If all privately owned habitat between the public lands is 
lost, the estimate of probability of extinction increases (Traylor-
Holzer 2006, p. 20). There are many limitations with population 
viability analyses, and we must view estimates of extinction 
probability with caution (Reed et al. 2006; Morris and Doak 2002, pp. 
12-13). However, we believe that these estimates emphasize the 
importance of core populations and habitat continuity. This maintenance 
of both core populations and habitat continuity would not be possible 
without the conservation of habitat on private lands connecting the 
various federally owned properties.
    (21) Comment: Several commenters suggested that the ITPs issued to 
Beach Club West and Gulf Highlands developments (but currently held in 
abeyance) should have been excluded either because they do not meet the 
definition of critical habitat in 3(5)(A) or they are eligible for 
exclusion under 4(b)(2).
    Our Response: These developments have been excluded from the final 
designation of critical habitat under section 4(b)(2) of the Act based 
on their conservation efforts (including the habitat conservation 
plan). Please see the ``Application of Exclusions Under Section 4(b)(2) 
of the Act'' section for more information.
    (22) Comment: One commenter questioned why the areas south 
(seaward) of ADEM's Coastal Construction Control line (CCCL) were not 
excluded because of the baseline protections.
    Our Response: While it is true areas seaward of the CCCL receive 
protection from the State, they do not qualify for exclusion under 
section 4(b)(2) of the Act. There is no species-specific management 
plan addressing ABM issues (see Comment 2 or ``Application of 
Exclusions Under Section 4(b)(2) of the Act'' section for more 
information on these criteria). Furthermore, many threats to beach 
mouse conservation, including artificial lighting and extensive 
recreational pressure, still persist there. Therefore, these areas have 
been included as critical habitat.
    (23) Comment: Two commenters suggested that the Service should 
designate only the conservation areas of sites with a Service-approved 
HCP.
    Our Response: If an area meets our criteria for designating ABM 
critical habitat (see Comment 2), then it is eligible for inclusion in 
critical habitat. If the area is covered by a Service-approved HCP, 
then it may be removed from the designation under section 4(b)(2) of 
the Act if we determine that the benefits of excluding HCPs outweigh 
the benefits of inclusion (see Comment 2 and ``Application of 
Exclusions Under Section 4(b)(2) of the Act'' section). Developed areas 
(for example, building footprints and parking areas) associated with 
the HCP do not possess natural ABM habitat and are, therefore, not even 
considered for designation. As such, it is specifically the 
conservation areas associated with HCPs that are excluded under section 
4(b)(2).

[[Page 4336]]

    (24) Comment: Several commenters noted that the French Caribbean 
development was not mentioned as critical habitat and maintain that it 
is eligible for exclusion under 4(b)(2) of the Act.
    Our Response: The Service completed a formal consultation under 
section 7 of the Act on January 20, 2000, with the U.S. Army Corps of 
Engineers (USACOE) for the French Caribbean resort. We issued an 
incidental take exemption for all ABM within a 3.7 acre project impact 
area. The wetland fill permit issued for this project expired in 2005. 
However, the developers of Beach Club West and Gulf Highlands have 
agreed not to pursue this project, and the French Caribbean site will 
now be part of the conservation area in their HCP. It is being excluded 
under section 4(b)(2) of the Act (see ``Application of Exclusions Under 
Section 4(b)(2) of the Act'' section for more details).
    (25) Comment: One commenter suggested that conservation efforts 
should be voluntary and involve partnerships instead of designating 
lands as critical habitat.
    Our Response: The Service encourages voluntary conservation efforts 
and partnerships that would provide management or enhancement of 
habitat for threatened and endangered species. However, designation of 
critical habitat does not influence the extent of conservation efforts 
recommended for endangered species habitat on public lands. One benefit 
of the critical habitat designation process is the increased awareness 
to the public of the importance that public lands have for the species. 
This often leads to constructive interagency discussions, creative 
solutions to public use and habitat management issues, and strengthened 
partnerships.
    (26) Comment: One commenter suggested that the proposed rangewide 
HCP with the City of Gulf Shores should be excluded from critical 
habitat under section 4(b)(2) to promote regulatory certainty and 
cooperative conservation.
    Our Response: The State of Alabama was awarded monies under our 
Habitat Conservation Planning grants program to develop, in conjunction 
with the Service, a rangewide HCP for single-family home and duplex 
developments. The funds were provided to the City of Gulf Shores. This 
HCP is still in draft form and has not yet undergone public review. The 
draft HCP could potentially cover all future single-family and duplex 
projects on the Fort Morgan Peninsula (approximately 700 lots), and 
would substantially streamline the HCP-ITP process for this class of 
development. Existing landowners, and those wishing to add to their 
houses, would also be eligible for inclusion. Upon signing a 
certificate of inclusion into the rangewide program, landowners would 
be required to pay a one-time conservation fee that would apply towards 
ABM conservation projects such as cogongrass (Imperata cylindrica) 
removal or the construction of boardwalks. The rangewide HCP would, 
therefore, provide more mitigation funding and options than 
traditional, individual ITPs.
    While we acknowledge the City of Gulf Shores' efforts in developing 
this draft plan, we are unable to exclude it from critical habitat at 
this time for two reasons: (1) The plan has not yet been completed or 
undergone public review and (2) enrollment in the plan is voluntary, 
and there is, therefore, no way to know which landowners will choose to 
enroll (this is further complicated by areas having the potential to be 
rezoned to higher density development). The designation of critical 
habitat should not jeopardize the development of the rangewide HCP. The 
Service, in conducting its biological review of the rangewide HCP, will 
simply have to determine if the proposed project will adversely modify 
or destroy designated critical habitat. We already have to determine 
whether or not the project will adversely affect or jeopardize the ABM, 
an action informed by analyzing impacts to ABM habitat, regardless of 
whether or not critical habitat is designated. We look forward to 
continuing our conservation relationship (and HCP-ITP streamlining 
efforts) with the City of Gulf Shores and working with it to ensure 
that the rangewide HCP does not adversely modify critical habitat.
    (27) Comment: One commenter suggested that the Service develop a 
procedure for exempting (excluding) future HCPs from designated 
critical habitat.
    Our Response: Critical habitat is a rulemaking process, and any 
future changes to critical habitat would involve additional rulemaking. 
Because this is expensive and consumes large amounts of already limited 
staff time, it is not practical to exclude every future approved HCP 
case by case. We can only exclude those properties that meet our 
standards for either exemption or exclusion under 3(5)(A) or 4(b)(2) of 
the Act before the publication date of this final rule.
    (28) Comment: One commenter stated that the failure to exclude 
areas from critical habitat will result in a more onerous (and far less 
effective) Act by damaging relationships between the Service and the 
public and imposing unnecessary regulation.
    Our Response: We agree that critical habitat is often misunderstood 
and results in controversy (see our response to Comment 17). However, 
we will continue to work with the general public and affected agencies 
to recover the ABM and assist landowners with the environmental review 
of their projects to the best of our ability. We are excluding 51 areas 
covered by HCPs-ITPs from this designation (see response to comment 9 
and the ``Application of Exclusions Under Section 4(b)(2) of the Act'' 
section).

Comments Related to Criteria and Methods Used To Designate Critical 
Habitat

    (29) Comment: One commenter stated that the designation appears 
arbitrary and questions how areas were selected for designation.
    Our Response: We began our designation by determining those areas 
known to be occupied by the species at the time of listing and those 
found to be occupied since listing. This was determined by consulting 
live-trapping data, published literature, the original listing rule, 
and our ABM habitat map (see response to Comment 13). Within these 
areas, we then determined the subset of acreage that possessed one or 
more of the PCEs. This was determined through site visits, the review 
of 2001 and 2005 aerial photography, LIDAR topographic data, and 
hurricane storm surge models. We then removed any areas that were 
highly isolated, fragmented, or degraded. After this, we were left with 
2,281 ac (923 ha) of ABM habitat considered to be essential to the 
conservation of the subspecies. After removing areas that do not meet 
the definition of critical habitat under section 3(5)(A) of the Act 
because special management is not needed, or that are eligible for 
exclusion under section 4(b)(2), we arrive at the current designation 
of 1,211 ac (490 ha) of critical habitat. Please see the ``Criteria 
Used To Identify Critical Habitat'' section for more information. 
Please note that not all ABM habitat meets these criteria. Many areas 
that are small and isolated (for example, along S.R. 180 north of the 
Perdue Unit), degraded by anthropogenic disturbances such as gravel 
contamination, are highly fragmented or have light pollution (for 
example, areas in the Little Point Clear Unit between the S.R. 180 
corridor and the CCCL line) may contain mice, but may be population 
sinks and therefore, do not have the features that are essential to the 
conservation of the species. We are identifying the subset of

[[Page 4337]]

ABM habitat that is truly essential to the continued survival and 
conservation of the subspecies.
    (30) Comment: One commenter stated that the proposed critical 
habitat seems to be based on the Vortex population viability analysis 
conducted for the subspecies, which has problems, including an 
unrealistically high estimated probability of persistence.
    Our Response: Our criteria for deciding what areas would be 
included in the designation did not involve the Vortex model directly, 
but rather an analysis of trapping records in conjunction with mapping 
tools (please see previous comment). However, the results from Vortex, 
coupled with other PVAs (Oli et al. 2001) and published literature, led 
us to incorporate habitat continuity into the designation.
    (31) Comment: Two commenters questioned how the exclusion of 
habitat on the Refuge will not result in the extinction of the 
subspecies.
    Our Response: In the proposed rule, we stated that approximately 
1,063 (420 ha) of ABM habitat on the Perdue Unit of the Refuge was 
essential to ABM conservation, but did not meet the definition of 
critical habitat under section 3(5)(A) of the Act (71 FR 5516, 5529). 
We have reduced this area to 807 ac (327 ha) based on new tracking 
(Leblanc D., Service, Personal Communication 2006) and trapping (Falcy 
2006) data, detailed review of 2005 aerial photography, and subsequent 
site visits. Much of the northwestern Perdue Unit is densely vegetated 
and highly fragmented by wetlands and cannot be considered essential to 
ABM conservation at this time. The 807 acres (327 ha) that we 
identified as essential to the conservation of the species simply do 
not meet the definition of critical habitat under 3(5)(A) of the Act. 
These areas are part of a National Wildlife Refuge that manages 
specifically for ABM conservation, and therefore do not require special 
management considerations or protection. They are available for ABM 
conservation in perpetuity, and their exemption from critical habitat 
has no bearing on the continued survival and recovery of the species.
    (32) Comment: Several commenters maintained that more habitat needs 
to be included, or that conservation is not just described in the Act 
as protecting the status quo but as eventually removing the subspecies 
from the list (recovery).
    Our Response: Through this critical habitat revision, we have 
identified all of the areas that we believe, according to the best 
available science at this time, have the features that are essential to 
the conservation of the species or, for areas not occupied at the time 
of listing, that are essential to the conservation of the species. 
These areas total 2,281 acres. Of this acreage, we are designating 
those areas that meet the definition of critical habitat (see Comment 
2) and that are not protected by secure habitat conservation plans. 
Some areas that are occupied by ABM are not included in the 
designation. These areas do not meet the criteria for inclusion and, 
therefore, do not have the features that are essential to the 
conservation of the species. The designation, when combined with ABM 
habitat on the Perdue Unit of the Refuge and the areas excluded because 
of conservation plans, represents the best remaining coastal dune and 
scrub habitat in coastal Alabama, and those areas that contain the 
physical and biological features essential to the conservation of the 
subspecies.
    (33) Comment: Several commenters requested that we remove our 
statement that ``a benefit of excluding HCPs is to promote additional 
conservation agreements and actions that we would not be able to 
achieve without our partners.''
    Our Response: We believe this statement to be true. There is no 
need to designate areas that are included in an HCP that provides 
conservation benefit to the species. The designation of critical 
habitat serves no additive value and can damage existing relationships 
between the permittee and our agency.
    (34) Comment: One commenter questioned why only a small subset of 
the acreage identified as ABM habitat is being designated as critical 
habitat.
    Our Response: Not all areas where ABM have been captured meet our 
criteria for inclusion into the designation. Please refer to Comments 
13 and 29 for more information.
    (35) Comment: One commenter maintains that critical habitat was 
designated south of the CCCL and along the S.R. 180 corridor because it 
was convenient. Several commenters questioned the value of the habitat 
south of the CCCL.
    Our Response: Habitat was designated between S.R. 180 and the CCCL 
within Unit 2 because it provides natural connectivity between two core 
ABM populations: Fort Morgan and the Gulf Highlands-Perdue Unit. These 
stretches of frontal dunes, scrub habitat, and open sand flats contain 
less gravel debris, human structures, and artificial light than the 
neighborhoods between the two east-west pathways. Unit 2 was designated 
primarily on the basis of PCE 4, while some areas also contain PCEs 2 
and 3. Areas south of the CCCL, while overwashed and flattened by 
multiple storms in 2004 and 2005, are recovering natural topography and 
vegetation and provide both ABM habitat and east-west habitat 
continuity (PCEs 2 and 4). See ``Primary Constituent Elements'' 
discussion.
    (36) Comment: One commenter stated that the proposal does not 
explain PCEs in sufficient detail to allow their protection during the 
consultation process.
    Our Response: The original PCEs for the ABM were defined as ``dunes 
and interdunal areas, and associated grasses and shrubs that provide 
food and cover (June 6, 1985, 50 FR 23884).'' We believe that the new 
PCEs contain greater detail, are more comprehensive, and represent a 
significant improvement over the PCEs from the original designation. 
They also incorporate disturbances from storms, allowing PCEs to be 
readily identified even following damage from tropical cyclones and 
freshwater flooding. We therefore believe the PCEs to be easily 
identified (under all conditions) during the consultation process.
    (37) Comment: Several commenters suggested removing PCE 5 on the 
basis that a natural light regime could be found in any location that 
is not developed.
    Our Response: Excessive artificial light has been shown to be 
detrimental to beach mice, and, therefore, a natural light regime is a 
physical feature essential to ABM conservation. 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) or is 
currently occupied by ABM and has been determined to be essential to 
the conservation of the species. Therefore, no areas were identified as 
essential to ABM conservation based solely on a natural light regime.

