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Tuesday,

January 30, 2007

Part II

Department of the
Interior
Fish and Wildlife Service

50 CFR Part 17
Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
the Alabama Beach Mouse; Final Rule
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DEPARTMENT OF THE INTERIOR modification of the critical habitat of excessive litigation. As a result,
would take place (in other words, other critical habitat designations are driven
Fish and Wildlife Service statutory or regulatory protections, by litigation and courts rather than
policies, or other factors relevant to biology, and made at a time and under
50 CFR Part 17 agency decision-making would not a time frame that limits our ability to
RIN 1018–AU46 prevent the destruction or adverse obtain and evaluate the scientific and
modification); and (3) designation of other information required to make the
Endangered and Threatened Wildlife critical habitat triggers the prohibition designation most meaningful.
and Plants; Designation of Critical of destruction or adverse modification In light of these circumstances, the
Habitat for the Alabama Beach Mouse of that habitat, but it does not require Service believes that additional agency
specific actions to restore or improve discretion would allow our focus to
AGENCY: Fish and Wildlife Service, habitat. return to those actions that provide the
Interior. Currently, only 476 species, or 36 greatest benefit to the species most in
ACTION: Final rule. percent of the 1,311 listed species in the need of protection.
United States under the jurisdiction of
SUMMARY: We, the U.S. Fish and Procedural and Resource Difficulties in
the Service, have designated critical
Wildlife Service (Service), are revising Designating Critical Habitat
habitat. We address the habitat needs of
critical habitat for the Alabama beach all 1,311 listed species through We have been inundated with
mouse (Peromyscus polionotus conservation mechanisms such as lawsuits for our failure to designate
ammobates) under the Endangered listing, section 7 consultations, the critical habitat, and we face a growing
Species Act of 1973, as amended (Act). section