Comments Related to Mapping

    (38) Comment: One commenter asked how much of the Surfside Shores 
subdivision is within the critical habitat boundaries.
    Our Response: We are designating approximately 75 ac (30 ha) of ABM 
habitat within Surfside Shores. Designated critical habitat generally 
stretches from the mean high water line landward to the wetland swale 
located between Driftwood and Palmetto Drives, and from Kiva Dunes in 
the east to Morgantown in the west. Housing footprints, driveways, and 
small areas or lots that do not contain one or more

[[Page 4338]]

PCEs are not included in the designation. UTM coordinates and general 
maps of the designation are found below. Consult our Web site at http://www.fws.gov/daphne, or visit the Refuge headquarters, 12295 State 
Highway 180, Gulf Shores, or our Daphne Field Office (see ADDRESSES) 
for detailed aerial photography outlining the designation.
    (39) Comment: One commenter stated that the proposed rule should 
have contained maps and details of the original designation, so that 
readers could better assess changes between the original (1985) and 
revised designations.
    Our Response: The original designation of critical habitat, 
encompassing approximately 1,034 acres of primary and secondary dunes 
and 10.6 miles (17 km) of coastline, was published in the Federal 
Register on June 6, 1985 (50 FR 23872). Maps of the original 
designation are in the public domain and, therefore, were not 
reprinted. These maps were available for public inspection at the field 
office during both comment periods.
    (40) Comment: One commenter stated that the area north of Adair 
Lane in the Cabana Beach subdivision did not contain PCEs.
    Our Response: We visited Adair Lane and agree with this assessment. 
Habitat north of Adair Lane consists of a wetland swale with intermixed 
maritime forest dominated by young pine trees. We have revised the 
designation in this area to include only those areas south of Adair 
Lane. We also removed an area along the S.R. 180 corridor between 
Veterans Road and Martinique that is actually maritime forest, and does 
not contain the requisite PCEs. These changes resulted in approximately 
10 ac (4 ha) being removed from the designation. Please see the 
``Summary of Changes from Proposed Rule'' section and maps for more 
information.
    (41) Comment: One commenter pointed out that a small portion of 
land along S.R. 180 identified as not meeting the definition of 
critical habitat because it is part of Refuge property is actually 
private. Two commenters maintain there are plans to develop this 
property, and, therefore, it must be included in critical habitat.
    Our Response: We have reduced the area of the Refuge identified as 
having the features essential to the conservation of the species from 
1,063 (430) ha to 807 acres based on new information (see Comment 31 
and ``Summary of Changes from Proposed Rule'' section). Approximately 
20 ac (8 ha) of ABM habitat exists in the referenced area, of which 
approximately 13 ac (5 ha) are in private ownership. This habitat patch 
is approximately 0.4 miles (0.6 kilometers) east and 0.4 miles (0.6 
kilometers) north of other areas identified as essential to the 
conservation of the subspecies, and therefore isolated. We have 
eliminated it from critical habitat. Trapping along the S.R. 180 right-
of-way here in 2003 yielded no beach mouse captures (Farris 2003). 
However, this area is still included in our ABM habitat maps (see 
Comment 13) and any mice occurring there are protected under section 7 
or section 9 of the Act. Impacts to ABM habitat there will still have 
to be reviewed by the Service.
    (42) Comment: One commenter questioned our assertion that the 
proposed critical habitat was spread evenly throughout the historic 
range of the subspecies.
    Our Response: In the proposed rule (February 1, 2006; 71 FR 5516), 
we suggested that critical habitat was spread evenly throughout the 
historic range of the subspecies. This was in error. The critical 
habitat is distributed throughout the western range of the subspecies, 
with a small portion (Unit 5) being found in the center of the historic 
range. Much of the eastern and central portions of the range no longer 
possess ABM or ABM habitat due to development.

Comments Related to Site-Specific Areas

    (43) Comment: Critical habitat designation along the S.R. 180 (Fort 
Morgan Road) corridor would preclude utility companies from rapidly 
accessing lines in the event of a water or sewer line break.
    Our Response: Critical habitat designation would not interfere with 
these activities. When critical habitat is designated, Federal agencies 
are required to confer with the Service on any action (including 
actions that agencies carry out themselves, fund, or authorize) that is 
likely to result in destruction or adverse modification of critical 
habitat. The routine maintenance or emergency repair of water and sewer 
lines adjacent to Fort Morgan Road is not a Federal action. 
Furthermore, utility line maintenance may actually benefit ABM 
conservation by thinning out dense vegetation (see Unit 2 description 
below).
    (44) Comment: Several commenters questioned why Gulf State Park 
should be included in the proposal when there are currently no ABM and 
the habitat is susceptible to flooding during hurricane events.
    Our Response: Critical habitat in Gulf State Park represents the 
easternmost extent of the present-day ABM range. Gulf State Park was 
occupied at the time of listing, and possesses all PCEs except PCE 5. 
While ABM have twice been extirpated from the site (see Unit 5 
description below) it nonetheless possesses the physical and biological 
features essential to the conservation of the subspecies. Hurricanes 
are one of the main threats to the ABM (June 6, 1985; 50 FR 23879-80; 
Service 2004, 2005). Because the ABM is a narrowly endemic subspecies 
restricted to less than 34 miles of coastline, one major hurricane 
could easily affect the entire range of the species. Impacts within 
individual hurricanes, however, can vary greatly in intensity, and wide 
fluctuations in storm surge and wave run-up are possible depending on 
bathymetry, beach configuration, and variations in wind speed and waves 
within the storm. Protecting multiple populations, representative of 
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. The history of the closely 
related Perdido Key beach mouse clearly illustrates the need for 
multiple populations (a now potentially extirpated population was the 
source of the two remaining populations of the subspecies (Holler et 
al. 1989, pp. 398-399)). Furthermore, Gulf State Park, which, although 
isolated, is capable of holding a self-sustaining population of mice 
due to its size, could prove important in the event of unforeseen 
threats to connected populations on the Fort Morgan Peninsula, such as 
disease.
    (45) Comment: Several commenters questioned why areas of the S.R. 
180 right-of-way south of the road were designated, but areas to the 
north were not.
    Our Response: The State of Alabama owns the S.R. 180 right-of-way. 
State ownership extends 160 ft (49 m) both north and south of the 
roadway centerline. Scrub habitat to the south is generally more open 
and, therefore, more suitable for ABM. Accordingly, it was included in 
this revised designation. In fact, several more open areas to the north 
were also included, especially in the western portions of Unit 2 and 
Unit 3. We have updated our Unit 2 and 3 descriptions to include 
commentary on these small sections north of the roadway.
    (46) Comment: One commenter stated that feral cats are a major 
threat to ABM and provided an example of a cat population within Gulf 
State Park on Perdido Key at the entrance to Ono Island.

[[Page 4339]]

    Our Response: This comment refers to a problem with a feral cat 
colony on Perdido Key, which is outside the range of the ABM and 
involves the endangered Perdido Key beach mouse (Peromyscus polionotus 
trissyllepsis). The comment was addressed in the recent final rule 
designating critical habitat for three Gulf Coast beach mice, which 
included the Perdido Key beach mouse (October 12, 2006; 71 FR 60237). 
We concur that feral cats are a major threat to beach mice. Cat 
colonies may have led to the extirpation of Alabama and Perdido Key 
beach mice (Linzey 1978, p. 20; Holliman 1983, p. 128). For this 
reason, incidental take permits issued for ABM contain conditions 
specifically addressing control of cats.

Specific Comments Related to the Draft Economic Analysis (DEA)

    (47) Comment: Several commenters believe that the Service should 
not take economic impacts into consideration when designating critical 
habitat.
    Our Response: 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. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless he determines, based on 
the best scientific data available, that the failure to designate such 
area as critical habitat will result in the extinction of the species. 
In making that determination, the Secretary is afforded broad 
discretion and the Congressional record is clear that in making a 
determination under the section the Secretary has discretion as to 
which factors to consider and how much weight will be given to any 
factor.
    (48) Comment: One commenter stated that the Service's failure to 
release the economic analysis simultaneously with the proposed rule 
frustrates the public's attempt to meaningfully comment on the critical 
habitat being proposed.
    Our Response: We acknowledge this concern; however, the Service 
strives to keep the comment period on a draft economic analysis open as 
long as possible to allow the public time to review and comment on the 
draft economic analysis. The public was given a chance to comment on 
the DEA concerning our proposed revised critical habitat designation 
for ABM during our second public comment period from August 8, 2006, to 
September 7, 2006.
    (49) Comment: Several commenters stated that the Service has 
already made exclusions based on economics prior to the availability of 
a DEA (and in violation of the Administrative Procedure Act).
    Our Response: The exclusions proposed under section 4(b)(2) of the 
Act in the proposed rule were based on secure HCPs, not on economic 
data. We did not have a DEA ready for public review until August 8, 
2006, and the comment period on the DEA did not end until September 7, 
2006.
    (50) Comment: One commenter states it is puzzling that the Service 
is imposing economic hardship in light of other Federal government tax 
incentives (Gulf Opportunity Zone Act of 2005).
    Our Response: This designation is non-discretionary and was in 
motion well before the Gulf Zone Act of 2005. We have considered the 
economic impacts of the designation.
    (51) Comment: One commenter requests the areas covered by the 
proposed rangewide HCP be excluded from critical habitat due to 
economic reasons.
    Our Response: Please refer to Comment 26. Because enrollment in the 
proposed rangewide HCP would be voluntary, we do not know which areas 
would actually be covered by it.
    (52) Comment: One commenter asserts the DEA does not support 
certification under the Regulatory Flexibility Act, and an Initial 
Regulatory Flexibility Analysis should be prepared and reviewed by the 
public.
    Our Response: We have considered whether this designation would 
result in a significant economic effect on a substantial number of 
small entities. We have determined that it is not likely to affect a 
substantial number of small entities. Federal involvement, and thus 
section 7 consultations, would be limited to a subset of the area 
designated. The most likely Federal involvement could include: Corps 
permits, permits we may issue under section 10(a)(1)(B) of the Act 
(ITPs), FHA funding for road improvements, and activities funded by 
FEMA. A regulatory flexibility analysis is not required. Please refer 
to the Required Determinations section for further information.
    (53) Comment: One commenter states the mission of the Service is to 
protect wildlife, not give considerations to economic impact.
    Our Response: Although economics may not be considered when listing 
a species, Congress has expressly required this consideration when 
designating critical habitat.
    (54) Comment: One commenter expressed concern that the estimated 
costs for Beach Club West and Gulf Highlands were overstated and that 
this may result in the two developments incorrectly being excluded from 
critical habitat for economic reasons.
    Our Response: Section 3 of the final economic analysis (EA) 
estimates impacts to the Beach Club West and Gulf Highlands development 
projects. The developments were analyzed in the context of potential 
costs which they may incur as a result of ABM conservation efforts, but 
they were not excluded for economic reasons.
    (55) Comment: Multiple commenters assert that the DEA 
underestimates the economic impact of critical habitat on specific 
projects and the local economy, as described in a study by Klages 
(2006). The Klages study is a report commissioned by private and public 
entities with an interest in development activities on the Fort Morgan 
Peninsula. The study estimates the impacts on the local economies of 
Baldwin County and Gulf Shores, Alabama, that could be generated by 
proposed development of properties on the Fort Morgan Peninsula 
potentially affected by the proposed critical habitat designation for 
the ABM.
    Our Response: Section 3 of the EA provides a discussion of the 
Klages study. As stated in Section 3 of the EA, the Klages study 
provides useful context for understanding development activity along 
the peninsula. Both the Klages study and the EA rely upon the same 
information concerning the extent of developable properties and the 
type of development that may occur. The Klages study and the EA differ, 
however, in certain base assumptions and methods for quantifying 
impacts. Most significantly, the EA assumes that development will 
proceed, but that ABM conservation efforts will cause incremental 
delays in development activities and land set-asides, or lower the 
number of residential units, as well as produce other direct costs. The 
Klages study posits that no development will occur on vacant parcels 
within critical habitat designation, and then employs a form of input-
output modeling to measure revenue and other effects of foregone 
development. In the Klages study, it is unclear what specific 
properties are determined to be precluded from development. Therefore, 
the specific study area may be different than the critical habitat 
designation. These differences affect the impact estimates as follows: 
First, the impacts identified in the Klages study are higher than those 
presented in the EA. The Service agrees that, while potential impacts 
on development are significant,

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it is unlikely that all development activity would be prohibited within 
the bounds of critical habitat. Despite these differences in absolute 
impacts, however, the study and the EA are consistent with respect to 
``relative'' impacts across different parcels and different types of 
development. That is, development locations identified as experiencing 
high impacts in the Klages study also experience high impacts in this 
economic analysis. The same result holds for locations identified as 
having relatively low impacts.
    (56) Comment: Various commenters stated the economic analysis 
should not be based on the Klages study because it was paid for by 
developers and is, therefore, biased.
    Our Response: The DEA is not based on the Klages study. Section 3 
of the DEA provides a discussion of the Klages study; however, the DEA 
does not use the information in the Klages study to estimate impacts of 
conservation efforts for the ABM within critical habitat.
    (57) Comment: One commenter states the economic analysis 
overestimates the economic impacts of critical habitat. Specifically, 
the commenter states no highway project will occur within the Highway 
180 right-of-way, only a small number of projects will occur seaward of 
the construction control line (CCL), and there have been no residential 
housing units lost due to conservation efforts for the ABM.
    Our Response: The DEA may overestimate the economic impact of 
critical habitat because it looks at all the costs of conserving beach 
mice. Some of the costs might occur even if critical habitat was not 
designated. However, as stated in Section 4 of the DEA, Alabama 
Department of Transportation plans to expand Highway 180 within the 
right-of-way. As discussed in the DEA, it is likely that State Route 
180 can be widened within the existing right-of-way on the north side 
of the road with limited or no impact on ABM critical habitat, except 
along one quarter-mile to a half-mile of road. Second, as discussed in 
Appendix C, the DEA assumes no development will occur seaward of the 
CCL. Lastly, Section 3 of the DEA estimates ABM conservation efforts 
resulted in a reduction in approximately 66 residential housing units.
    (58) Comment: One commenter writes the DEA underestimates the 
economic impacts of ABM critical habitat on development because it does 
not consider the stigma impacts on the marketability of property 
designated as critical habitat; does not consider the impacts of a 
potential reduction in the number of dwelling units which can be built; 
does not consider the reduction of market value of loss of proximity to 
beachfront; does not consider the alteration of amenities which can be 
packaged with the units; does not give consideration to the costs 
associated with delays; and does not consider costs associated with 
permit application.
    Our Response: We agree that an economic analysis should incorporate 
costs associated with each of the categories referenced by the 
commenter. As described in Section 3 of the DEA, the conservation 
activities associated with the ABM may result in losses to developers 
and individual landowners by imposing the following costs: (1) 
Increased administrative costs to secure incidental take permits 
(ITPs), including associated project delay costs; (2) on-site project 
modification costs to protect the ABM; and (3) land value losses 
associated with development restrictions, i.e., required land setbacks 
or set-asides.
    Ideally, a hedonic model of regional property values would be 
employed to estimate welfare losses associated with potential 
development constraints in critical habitat. This economic tool, that 
is, a hedonic model, measures the influence of amenities, disamenities, 
and regulations on land and housing prices and, in theory, could 
provide a direct measure of the effects associated with critical 
habitat arising from demand and supply factors (including the costs 
described above). To utilize a hedonic model data on property sales 
prices, structural and locational characteristics for the housing 
markets in the vicinity of ABM habitat would be required. However, 
these data are not available. Therefore, to estimate welfare losses 
associated with potential development constraints in designated areas, 
the economic analysis primarily relies on the direct compliance cost 
approach to quantify potential impacts of ABM conservation on 
development in critical habitat. To estimate losses associated with 
increased administrative costs and project modifications, we contacted 
area developers and other stakeholders to obtain cost information that 
can be applied to existing and potential development activities in 
units for critical habitat designation and areas proposed for 
exclusion. Given available information, the compliance cost approach is 
a reasonable method to determine the relative magnitude of conservation 
effort costs across parcels within critical habitat.
    (59) Comment: One commenter asserts that the Service did not 
consider the economic losses associated with critical habitat in the 
context of hurricane recovery, specifically recovery following 
hurricane Katrina.
    Our Response: The purpose of the economic analysis is to identify 
and analyze the potential economic impacts associated with the critical 
habitat designation for the federally listed ABM. Section 5 of the DEA 
outlines estimated past impacts from storms. It is not practicable to 
estimate future impacts of hurricanes for several reasons. First, 
although some models are available to predict storm events, these data 
are not sufficient to predict the likely human response to the damage 
and conservation efforts for the ABM. Accordingly, this analysis does 
not quantify costs of conservation efforts resulting from future storm 
damage. Second, not accounting for potential tropical storms and 
hurricanes is expected to have a downward impact on estimating total 
cost of conservation efforts for the ABM. Most responses to storm 
events will have little to do with the ABM critical habitat 
designation. For example, dune restoration and protection efforts (for 
example, beach nourishment) are a result of the storm event and not the 
ABM; however, some additional efforts may be required by the critical 
habitat designation, such as conducting a consultation. In addition, it 
is important to note that some conservation efforts for the ABM may 
result in dune protection to the extent that dune protection lessens 
storm damage.
    (60) Comment: Several commenters request an economic analysis of 
proposed critical habitat for Planning District 25 only.
    Our Response: As discussed in Section 1 of the DEA, the geographic 
scope of the economic analysis includes all areas proposed for critical 
habitat designation and areas proposed for exclusion. Therefore, the 
economic analysis considers impacts that may occur within Planning 
District 25 (Fort Morgan Peninsula) as well as outside this area (for 
example, Gulf State Park).
    (61) Comment: Several commenters state the DEA underestimates the 
number of small entities in the development industry that may be 
affected and the burden the critical habitat may impose on these small 
entities.
    Our Response: Because the Final Economic Analysis (FEA) is 
prospective in nature, we are unable to identify the specific 
developers undertaking projects in critical habitat in the next 20 
years. The FEA assumes that project modification costs associated with 
ABM conservation efforts (for example, onsite set-asides, minimizing 
artificial lighting, and dune maintenance) will be

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capitalized into the price of land and will be borne by the existing 
landowner, regardless of whether that landowner actually undertakes the 
development project themselves. Using the number of privately owned 
developable parcels (or lots) that intersect the revised critical 
habitat, approximately 137 landowners could be impacted by ABM 
conservation efforts. Many of these landowners may be individuals or 
families that are not registered businesses (for example, they may be 
holding the land as an investment). No North American Industry 
Classification System (NAICS) code exists for landowners, and the Small 
Business Administration does not provide a definition of small 
landowner. A lower bound estimate of the potential impact to small 
entities would be to assume that all existing landowners are not 
registered businesses, and, therefore, no impact on small entities is 
expected. To develop an upper bound estimate of the potential impacts 
on small entities, the FEA makes the conservative assumption that all 
of the private owners of developable lands in critical habitat impacted 
by future ABM conservation efforts will be developers. This assumption 
is likely to overstate the actual impacts to small development firms. 
The FEA estimates that less than two small developers may experience a 
reduction in revenues of 2.8 percent each year as a result of ABM 
conservation efforts in critical habitat. In addition, we acknowledge 
that some subcontractors to developers may meet the definition of a 
small business definition under the Regulatory Flexibility Act (5 
U.S.C. 601-612) and may be affected by the impacts to development 
activities from critical habitat designation. These subcontractors are 
indirectly affected by ABM conservation efforts that directly affect 
the project proponent (the developer).
    (62) Comment: One commenter wrote the DEA underestimates the amount 
of property that could potentially be developed as multi-family units.
    Our Response: Appendix C of the DEA provides the methodology used 
to determine the type of development likely to occur within critical 
habitat. The DEA uses geographic information systems (GIS) software to 
estimate the maximum number of potential residential units that could 
be built in critical habitat under current Baldwin County, Alabama, 
zoning regulations, and future City of Gulf Shores, Alabama, zoning. 
Potential redevelopment areas are estimated using the 2003 study by 
Volkert & Associates, Permitted or Potential Future Gulf-Front Multi-
Family Development Locations, Fort Morgan Peninsula, Gulf Shores, 
Alabama. The Volkert & Associates study identified lands that can 
physically and legally support multi-family development, irrespective 
of current zoning. No additional properties are expected to be capable 
of supporting multi-family development.
    (63) Comment: Several commenters state the DEA does not consider 
all of the alternatives for Beach Club West and Gulf Highlands outlined 
in the Draft Environmental Impact Statement (DEIS) for these projects.
    Our Response: The DEA estimates impacts based on activities that 
are reasonably foreseeable, which include, but are not limited to, 
activities that are currently authorized, permitted, or funded, or for 
which proposed plans are currently available to the public. Section 3 
of the DEA estimates costs of ABM conservation efforts for the Beach 
Club West and Gulf Highlands projects associated with the most 
reasonably foreseeable project, the Preferred Alternative provided in 
the DEIS.
    (64) Comment: Several commenters assert the DEA only focuses on two 
developments, Beach Club West and Gulf Highlands.
    Our Response: The DEA estimates potential impacts on many 
activities, including a wide range of development activities, road 
construction and maintenance activities, tropical storms and 
hurricanes, species management activities, and recreation activities. 
Most anticipated costs are associated with residential and commercial 
development (approximately 99 percent). Of these, 70 to 93 percent are 
associated with the Beach Club West and Gulf Highlands projects.
    (65) Comment: One commenter stated the DEA appears to be based on 
the 2003 Volkert & Associates analysis. However, a 2005 study is 
available and should be used.
    Our Response: As discussed in Appendix C of the DEA, Volkert & 
Associates developed a GIS layer identifying vacant single-family lots 
within ABM habitat for the City of Gulf Shores Range-Wide HCP in 2005. 
This information was used in the DEA to estimate the number of single 
family homes likely to be developed under the City of Gulf Shores 
Range-Wide HCP within critical habitat. In 2003, Volkert & Associates 
developed a separate GIS layer to identify areas on the Fort Morgan 
Peninsula that may legally and physically support multi-family 
development (irrespective of current zoning). This layer identifies 
parcels that are legally (for example, covenants, easements) or 
physically (for example, wetlands) incapable of development. The 2003 
data were used to estimate the potential for redevelopment as multi-
family within critical habitat. An updated (2005) version of this data 
layer is not available.

Comments From States

    Section 4(i) of the Act states that the Secretary shall submit to 
the State agency a written justification for his failure to adopt a 
regulation consistent with the agency's comments or petition. Comments 
were received from the State of Alabama's Department of Transportation 
(ALDOT) and Department of Conservation and Natural Resources (ADCNR).
    (66) Comment: ALDOT requests the exclusion of the S.R. 180 (Fort 
Morgan Road) right-of-way from the critical habitat because of future 
plans to widen the corridor to address increasing traffic volumes and 
safety concerns.
    Our Response: The S.R. 180 right-of-way is owned by the State of 
Alabama and extends 160 ft (49 m) south of the roadway centerline. 
Trapping data (Farris 2003) demonstrated mice occupancy along most of 
the right-of-way from the Fort Morgan Historic Site to just west of The 
Beach Club. These areas, which consist of high elevation scrub habitat, 
low elevation scrub habitat, and open sandy habitat serving to connect 
larger, more contiguous areas designated as critical habitat, are 
important for east-west movement of mice along the peninsula. This area 
is not covered under a ABM-specific management plan and, as such, does 
not meet our criteria for exclusion under section 4(b)(2) of the Act 
due to conservation plans. We have had discussions with ALDOT regarding 
revised critical habitat and the widening project and will continue to 
work with ALDOT to ensure that projects proceed with minimal impact to 
designated critical habitat.
    (67) Comment: ADCNR asked how the designation of critical habitat 
would affect the sale and permitting of driveway easements on State-
owned land along S.R. 180.
    Our Response: We recommend that landowners planning to construct 
driveways through ABM habitat apply for an ITP from the Service 
regardless of whether or not there is critical habitat (please see 
Comment 13 for a discussion of the difference between ABM habitat and 
critical habitat). Critical habitat only applies to Federal actions; 
therefore, driveway construction would not trigger consultation with 
the Service; however, since take of mice may occur, we recommend an 
ITP.

[[Page 4342]]

    (68) Comment: ADCNR expressed concern that the areas proposed for 
exclusion from critical habitat do not match up with its proposed plans 
for the proposed Gulf State Park hotel and convention center.
    Our Response: In 2004, we approved an HCP and issued an ITP for the 
upcoming demolition and reconstruction of a new hotel and convention 
center complex south of S.R. 182 on Gulf State Park. ADCNR applied for 
and received a modification to this permit in 2005 to allow for 
adjustments to proposed parking lots and building footprints. ADCNR has 
now applied for an additional permit modification to include moving and 
rebuilding the pier that was destroyed by Hurricane Ivan, and slight 
changes to its proposed design for the parking and hotel and convention 
center facilities. The Service has attended several meetings with ADCNR 
staff regarding project construction and the minimization of impact to 
both existing and revised critical habitat. In its current proposal, 
ADCNR has outlined plans for a combined facility that features state-
of-the-art, wildlife-friendly lighting and reduces overall ABM habitat 
impacts by 2 ac (0.8 ha). We have modified this final rule to reflect 
this second permit modification. Please refer to the ``Application of 
Exclusions Under Section 4(b)(2) of the Act'' section and Map 6 for 
more information.

Summary of Changes From Proposed Rule

    In preparing this final critical habitat designation for the ABM, 
we reviewed and considered comments from the public on the proposed 
designation of critical habitat published on February 1, 2006 (71 FR 
5516). We likewise reviewed and considered comments from our 
announcement of revisions to the proposal, the availability of the DEA, 
and public hearing published on August 8, 2006 (71 FR 44976). As a 
result of the comments and a reevaluation of the revised proposed 
critical habitat boundaries, we made changes to our proposed 
designation, as follows:
    (1) We revised the critical habitat units based on peer review, 
public comments, and biological information received during the public 
comment periods. We adjusted the boundaries of Unit 3 to remove 10 
acres along the S.R. 180 right-of-way immediately west of Martinique, 
and in the Cabana Beach subdivision north of Adair Lane because these 
areas do not meet our criteria for inclusion.
    (2) We realigned or reduced the area considered to be essential to 
the conservation of species on the Perdue Unit of the Bon Secour 
National Wildlife Refuge from 1,063 ac (430 ha) to 807 ac (327 ha), 
based on site visits, a detailed review of 2005 aerial photography, and 
recent tracking and trapping data (see Comment 31). However, these 
areas within the Perdue Unit still do not meet the definition of 
critical habitat under section 3(5)(A) of the Act because they are 
protected under the Refuge's CCP (they do not require special 
management considerations or protection ) (see ``Application of Section 
3(5)(A) of the Act'' for more information).
    (3) Under section 4(b)(2) of the Act, we did not designate the 
areas totaling 108 ac (44 ha) covered by the HCP for the Beach Club 
West and Gulf Highlands because the HCP provides for ABM conservation 
(see ``Application of Exclusions Under Section 4(b)(2) of the Act'' 
section for more detail).
    (4) We have modified the boundaries of the designation for Unit 5: 
Gulf State Park to reflect its recent ITP modification. This 
modification resulted in the addition of 2 ac (0.8 ha) to Unit 5 (see 
Comment 68 and the ``Application of Exclusions Under Section 4(b)(2) of 
the Act `` section for more information).

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, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific 
data available, habitat areas that provide essential life cycle needs 
of the species (areas on which are found the primary constituent 
elements, 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) of the Act.) Furthermore, when the best available 
scientific data do not demonstrate that the conservation needs of the 
species require additional areas, we will not designate critical 
habitat in areas outside the geographical area occupied by the species 
at the time of listing. However, an area 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, 
typically be included in the critical habitat designation.
    The Service's Policy on Information Standards Under the 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

[[Page 4343]]

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 
package 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 are 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 call for a different outcome.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and 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 required for the ABM are derived from the 
biological needs of this beach mouse as described in the proposed 
critical habitat designation published in the Federal Register on 
February 1, 2006 (71 FR 5516).

Primary Constituent Elements for the Alabama Beach Mouse

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to ABM conservation. 
All areas designated as ABM critical habitat are occupied or essential 
to the conservation of the species, within the species' historic 
geographic range, and contain sufficient PCEs to support at least one 
life history function.
    This designation is designed for the conservation of PCEs necessary 
to support the life history functions that were the basis for the 
proposal. Because not all life history functions require all the PCEs, 
not all critical habitat will contain all the PCEs.
    Units known to be occupied at the time of listing are designated 
based on sufficient PCEs being present to support one or more of the 
species' life history functions. Some units contain all PCEs and 
support multiple life processes, while some units contain only a 
portion of the PCEs necessary to support the species' particular use of 
that habitat. Where a subset of the PCEs is present at the time of 
designation, this rule protects those PCEs and thus the conservation 
function of the habitat.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that PCEs for the ABM 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) 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.
    Each of the areas designated in this rule known to be occupied at 
the time of listing has been determined to contain sufficient PCEs to 
provide for one or more of the life history functions of the ABM. In 
some cases, the PCEs exist as a result of ongoing Federal actions. As a 
result, ongoing Federal actions at the time of designation will be 
included in the baseline in any consultation conducted subsequent to 
this designation.

Criteria Used To Identify Critical Habitat

    We are designating 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.
    Units known to be occupied at the time of listing were designated 
based on sufficient PCEs being present to support Alabama beach mouse 
life processes and at least one of the following characteristics: (1) 
Supports a core population of ABM; (2) was occupied by ABM at the time 
of listing; (3) is currently occupied by ABM according to Service ABM 
live-trapping protocol (Service 2005, p. 2) and has been determined to 
be essential to the conservation of the species. Some units contain all 
PCEs and support multiple life processes. Some units contain only a 
portion of the PCEs necessary to

[[Page 4344]]

support the ABM's particular use of that habitat. Where only a subset 
of the PCEs are present, it has been noted that only PCEs present at 
designation will be protected. Areas that are degraded, highly 
fragmented, isolated, or otherwise considered of questionable value to 
ABM conservation are not included. The Service has developed a trapping 
protocol for establishing absence of beach mice (see ADDRESSES to 
request a copy). In summary to document absence, this protocol requires 
2 years of quarterly live-trapping with no beach mice captured. 
Presence of ABM, 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 the species. These areas 
were refined by using aerial map coverages, chiefly Baldwin County 
aerial photography from 2001 and 2005, and LIDAR imagery (Baldwin 
County 2004), to eliminate features such as housing developments and 
other areas that are unlikely to contribute to the conservation of ABM. 
We then focused on areas supporting ABM, as well as areas that contain 
the PCEs for the subspecies.
    Because ABM habitat is dynamic and changes in response to coastal 
erosion, we believe that limiting the designation to areas occupied at 
the time of listing would not yield sufficient habitat for the 
persistence of ABM. 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 designating units that were not occupied at the 
time of listing. These areas are essential for the conservation of the 
ABM. In addition, however, they are also currently occupied by the 
species, have one or more of the PCEs, and are within the historic 
range of the species.
    The combined extent of these mapped areas defines the habitat that 
contains features that are essential to the conservation of the 
subspecies. Although these designated areas 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 ABM. Areas not 
containing the PCEs, such as permanent wetlands and maritime forests, 
are not included in the 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, totaling 2,281 ac (923 ha), 
were identified as containing the PCEs and essential to the 
conservation of the subspecies.
    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) of the Act. Portions of the Perdue Unit of the Refuge are 
adequately protected under the Refuge's Comprehensive Conservation Plan 
and do not require special management or protection. While these areas, 
which total 808 ac (327 ha), contain the habitat features that are 
essential to the conservation of the subspecies, they do not meet the 
definition of critical habitat.
    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 on the species 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 excluding 51 properties that are currently protected through 
Habitat Conservation Plans providing ABM protection and habitat 
management. These excluded properties total 263 ac (106 ha). One of 
these areas, the development site for Beach Club West and Gulf 
Highlands, was also excluded based on an HCP.
    The remaining 1,211 ac (490 ha) of ABM habitat being designated as 
critical habitat is divided into the five units described below. These 
five critical habitat units, all located within the coastal dune 
environment of Baldwin County, Alabama, are currently occupied by ABM. 
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, and reflect the wide 
variety of habitat types utilized by the ABM. The areas include all of 
the contiguous 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 designated areas, and may be 
unevenly distributed at any given time.
    When determining critical habitat boundaries, we made every effort 
to avoid 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 all of 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 subspecies or 
PCEs in adjacent critical habitat. It is important to note that the 
maps provided in this rule (see ``Regulation Promulgation'' section) 
are for illustrative purposes. For the precise legal definition of 
critical habitat, please refer to the narrative unit descriptions in 
the ``Regulation Promulgation'' section of this rule.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the features 
essential to the conservation that may require special management 
considerations or protections. As discussed in more detail in the 
proposed critical habitat designation (February 1, 2006; 71 FR 5516) 
and in the unit descriptions below, we find that the features we are 
designating may require special management considerations or 
protections due to threats to the subspecies or its habitat. Such 
management considerations and protections include: management of 
nonnative predators and competitors, management of nonnative plants, 
and protection of ABM and their habitat from threats by road 
construction, urban and commercial development, heavy machinery, and 
recreational activities.

Critical Habitat Designation

    We are designating five units as critical habitat for the ABM (from 
west

[[Page 4345]]

to east): (1) Fort Morgan, (2) Little Point Clear, (3) Gulf Highlands, 
(4) Pine Beach, and (5) Gulf State Park. They are described below as 
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 PCEs that may require special management, and those additional 
areas that were not occupied at the time of listing, but are essential 
for the conservation of the ABM because they contain one or more of the 
PCEs, support core ABM populations and habitat continuity, and are 
currently occupied. Table 1 shows the units that were occupied at the 
time of listing and those that are currently occupied but were not so 
at the time of listing. Table 2 identifies the areas that meet the 
definition of critical habitat but were excluded from final critical 
habitat based on their ABM-specific management plans or economic data.

         Table 1.--The Units That Were Occupied by ABM at the Time of Listing or Are Currently Occupied
----------------------------------------------------------------------------------------------------------------
                                                                  Occupied at        Occupied          Acres
                             Unit                               time of listing     currently       (hectares)
----------------------------------------------------------------------------------------------------------------
(1) Fort Morgan...............................................               X                X        446 (180)
(2) Little Point Clear........................................  ...............               X        268 (108)
(3) Gulf Highlands............................................               X                X        275 (111)
(4) Pine Beach................................................               X                X         30 (12)
(5) Gulf State Park...........................................               X                X        192 (78)
----------------------------------------------------------------------------------------------------------------


   Table 2.--Areas Determined To Meet the Definition of Critical Habitat for the Alabama Beach Mouse But Were
                                Excluded From Final Critical Habitat Designation
                                      [Totals may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
                                                                Area excluded
                                                Definitional     from final
               Geographic area                  areas (acres/    designation                 Reason
                                                  hectares)        (acres/
                                                                  hectares)
----------------------------------------------------------------------------------------------------------------
The Dunes....................................            10/4            10/4  HCP
Bay to Breakers..............................             2/1             2/1  HCP
Kiva Dunes...................................           50/20           50/20  HCP
Plantation Palms.............................             2/1             2/1  HCP
The Beach Club...............................            15/6            15/6  HCP
Beach Club West/Gulf Highlands...............          108/44          108/44  HCP
Martinique on the Gulf.......................            10/4            10/4  HCP
Gulf State Park..............................          235/95           43/17  HCP
43 Single Family Homes.......................            21/8            21/8  HCP
                                              ------------------------------------------------------------------
    Total (Baldwin County)...................         453/183          263/67
----------------------------------------------------------------------------------------------------------------

    Table 3 provides the approximate area encompassed within each 
critical habitat unit determined to meet the definition of critical 
habitat for the Alabama beach mouse.

                     Table 3.--Critical Habitat Units Designated for the Alabama Beach Mouse
                                      [Totals may not sum due to rounding]
----------------------------------------------------------------------------------------------------------------
                                                                                     Local and
             Critical Habitat Units               Federal acres/   State acres/   private acres/   Total acres/
                                                     hectares        hectares        hectares        hectares
----------------------------------------------------------------------------------------------------------------
(1) Fort Morgan.................................           44/18         337/136           66/27         446/180
(2) Little Point Clear..........................            16/6           82/33          170/69         268/108
(3) Gulf Highlands..............................            11/4           44/17          218/88         275/111
(4) Pine Beach..................................            11/4               0            19/8           30/12
(5) Gulf State Park.............................               0          192/78               0          192/78
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............       1,211/490
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the ABM, below.

Unit 1: Fort Morgan

    Unit 1 (Map 2) consists of 446 ac (180 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 23990; Holliman 1983, p. 126) south of S.R. 180 
(Fort Morgan Parkway), with the exception of a single line of high 
scrub dunes directly north of the roadway and within the historic site 
boundaries. Much of Unit 1 is existing critical habitat that was 
designated at the time of listing (June 6, 1985; 50 FR 23885). However, 
the actual Fort and associated structures and developed areas that

[[Page 4346]]

were included in the original designation are not included in this 
critical habitat unit. The unit extends from mean high water line 
(MHWL) northward to the break between scrub dune habitat and either the 
maritime forest or human developed landscape (for example, grassy areas 
associated with Fort Morgan State Historic Site). The 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 below). 
The Dunes development and several single family homes covered by 
Service-approved HCPs are excluded from this unit (see ``Application of 
Exclusions Under Section 4(b)(2) of the Act'' section).
    ABM occurrence in the unit over time is well documented (Holliman 
1983, p. 126; 50 FR 23990; Rave and Holler 1992, pp. 349-350; 
Sneckenberger 2001, pp. 12-13 and 32-36), and mice have been captured 
here following Hurricanes Ivan and Katrina (Endangered Species 
Consulting Services 2004a, p. 2; Service 2005, p. 15). 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 (PCE 1), 
whereas other areas contain high quality primary and secondary dune 
habitat (PCE 2). While no one portion of the designated unit contains 
all PCEs, all five PCEs are present within the unit.
    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 2005) (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-generated refuse, and degraded habitat 
(from activities associated with recreational use).

Unit 2: Little Point Clear

    Unit 2 consists of 268 ac (108 ha) and includes east-to-west bands 
of ABM habitat and connections between habitat south of the Alabama 
Department of Environmental Management's Coastal Construction Control 
Line (CCCL) (ADEM 1995, pp. 2-8 through 2-10) and along the roadway 
right-of-way for Fort Morgan Parkway. 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 ft (91 m) landward of MHWL. The 
Fort Morgan Parkway right-of-way, which is managed by the State of 
Alabama (ADCNR) extends 160 ft (49 m) both south and north of the 
roadway centerline. The designation includes the southern sections of 
right-of-way and small portions of the northern right-of-way. In 
several places along the east west extent of this unit, additional 
parcels, either to the south of the Fort Morgan Parkway, or to the 
north of the CCCL, that contain the PCEs (see Primary Constituent 
Elements section) are included in the revised designation (see Map 3). 
Several areas covered by HCPs for single family and duplex development 
have been excluded. This unit was not part of the original (1985) 
critical habitat designation. This unit is a mix of Federal, State, 
local, and private ownership.
    This unit, while often being inundated during storm surge events 
(Service 2004a; pp. 12-13; ENSR 2004, pp. 3-5 through 4-1; ACOE 2001, 
Service 2005a, pp. 14-15), 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, pp. 125-126; Dawson 1983, pp. 8-11), 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, pp. 5, 12-21; 50 FR 23872; Endangered Species Consulting Services 
2004b, p. 2) and along the right-of-way (Sneckenberger 2001, p. 13; 
Farris 2003). Because the unit is presently occupied and contains two 
of the PCEs, and because long-term beach mouse viability depends on the 
existence of more populations than were documented at the time of 
listing, it is essential to 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. Utility line 
work results in a sparsely vegetated, open scrub habitat that still 
provides forage and cover opportunities for mice in the area.

Unit 3: Gulf Highlands

    Unit 3 consists of 275 ac (111 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 Beach 
Club West-Gulf Highlands development, BLM properties, and some 
properties along the Fort Morgan Parkway right-of-way. It is bounded to 
the west by Unit 2. The main portion of the 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 
excluded because of its HCPs (see ``Application of Exclusions Under 
Section 4(b)(2) of the Act'' section). The 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 and maritime forest along the S.R. 180 
and points east. Like the right-of-way corridor in Unit 2, it generally 
extends from the centerline of Fort Morgan Parkway 160 ft (49 m) south 
though a few areas of habitat north of the road are also captured. Unit 
3 serves as an expansion, to encompass scrub habitat, of critical 
habitat Zone 2 that was designated at the time of listing (50 FR 23872; 
June 6, 1985). This unit contains the features essential to the 
conservation of the subspecies; all five PCEs are present in varying 
amounts throughout this unit.
    This unit, combined with the neighboring Perdue Unit of the Refuge 
and several properties with conservation plans that are being excluded 
(see ``Application of Exclusions Under Section 4(b)(2) of the Act'' 
section), contains the largest assemblage of high elevation habitat 
within the range of the ABM (ACOE 2001, Plate 2-11; ENSR 2004, pp. 3-5 
through 4-1; Service 2004a, pp. 9-12; Service 2004b, p. 6; Service 
2005a, pp. 2-4). 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, pp. 5, 12-21; Holliman 1983, pp. 125-126) and 
recently (Endangered Species Consulting Services, LLC and ENSR 
Corporation 2001, p. 22; Farris 2003). ABM were found here following 
Hurricane Ivan (Endangered Species Consulting Services 2004, p. 2; 
2004d, p. 2). Threats that may require special management include 
habitat degradation and fragmentation, extensive recreational pressure, 
post-storm cleanups, artificial lighting, predation, and human-
generated refuse.

[[Page 4347]]

Unit 4: Pine Beach

    This unit consists of 30 ac (12 ha) including a BLM property and 27 
private inholdings within the Perdue Unit of the Refuge that are not 
managed under the Refuge's Comprehensive Conservation Plan. The primary 
and secondary dunes within this unit were part of ``Zone 2'' of the 
original critical habitat designation, which extended from the mean 
high tide line of the Gulf of Mexico landward 500 ft (152 m). ABM are 
well documented from the area both recently (Rave and Holler 1992, pp. 
349-350; Swilling et al. 1998, pp. 289-294; Sneckenberger 2001, pp. 66-
69; Service 2003, p. 1) and from the time of listing (Holliman 1983, p. 
126; Meyers 1983, pp. 5, 12-21). This unit, along with adjacent Refuge 
lands and exclusions for single family homes covered by Service-
approved HCPs (see ``Application of Exclusions Under Section 4(b)(2) of 
the Act'' 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, 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 192 ac (78 ha) of ABM habitat in Gulf State 
Park, immediately east of the City of Gulf Shores and west of the City 
of Orange Beach. This unit retains most critical habitat designated in 
the 1985 listing rule (Zone 3--all primary and secondary dunes south of 
State Route 182) (June 6, 1985; 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 covered under the 
2004 HCP and subsequent HCP-ITP modifications is excluded from the 
designation (see ``Application of Exclusions Under Section 4(b)(2) of 
the Act'' 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.
    ABM were documented from the Park in the late 1960s (Linzey 1970, 
p. 81), but were presumed extirpated by the early 1980s (Holliman 1983, 
pp. 123-126; Holler and Rave 1991, p. 22-25), because of habitat 
isolation combined with the effects of tropical storms, predation 
(primarily from feral cats), and competition with house mice. This area 
was referred to as occupied in our final listing rule (June 6, 1985; 50 
FR 23872). ABM were reintroduced to the park in 1998, and subsequent 
trapping confirmed their presence there (Sneckenberger S., Service, 
personal communication, 2005; Service 2003, p. 2). This unit was 
heavily impacted by Hurricane Ivan in 2004 (Service 2004a, pp. 5-6) and 
Hurricane Katrina in 2005 (Service 2005a, pp. 6-9), and recent trapping 
has not located mice (Volkert 2005, pp. 2-5). This unit contains PCEs 2 
and 3 and, therefore, possesses the habitat features essential to the 
conservation of the subspecies. Because this unit contains several 
PCEs, because it is presently occupied, and because ABM recovery 
depends on more populations than were documented at the time of 
listing, it is essential to the conservation of the subspecies.
    This unit is State-owned and managed by the State Parks Division of 
the ADCNR. 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, 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 
Court of Appeals 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 
primary constituent elements 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 that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of designated critical habitat. This is a procedural requirement only. 
However, once a 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 because 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 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

[[Page 4348]]

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) of the Act 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, and 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 jeopardy to a listed species or 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 
jeopardy to the listed species or 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 a new 
species is listed or 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 consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat. We anticipate 
that at least one consultation will have to be reinitiated as a result 
of this designation.
    Federal activities that may affect ABM or their designated critical 
habitat will require section 7 consultation under the Act. Activities 
on State, Tribal, local or private lands requiring a Federal permit 
(such as a permit from the Corps under section 404 of the Clean Water 
Act or a permit under section 10(a)(1)(B) of the Act from the Service) 
or involving some other Federal action (such as funding from the 
Federal Highway Administration, Federal Aviation Administration, or the 
Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.

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 core area populations and 
connectivity to mouse survival and recovery. 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 Alabama beach mice 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 the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area 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 ABM critical habitat units is to support viable 
core area 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 species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for Alabama beach mice is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore result in 
consultation for Alabama beach mice 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 heavy 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 nonnative species to establish in the area, 
landscaping with grass or other nonindigenous 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 natural lighting. Such 
activities could include, but are not limited to,

[[Page 4349]]

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.
    (4) 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 or north-south 
corridors among various habitat types, and, therefore, isolate habitat.
    The five critical habitat units are currently occupied by the 
subspecies, based on trapping data, our 2003 habitat map, and Service 
trapping protocol (Service 2005b, p. 2). All of the units included in 
this 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. Federal agencies already consult with 
us on activities in areas currently occupied by the ABM. If ABM may be 
affected by proposed actions, Federal agencies consult with us to 
ensure that their actions do not jeopardize the continued existence of 
ABM. This happens regardless of whether or not critical habitat is 
designated.
Application of Section 3(5)(A) 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 on which are 
found those physical and biological features (i) essential to the 
conservation of the species, and (ii) which may require special 
management considerations or protection. Therefore, areas within the 
geographic area occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographic 
area occupied by the species that require no special management or 
protection also are not, by definition, critical habitat.

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

    The Refuge finalized its Comprehensive Conservation Plan (CCP) 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 (for example, predator management plan) and 
projects (for example, 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 contain 
the PCEs for the ABM. Furthermore, the Refuge, especially on the Perdue 
Unit, has demonstrated its resolve for ABM conservation by continually 
engaging in dune restoration activities (including following Hurricanes 
Ivan and Katrina) and semi-annual ABM trapping, and through outreach 
and education. Accordingly, we believe that the Perdue Unit of the 
Refuge does 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 ac (206 ha) 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 ac, approximately 480 ac (194 ha) 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 ac (12 ha) of Federal land imbedded within them), 
therefore, may require special management or protection, and are being 
designated as critical habitat.

Application of Exclusions Under Section 4(b)(2) of the Act

    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. 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 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.
    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. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion, and the 
Congressional record is clear that, in making a determination under the 
section, the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of inclusion. If an exclusion is 
contemplated, then we must determine whether excluding the area would 
result in the extinction of the species. In the

[[Page 4350]]

following sections, we address a number of general issues that are 
relevant to the exclusions we considered.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (EPA 2003, p. 3-3) and at least 
80 percent of endangered or threatened species occur either partially 
or solely on private lands (USGAO 1995, p. 4). Stein et al. (1995) 
found that only about 12 percent of listed species were found almost 
exclusively on Federal lands (90 to 100 percent of their known 
occurrences restricted to Federal lands) and that 50 percent of 
federally listed species are not known to occur on Federal lands at 
all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as HCPs, Safe Harbor Agreements, 
Candidate Conservation Agreements, Candidate Conservation Agreements 
with Assurances, and conservation challenge cost-share. Many private 
landowners, however, are wary of the possible consequences of 
encouraging endangered species to their property, and there is mounting 
evidence that some regulatory actions by the Federal government, while 
well-intentioned and required by law, can (under certain circumstances) 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 
2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found as 
illustrated by some of the public comments received on this proposal. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999; Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (for 
example, reintroduction, fire management, control of invasive species) 
are necessary for species conservation (Bean 2002).
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than critical habitat alone.
    The Department of the Interior's Four C's philosophy of 
conservation through communication, consultation, and cooperation is 
the foundation for developing the tools of conservation. These tools 
include conservation grants, funding for Partners for Fish and Wildlife 
Program, the Coastal Program, and cooperative-conservation challenge 
cost-share grants. Our Private Stewardship Grant program and Landowner 
Incentive Program provide assistance to private landowners in their 
voluntary efforts to protect threatened, imperiled, and endangered 
species, including the development and implementation of HCPs.
    Conservation agreements with non-Federal landowners (for example, 
Habitat Conservation Plans (HCPs), contractual conservation agreements, 
easements, and stakeholder-negotiated State regulations) enhance 
species conservation by extending species protections beyond those 
available through section 7 consultations. In the past decade, we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through coercive methods (61 FR 63854; December 2, 1996).

Habitat Conservation Plans (HCPs)

    Section 10(a)(1)(B) of the Act authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-Federal landowner to 
proceed with an activity that is legal in all other respects, but that 
results in the incidental taking of a listed species (take that is 
incidental to, and not the purpose of, the carrying out of an otherwise 
lawful activity). The Act specifies that an application for an 
incidental take permit 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. There are currently 51 HCP sites 
containing habitat we have identified as essential to the ABM 
conservation (see ``Criteria Used To Identify Critical Habitat'' 
section). These include HCPs for 7 multifamily developments, 1 hotel 
and convention center complex, and 43 single family homes.
    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 covered species.
    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 all HCP sites that we have identified as essential 
for the conservation of the subspecies follows.

[[Page 4351]]

Multifamily Developments With HCPs and Issued ITPs

    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, trapping surveys, and annual reports. HCPs for The Beach Club 
and Martinique developments also include the creation of endowment 
funds for use in future ABM conservation activities (such as 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 2 above). Most of these 
conservation zones were designated as critical habitat at the time ABM 
was listed on June 6, 1985 (50 FR 23885).
    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 
exclude from critical habitat the areas on these properties that 
contain the features that are essential to the conservation of the 
subspecies. We have further determined that the exclusion from critical 
habitat of these areas would not result in the extinction of the ABM. 
The rationale for this determination is below (see ``Benefits of 
Exclusion of 51 Areas Protected by Service-Approved HCPs'').

Proposed Beach Club West and Gulf Highlands Developments

    These projects consist of several proposed condominium towers and 
associated amenities. We were first approached by the proponents of 
Gulf Highlands in 1995 (and proponents of Beach Club West in 2000) 
about the development of a 187-ac (75-ha) site within Unit 3 of the 
designated critical habitat. While these two projects are separate, 
they are adjacent to one another, and we recommended they submit a 
joint ABM habitat conservation plan to streamline review and offer 
greater minimization and mitigation. The applicants submitted a habitat 
conservation plan for these projects in 2001, and following subsequent 
environmental review, the Service issued ITPs to both parties in 2002. 
The Sierra Club and Friends of the Earth, Inc. filed an action in the 
United States District Court for the Southern District of Alabama 
challenging our environmental review of the projects under the National 
Environmental Policy Act and the Administrative Procedure Act.
    As a result of this litigation, the Service agreed to a voluntary 
remand of the environmental review and proceeded to develop an 
Environmental Impact Statement (EIS) to more thoroughly evaluate the 
impact of the proposed developments on the natural and human 
environments. The ITPs issued in 2002 were held in abeyance pending the 
outcome of this environmental review and of review of the projects 
under the Act. We completed our DEIS (which contained five 
alternatives) in early 2006 and announced its availability (and 
associated 90-day public comment period) in the Federal Register on 
April 28, 2006 (71 FR 25221). We held a public hearing on the DEIS in 
Gulf Shores on June 26, 2006. The notice announcing the availability of 
a final EIS and determination to sign a record of decision (ROD) on 
Beach Club West--Gulf Highlands was published in the Federal Register 
on November 29, 2006 (71 FR 69141). Both the ROD and modified permit 
instruments were signed on January 10, 2007.
    The proposed developments involve the construction of six 20-story 
towers and a seventh smaller tower--clubhouse facility. This 
construction will permanently convert 40.5 ac (16.3 ha) of the total 
project site. With this design, the permittees have demonstrated they 
are minimizing the project footprint to the greatest extent possible 
through the clustering of the development in the eastern corner of the 
property, the use of parking garages, and the removal of some 
recreational facilities (such as tennis courts) from the original 
design. Construction of the projects will involve an additional 21.9 ac 
(8.9 ha) of temporary impacts to ABM habitat; however, according to the 
HCP, these areas will be restored to beach mouse habitat. Per the HCP, 
all other areas on the project site (with the exception of road right-
of-way owned by Baldwin County) will be protected by restrictive 
covenants, permit and HCP conditions, or conservation easements. The 
permittees will permanently develop approximately 22 percent of the 
project site.
    The HCP for these projects outlines numerous conservation measures 
designed specifically for ABM. These measures include, but are not 
limited to, wildlife-friendly outdoor lighting, control of cats and 
house mice, an ABM outreach program, dune walkovers, collection of 
trapping data, and habitat restoration. Numerous measures designed to 
minimize temporary construction impacts (such as signage, placement of 
staging areas, removal of waste) are also outlined. In addition, in 
association with the Gulf Highlands HCP, the permittees have agreed to 
set aside 96.8 ac (39 ha) of lands that would be placed into 
conservation status through a conservation easement or other legal 
protective document. A perpetual conservation easement was created on 
October 30, 2000, for the Gulf Highlands Condominiums portion (42.6 ac) 
of the conservation area in anticipation of ITP issuance and is held by 
the Baldwin County Commission. The Beach Club West portion (54.2 ac) of 
the conservation area is protected through a Declaration of 
Abandonment, filed with Baldwin County on April 15, 2002. The private 
inholdings located within the project area that will not be part of 
this project, are not subject to the same restrictions, and are 
therefore included in the designation.
    Although approximately 6 ac (2 ha) of the area owned by the 
permittees and identified in this analysis as essential to the 
conservation of the subspecies is part of road rights-of-way retained 
by Baldwin County, these acres will be managed in accordance with the 
HCP for Gulf Highlands. As part of their inclusion in areas being 
managed with an HCP, the 6 acres surrounding these rights-of-way will 
have management including numerous conservation measures designed 
specifically for ABM. These measures include, but are not limited to, 
wildlife-friendly outdoor lighting, control of cats and house mice, an 
ABM outreach program, dune walkovers, collection of live-trapping data, 
and habitat restoration. Numerous measures designed to minimize 
temporary construction impacts (such as signage, placement of staging 
areas, removal of waste) are also outlined. Because these rights-of-way 
have not been vacated and transferred to the permittees, they could be 
developed in the future at the discretion of the County. However, 
should the County decide to pursue development of these areas, it would 
either have to pursue an incidental take permit or enter into section 7 
consultation (depending upon the presence of a Federal nexus in the

[[Page 4352]]

project). Because these rights-of-way do not require additional 
management considerations or protection, they do not meet the 
definition of critical habitat under section 3(5)(A) of the Act.
    On the basis of the conservation benefits afforded the ABM from the 
referenced HCP and the provisions of section 4(b)(2) of the Act, we 
exclude from critical habitat all areas within the Gulf Highlands-Beach 
Club West project sites containing the features essential to the 
conservation of the subspecies. This does not include any private 
inholdings as outlined above. 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 of 51 Areas Protected by Service-Approved 
HCPs'').

Gulf State Park Hotel and Convention Center Complex

    In 2004, we approved an HCP for the demolition of existing Gulf 
State Park (GSP) and construction of a new hotel and convention center 
on the site. In response to hurricane impacts and the need to minimize 
future impacts, the ITP issued for this project was modified in 2005 to 
adjust the footprint of the GSP beach pavilion and parking lot. The new 
GSP 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 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 
outreach concerning the ABM). The area covered by the HCP and ITP 
includes the 43 ac (17 ha) surrounding the complex. In February 2006, 
ADCNR informed us of new plans to consolidate the new fishing pier (the 
previous pier was destroyed during Hurricane Ivan) with the convention 
center complex. This consolidation involves demolition and restoration 
of the old pier (and associated parking area) and construction of a new 
pier 250 ft to the east. By moving the pier and associated parking 
eastward into the previously authorized development footprint, the 
revised plan reduces impacts to ABM habitat by 2 ac (1 ha). The new 
pier will also feature state-of-the-art, wildlife-friendly lighting 
(mainly shielded, low wattage-low pressure sodium lighting) and, 
therefore, result in much less light pollution than the old pier, 
thereby reducing impacts to sea turtles.
    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 exclude 
from critical habitat the 43 ac (17 ha) covered area, portions of which 
we have identified to contain the features that are essential to the 
conservation of the subspecies. 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 of 51 Areas Protected by Service-Approved 
HCPs'').

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 and issued ITPs for the construction of 11 additional single 
family homes in occupied ABM habitat. Four of these properties have 
been determined to contain features essential to the conservation of 
the ABM (see ``Criteria Used To Identify Critical Habitat''). 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 (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 
are excluding from critical habitat ABM habitat within these 43 
properties that contain features essential to ABM conservation and are 
covered by HCPs and issued ITPs. 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 of 51 Areas Protected by Service-Approved 
HCPs'').
    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 of 51 Areas Protected Through Service-
Approved HCPs
    The principal regulatory benefit of critical habitat is that 
federally authorized, funded, or carried out activities require 
consultation pursuant to section 7 of the Act to ensure that they will 
not destroy or adversely modify critical habitat. In the Gifford 
Pinchot decision, the U.S. Court of Appeals for the Ninth Circuit ruled 
that adverse modification evaluations require consideration of impacts 
on the recovery of species (379 F.3d 1059, 1070-1072). Conducting 
section 7 consultations would provide benefits on HCP lands with a 
Federal nexus by helping ensure the integrity of these lands is 
maintained. For example, if a federally funded road project was 
proposed to cross HCP lands that were designated as critical habitat, a 
consultation would need to be conducted to ensure the designated 
critical habitat was not destroyed or adversely modified. However, the 
presence of ABM would trigger consultation under section 7 of the Act 
under the jeopardy standard regardless of whether critical habitat is 
designated.
    Designation of critical habitat also serves to educate landowners, 
State and local governments, and the public, regarding the potential 
conservation value of the area. This helps focus, prioritize, and 
revitalize conservation efforts, such as dune restoration projects, or 
more extensive monitoring of beach mouse populations.
(2) Benefits of Exclusion of 51 Areas Protected by Service-Approved 
HCPs
    We identified a number of possible benefits of excluding the area 
covered by the 51 HCPs from critical habitat designation. First, 
exclusion would reduce largely redundant administrative costs of 
section 7 consultation. There is no added value in designating these 51 
HCP sites as critical habitat because they are subject to the legally 
enforceable conditions of ITPs. HCP sites are still protected by the 
section 7 ``jeopardy standard'' in the event a Federal action may 
adversely affect mice there. For instance, if a federally funded 
roadway project were planned to bisect an HCP site, the Federal action 
agency would still be required to

[[Page 4353]]

consult with us regarding whether or not the roadway would adversely 
affect ABM. Second, exclusion would help to foster an atmosphere of 
cooperation in the conservation of endangered species. HCPs and other 
conservation partnership efforts typically provide far greater 
conservation benefits to species than the limited benefits arising from 
critical habitat designation. The latter benefits are restricted to 
actions with a Federal nexus and can require only that the action not 
adversely modify the habitat. It cannot compel, and in practice may 
discourage, the sort of active management actions that generally are 
needed to recover listed species. Two of our HCP sites have provided 
endowments for beach mouse conservation, and these sites and other 
multifamily developments provide us with seasonal trapping data vital 
to beach mouse conservation efforts. Through the HCP program, we also 
retain the permission to live-trap and monitor habitat on private land, 
something that a critical habitat designation does not confer. 
Conservation areas within HCP sites we have identified as essential to 
the conservation of the species are protected from predators, subject 
to rules restricting uncontained human refuse and excessive artificial 
light, and conservation subject to a host of other beneficial 
requirements that are not conveyed by critical habitat designation. 
Through developing positive conservation relationships with property 
owners along the Alabama coastline, we are able to partner with private 
landowners in habitat restoration, conduct beach mouse translocations, 
and monitor populations, thereby facilitating recolonization of 
previously inhabited areas, encouraging and providing suitable habitat 
for the long-term persistence of beach mice, obtaining more information 
on the subspecies, and improving and discovering new techniques and 
opportunities that will assist in ABM recovery. While these activities 
are admittedly required by HCPs and associated ITPs, our relationships 
with permittees and other private stakeholders, which are extremely 
important for ABM conservation (see ``Conservation Partnerships'' 
section above), could be damaged by unnecessary regulation. Exclusion 
would provide an incentive for participation in the development of new 
HCPs and non-HCP-related ABM conservation activities. The exclusion of 
HCP lands from critical habitat designations is an important incentive 
for participation in the HCP program; on the other hand, failure to 
exclude HCP lands could undermine the conservation benefits provided by 
the HCP program, and, more generally, the partnerships required to 
conserve most listed species.
    It is possible, although unlikely, that Federal action will be 
proposed that would be likely to destroy or adversely modify the 
essential habitat within the area governed by these HCPs. If such a 
project was proposed, due to the specific way in which jeopardy and 
adverse modification are analyzed for ABM (we monitor take through 
habitat loss), it would likely also jeopardize the continued existence 
of the species. In addition, we expect that the benefit of informing 
the public of the importance of this area to ABM conservation would be 
slight due to the fact that there was a previous designation of 
critical habitat for ABM in many of these areas (that underwent public 
notice and comment), the HCPs themselves underwent public review and 
comment, and this designation has undergone public review and comment. 
It is now public knowledge that conservation areas within many areas 
with Service-sponsored HCP sites contain the physical and biological 
features essential to the conservation of the species. Therefore, we 
assigned relatively little weight to the benefits of designating this 
area as critical habitat.
    In contrast, although the benefits of encouraging participation in 
HCPs, (particularly large-scale HCPs) and helping to foster cooperative 
conservation are indirect, enthusiastic HCP participation and an 
atmosphere of cooperation are crucial to the long-term effectiveness of 
the endangered species program.
(3) Benefits of Exclusion of 51 Areas Protected by Service-Approved 
HCPs Outweigh the Benefits of Inclusion
    We have assigned great weight to the benefits of excluding certain 
lands from this critical habitat designation, since we believe 
conservation is best fostered in a voluntary environment. To the extent 
that there are regulatory benefits of including these lands as critical 
habitat, the associated costs could be avoided by excluding the areas 
from designation. We expect the regulatory benefits to be slight, 
because these areas are currently occupied, and consultation will occur 
regardless of critical habitat designation.
    We have determined that the benefits of inclusion of the areas 
covered by these 51 HCPs are small, while the benefits of exclusion are 
substantial. Through these measures identified above, we believe that 
for these 51 sites, the benefits of exclusion outweigh the benefits of 
inclusion.
(4) Exclusion Will Not Result in Extinction
    Because we anticipate that little, if any, conservation benefit to 
the ABM will be foregone as a result of excluding these areas (ABM in 
these areas are protected by sections 7 and 9 of the Act regardless of 
whether critical habitat is designated), the exclusion will not result 
in the extinction of the ABM. Accordingly, we exercise discretion under 
section 4(b)(2) to exclude the areas covered by these HCPs from the 
designation of critical habitat for the ABM.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may

[[Page 4354]]

contain discretionary conservation recommendations to minimize adverse 
effects to primary constituent elements, but it would not contain any 
mandatory reasonable and prudent measures or terms and conditions. 
Mandatory reasonable and prudent alternatives to the proposed Federal 
action would only be issued when the biological opinion results in a 
jeopardy or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we believe the 
conservation achieved through implementing habitat conservation plans 
(HCPs) or other habitat management plans is typically greater than 
would be achieved through multiple site-by-site, project-by-project, 
section 7 consultations involving consideration of critical habitat. 
Management plans commit resources to implement long-term management and 
protection to particular habitat for at least one and possibly other 
listed or sensitive species. Section 7 consultations only commit 
Federal agencies to prevent adverse modification to critical habitat 
caused by the particular project, and they are not committed to provide 
conservation or long-term benefits to areas not affected by the 
proposed project. Thus, any HCP or management plan that considers 
enhancement or recovery as the management standard will always provide 
as much or more benefit than a consultation for critical habitat 
designation conducted under the standards required by the Ninth Circuit 
in the Gifford Pinchot decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the ABM. In general the educational benefit of a critical habitat 
designation always exists, although in some cases it may be redundant 
with other educational effects. For example, HCPs have significant 
public input and may largely duplicate the educational benefit of a 
critical habitat designation. This benefit is closely related to a 
second, more indirect benefit: that designation of critical habitat 
would inform State agencies and local governments about areas that 
could be conserved under State laws or local ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are making in this rule because these areas were 
included in the proposed rule as having habitat containing the features 
essential to the conservation of the species. Consequently, we believe 
that the informational benefits are already provided, even though these 
areas are not designated as critical habitat. Additionally, the purpose 
normally served by the designation, that of informing State agencies 
and local governments about areas that would benefit from protection 
and enhancement of habitat for the ABM, is already well established 
among State and local governments, and Federal agencies in those areas 
that we are excluding from critical habitat in this rule on the basis 
of other existing habitat management protections.
    The information provided in this section applies to all the 
discussions herein that discuss the benefits of inclusion and exclusion 
of critical habitat.

Relationship of Critical Habitat to Economic Impacts--Exclusions Under 
Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for economic reasons if he determines that the 
benefits of such exclusion exceed the benefits of designating the area 
as critical habitat, unless the exclusion will result in the extinction 
of the species concerned. Congress has granted this discretionary 
authority to the Secretary with respect to critical habitat. Although 
economic and other impacts may not be considered when listing a 
species, Congress has expressly required their consideration when 
designating critical habitat.
    In making the exclusions, we have, in general, considered that all 
of the costs and other impacts predicted in the economic analysis may 
not be avoided by excluding the area, because most or all of the areas 
in question are currently occupied by the listed species or considered 
essential to the conservation of the species, and there will be 
requirements for consultation under section 7 of the Act, or for 
permits under section 10 (henceforth ``consultation''), for any take of 
these species, and other protections for the species exist elsewhere in 
the Act and under State and local laws and regulations. In conducting 
economic analyses, we are guided by the 10th Circuit Court of Appeal's 
ruling in the New Mexico Cattle Growers Association case (248 F.3d at 
1285), which directed us to consider all impacts, ``regardless of 
whether those impacts are attributable co-extensively to other 
causes.'' As explained in the analysis, due to possible overlapping 
regulatory schemes and other reasons, some elements of the analysis may 
also overstate some costs.
    Conversely, the Ninth Circuit has recently ruled (Gifford Pinchot, 
378 F.3d at 1071) that the Service's regulations defining ``adverse 
modification'' of critical habitat are invalid because they define 
adverse modification as affecting both survival and recovery of a 
species. The Court directed us to consider that determinations of 
adverse modification should be focused on impacts to recovery. While we 
have not yet proposed a new definition for public review and comment, 
compliance with the Court's direction may result in additional costs 
associated with the designation of critical habitat (depending upon the 
outcome of the rulemaking). In light of the uncertainty concerning the 
regulatory definition of adverse modification, our current 
methodological approach to conducting economic analyses of our critical 
habitat designations is to consider all conservation-related costs. 
This approach would include costs related to sections 4, 7, 9, and 10 
of the Act, and should encompass costs that would be considered and 
evaluated in light of the Gifford Pinchot ruling.
    In addition, we have received several credible comments on the 
economic analysis contending that it underestimates, perhaps 
significantly, the costs associated with this critical habitat 
designation. Both of these factors are a balancing consideration 
against the possibility that some of the costs shown in the economic 
analysis might be attributable to other factors, or are overly high, 
and so would not necessarily be avoided by excluding the area for which 
the costs are predicted from this critical habitat designation.

[[Page 4355]]

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on August 8, 2006 (71 FR 44976). We 
accepted comments on the draft analysis until September 7, 2006.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of ABM 
critical habitat. This information is intended to assist the Secretary 
in making decisions about whether the benefits of excluding particular 
areas from the designation outweigh the benefits of including those 
areas in the designation. This economic analysis considers the economic 
efficiency effects that may result from the designation, including 
habitat protections that may be co-extensive with the listing of the 
species. It also addresses distribution of impacts, including an 
assessment of the potential effects on small entities and the energy 
industry. This information can be used by the Secretary to assess 
whether the effects of the designation might unduly burden a particular 
group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The draft economic analysis found that costs associated with 
conservation activities for the ABM are forecast to range from $18.3 
million to $51.9 million in undiscounted dollars over the next 20 
years. Adjusted for possible inflation, the costs would range from 
$16.1 million to $46.9 million over 20 years, or $1.1 million to $3.1 
million annually using a three percent discount; or $14.2 million to 
$41.8 million over 20 years, or $1.3 million to $3.9 million annually, 
using a seven percent discount. Although disproportionate impacts may 
exist, the areas that may suffer these impacts are already being 
excluded due to other reasons (see ``Application of Exclusions Under 
Section 4(b)(2) of the Act'' for more detail). Therefore, the Service 
did not exclude any areas based on economics.
    A copy of the final economic analysis with supporting documents is 
included in our administrative record and may be obtained by contacting 
U.S. Fish and Wildlife Service, Branch of Endangered Species (see 
ADDRESSES) or by downloading from the Internet at http://www.fws.gov/daphne.

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 will not 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. As explained above, 
we prepared an economic analysis of this action. We used this analysis 
to meet the requirement of section 4(b)(2) of the Act to determine the 
economic consequences of designating the specific areas as critical 
habitat. We also used it to help determine whether to exclude any area 
from critical habitat, as provided for under section 4(b)(2), if we 
determine that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless we 
determine, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.

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

    Under the Regulatory Flexibility Act (RFA) (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 
effect of the rule on small entities (small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. The SBREFA also amended the RFA 
to require a certification statement.
    Small entities include small organizations, such as independent 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities

[[Page 4356]]

potentially affected, we also consider whether their activities have 
any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect ABM. Federal agencies also must consult with us if their 
activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities.
    In our economic analysis of the critical habitat designation, we 
evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of ABM and 
proposed designation of its critical habitat. This analysis estimated 
prospective economic impacts due to the implementation of ABM 
conservation efforts in five categories: residential and commercial 
real estate development activities, road construction and maintenance, 
tropical storms and hurricanes, species management and habitat 
protection activities, and recreation. We determined from our analysis 
that in four of these five categories, impacts of the ABM conservation 
efforts are not anticipated to impact small business. The small 
business entities that may be affected are private developers. Costs 
associated with residential and commercial development comprise 99 
percent of the total quantified future impacts. Total costs are 
expected to be $18.1 to $51.3 million (undiscounted) over the next 20 
years. Conservation effort costs include land preservation (set-
asides), monitoring, and predator control that may be required of new 
development activity on private land. Approximately 99 percent of 
developers in the region are considered small; thus, 1.6 small 
developers could be impacted each year. For those projects likely to be 
undertaken by a small entity, beach mouse conservation costs are 
estimated to be approximately $471,000 per typical developer. Assuming 
the annual revenues of an average small developer are $16.8 million 
(see the economic analysis for explanation of assumptions), the average 
annualized cost per project is roughly 2.8 percent of the typical 
annual sales. Therefore, we do not believe that the designation of 
critical habitat for the ABM will result in a disproportionate effect 
to small business entities. Please refer to our economic analysis of 
the critical habitat designation for a more detailed discussion of 
potential economic impacts.
    In general, two different mechanisms in section 7 consultations 
could lead to additional regulatory requirements for the approximately 
four small businesses, on average, that may be required to consult with 
us each year regarding their project's impact on ABM and their habitat. 
First, if we conclude, in a biological opinion, that a proposed action 
is likely to jeopardize the continued existence of a species or 
adversely modify its critical habitat, we can offer ``reasonable and 
prudent alternatives.'' Reasonable and prudent alternatives are 
alternative actions that can be implemented in a manner consistent with 
the scope of the Federal agency's legal authority and jurisdiction, 
that are economically and technologically feasible, and that would 
avoid jeopardizing the continued existence of listed species or result 
in adverse modification of critical habitat. A Federal agency and an 
applicant may elect to implement a reasonable and prudent alternative 
associated with a biological opinion that has found jeopardy or adverse 
modification of critical habitat. An agency or applicant could 
alternatively choose to seek an exemption from the requirements of the 
Act or proceed without implementing the reasonable and prudent 
alternative. However, unless an exemption were obtained, the Federal 
agency or applicant would be at risk of violating section 7(a)(2) of 
the Act if it chose to proceed without implementing the reasonable and 
prudent alternatives.
    Second, if we find that a proposed action is not likely to 
jeopardize the continued existence of a listed animal or plant species, 
we may identify reasonable and prudent measures designed to minimize 
the amount or extent of take and require the Federal agency or 
applicant to implement such measures through non-discretionary terms 
and conditions. We may also identify discretionary conservation 
recommendations designed to minimize or avoid the adverse effects of a 
proposed action on listed species or critical habitat, help implement 
recovery plans, or to develop information that could contribute to the 
recovery of the species.
    Based on our experience with consultations pursuant to section 7 of 
the Act for all listed species, virtually all projects--including those 
that, in their initial proposed form, would result in jeopardy or 
adverse modification determinations in section 7 consultations--can be 
implemented successfully with, at most, the adoption of reasonable and 
prudent alternatives. These measures, by definition, must be 
economically feasible and within the scope of authority of the Federal 
agency involved in the consultation. We can only describe the general 
kinds of actions that may be identified in future reasonable and 
prudent alternatives. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and this critical habitat designation. Within the 
designated critical habitat units, the types of Federal actions or 
authorized activities that we have identified as potential concerns 
are:
    (1) Regulation of activities affecting waters of the United States 
by the U.S. Army Corps of Engineers under section 404 of the Clean 
Water Act;
    (2) The Service's incidental take permitting program;
    (3) Road construction and maintenance funded by the Federal Highway 
Administration (FHA); and
    (4) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency (FEMA).
    It is likely that a developer or other project proponent could 
modify a project or take measures to protect ABM. The kinds of actions 
that may be included if future reasonable and prudent alternatives 
become necessary include conservation set-asides, management of 
competing nonnative species, restoration of degraded habitat, and 
regular monitoring. These are based on our understanding of the needs 
of the species and the threats it faces, as described in the final 
listing rule and proposed critical habitat designation. These measures 
are not likely to result in a significant economic impact to project 
proponents.
    In summary, we have considered whether our designation of critical 
habitat for ABM would result in a significant economic effect on a 
substantial number of small entities. We have determined, for the above 
reasons and based on currently available information, that it is not 
likely to affect a substantial number of small entities. Federal 
involvement, and thus section 7 consultations, would be limited to a 
subset of the area designated. The most likely Federal involvement 
could include: Corps permits, permits we may issue under section 
10(a)(1)(B) of the Act (ITPs), FHA funding for road improvements, and 
activities funded by

[[Page 4357]]

FEMA. A regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 
(Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) 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 final rule to designate critical habitat for ABM 
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 
et seq.), we make 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 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 who receive Federal 
funding, assistance, permits or 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 because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. As such, a Small Government Agency Plan is 
not required.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with the Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this final critical habitat designation 
with appropriate State resource agencies in Florida and Alabama. The 
designation of critical habitat in areas currently occupied by ABM may 
impose nominal additional regulatory restrictions to those currently in 
place and, therefore, may have little incremental impact on State and 
local governments and their activities. The designation may have some 
benefit to these governments in that the areas that contain the 
features essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the conservation 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 (Civil Justice Reform), 
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 are designating critical 
habitat in accordance with the provisions of the Endangered Species 
Act. This final 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

[[Page 4358]]

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 occupied at the time of listing that contain 
the features essential for the conservation and no Tribal lands that 
are unoccupied areas that are essential for the conservation of the 
ABM. Therefore, designation of critical habitat for the ABM has not 
been designated on Tribal lands.

Takings

    In accordance with Executive Order 12630, (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating 1,211 ac (490 ha) of lands in Baldwin County, Alabama as 
critical habitat for the Alabama beach mouse in a takings implication 
assessment. The takings implications assessment concludes that this 
final designation of critical habitat does not pose significant takings 
implications for lands within or affected by the designation.

References Cited

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

Author(s)

    The primary author of this package is the Daphne Field Office of 
the U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
2. In Sec.  17.95(a), revise the entry for ``Alabama Beach Mouse 
(Peromyscus polionotus ammobates)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (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 provide 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) 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 (such as 
buildings, aqueducts, airport runways, roads, other paved areas, and 
piers) and the land on which they are located existing within the legal 
boundaries on the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created by delineating habitats that contained one or more of the PCEs 
defined in paragraph (2) of this entry, over 2005 Baldwin County, 
Alabama color photography (UTM 16, NAD 83).
    (5) Note: Index Map (Map 1) follows:
BILLING CODE 4310-55-P

[[Page 4359]]

[GRAPHIC] [TIFF OMITTED] TR30JA07.000


[[Page 4360]]


    (6) Unit 1: Fort Morgan, Baldwin County, Alabama.
    (i) General Description: Unit 1 consists of 446 ac (180 ha) at the 
extreme western tip of the Fort Morgan Peninsula in Baldwin County, 
Alabama. This unit encompasses essential features of Alabama 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 Ft. 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; 01503.87, 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; 403970.48, 
3344745.87; 403970.48, 3344230.37; 403292.55, 3344087.17; 402583.77, 
3343995.19; 401269.00, 3343995.19; 400971.42, 3344125.04; 400976.83, 
3344206.20; 401301.47, 3344628.22; 404286.32, 3344756.22; 402854.33, 
3344659.30; 402903.74, 3344669.55; 402929.27, 3344691.88; 403288.24, 
3344682.82; 403627.98, 3344721.72; 403654.87, 3344714.12; 403590.33, 
3344665.04; 403546.85, 3344641.30; 403501.91, 3344628.03; 403337.34, 
3344622.77; 403056.19, 3344638.97
    (iii) Note: Map of Unit 1, Fort Morgan (Map 2), follows:

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    (7) Unit 2: Little Point Clear, Baldwin County, Alabama.
    (i) General Description: Unit 2 consists of 268 ac (108 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 ft south (except 
where otherwise noted) 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 on 
Map 3 in paragraph (7)(iii) of this entry and in the coordinates 
provided in paragraph (7)(ii) of this entry.
    (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), except those areas covered by incidental take 
permits shown in the maps: 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; 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; 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; 408626.67, 3344828.84; 408904.77, 
3345015.63; 409021.00, 3345003.18; 409033.45, 3344837.15; 410127.40, 
3344881.42; 409942.50, 3345003.19; 409321.94, 3344964.94; 409122.17, 
3344994.69; 409122.17, 3344839.55; 411303.93, 3344704.32; 410054.54, 
3344754.13; 410029.64, 3344741.68; 409992.28, 3344745.83; 409963.23, 
3344758.28; 408879.87, 3344720.92; 407157.29, 3344642.06; 406011.67, 
3344509.23; 405044.53, 3344417.91; 404700.02, 3344343.20; 404624.32, 
3344815.46; 404709.17, 3344488.16; 405203.36, 3344433.41; 405813.57, 
3344509.70; 406027.79, 3344616.83; 406662.44, 3344675.99; 406677.12, 
3344600.23; 407261.66, 3344729.73; 407664.18, 3344758.57; 407637.12, 
3344658.32; 408856.44, 3344833.42; 408903.73, 3344832.33; 409944.78, 
3344975.70; 409961.53, 3344931.31; 409960.68, 3344885.70; 409940.98, 
3344852.55; 410474.83, 3344831.25; 411896.05, 3344778.56; 411897.06, 
3344677.82; 411898.98, 3345357.59; 411899.47, 3345349.16; 411899.92, 
3345333.36; 411898.69, 3345292.29
    (iii) Note: Map of Unit 2, Little Point Clear (Map 3), follows:
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    (8) Unit 3: Gulf Highlands, Baldwin County, Alabama.
    (i) General Description: Unit 3 consists of 275 ac (111 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 on Map 4 in paragraph (8)(iii) of this entry and in the 
coordinates in paragraph (8)(ii) of this entry. This unit also includes 
essential features of Alabama beach mouse habitat 160 ft south of the 
centerline of Fort Morgan Parkway (except some areas to the north as 
noted in paragraphs (8)(ii) and (8)(iii) of this entry). 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), except those areas covered by incidental 
take permits shown in the maps:
    (A) Surfside Shores--412122.39, 3344896.76; 412230.61, 3344952.19; 
412407.44, 3344970.66; 412407.44, 3344997.06; 413286.34, 3345139.58; 
413283.70, 3344598.52; 411897.20, 3344677.62; 411896.72, 3344778.70; 
411901.40, 3344895.52; 412585.68, 3344637.82; 413286.36, 3345090.20; 
413224.06, 3345080.28; 413224.52, 3344927.47; 413284.56, 3344937.39
    (B) Gulf Highlands--414393.00, 3344536.62; 414393.00, 3344732.11; 
414676.12, 3344736.60; 415529.98, 3344440.00; 414671.87, 3344524.00; 
414736.29, 3344520.49; 414736.41, 3344546.27; 415324.89, 3344541.53; 
415326.46, 3344653.21; 415533.04, 3344653.83; 415290.55, 3345011.54; 
415327.74, 3345011.79; 415327.61, 3344980.39; 415290.42, 3344981.38; 
415308.84, 3344940.80; 415327.02, 3344940.72; 415327.30, 3344910.13; 
415308.70, 3344910.21; 415358.01, 3344940.99; 415376.61, 3344940.91; 
415376.48, 3344910.33; 415357.88, 3344910.41; 415291.27, 3345081.38; 
415309.04, 3345081.30; 415309.47, 3345085.02; 415291.28, 3345084.28; 
415326.74, 3345051.69; 415326.74, 3345039.99; 415181.66, 3345041.16; 
415184.00, 3345052.86; 415174.64, 3345051.69; 415174.64, 3345041.16; 
414954.68, 3345042.33; 414954.68, 3344655.06; 414920.74, 3344656.23; 
414920.74, 3344761.53; 414735.88, 3344762.70; 414735.88, 3344773.23; 
414921.91, 3344772.06; 414921.91, 3344831.73; 414737.05, 3344832.90; 
414737.05, 3344843.43; 414921.91, 3344842.26; 414923.08, 3344903.10; 
414735.88, 3344903.10; 414735.88, 3344915.97; 414924.25, 3344913.63; 
414921.91, 3344972.13; 414738.22, 3344974.47; 414738.22, 3344983.83; 
414921.91, 3344982.66; 414923.08, 3345043.50; 414738.22, 3345043.50; 
414738.22, 3345054.03; 414921.91, 3345054.03; 414921.91, 3345071.59; 
414953.51, 3345073.93; 414953.51, 3345052.86; 414953.51, 3344876.19;
    (C) Gulf Shores Plantation--414204.25, 3344552.35; 414204.25, 
3344725.37; 414343.57, 3344754.58; 414341.32, 3344543.36
    (D) Cabana Beach--415938.37, 3344420.63; 416333.53, 3344954.65; 
416756.08, 3344395.60; 416750.70, 3344919.13; 415945.72, 3344968.29
    (E) ROW--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; 416224.19, 3345470.66; 415654.96, 
3345426.61; 414973.90, 3345402.89; 414533.42, 3345521.48; 413621.96, 
3345538.42; 411899.45, 3345292.57; 411899.63, 3345333.23; 411898.97, 
3345349.21; 411898.28, 3345357.92; 416599.61, 3345528.80; 416603.89, 
3345480.95
    (iii) Note: Map of Unit 3, Gulf Highlands (Map 4), follows:

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    (9) Unit 4: Pine Beach, Baldwin County, Alabama.
    (i) General Description: Unit 4 consists of 30 ac (12 ha) on 27 
inholdings within the Perdue Unit of the Bon Secour National Wildlife 
Refuge as depicted on Map 5 in paragraph (9)(iii) of this entry and in 
the coordinates in paragraph (9)(ii) of this entry.
    (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), except those areas covered by incidental take permits shown on the 
map in paragraph (9)(iii) of this entry: 419890.08, 3344529.29; 
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; 
421930.69, 3344448.80; 421895.18, 3344446.43; 422030.12, 3344465.37; 
419842.74, 3344635.81; 419797.76, 3344640.55; 419688.86, 3344841.77; 
419740.94, 3344841.77; 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; 419690.90, 3344778.02; 
419740.44, 3344772.85; 419801.19, 3344677.57; 419842.01, 3344675.40; 
421902.16, 3344854.73; 421932.71, 3344858.24; 421999.30, 3344843.90; 
422029.66, 3344830.25; 421996.44, 3344462.00
    (iii) Note: Map of Unit 4, Pine Beach (Map 5), follows:

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    (10) Unit 5: Gulf State Park, Baldwin County, Alabama.
    (i) General Description: Unit 5 consists of 192 ac (78 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 on Map 6 in paragraph (10)(iii) of 
this entry and in the coordinates in paragraph (10)(ii) of this entry.
    (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), except those areas identified as developable in the current 
incidental take permit for the Alabama Department of Conservation and 
Natural Resources: 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; 
436572.41, 3346828.17; 36572.41, 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; 
435699.17, 3346883.42; 435754.39, 3346634.94; 435940.75, 3346652.19; 
436154.72, 3346638.39; 436368.69, 3346683.25; 436368.69, 3346790.24
    (iii) Note: Map of Unit 5, Gulf State Park (Map 6), follows:

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* * * * *

    Dated: January 12, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-270 Filed 1-29-07; 8:45 am]
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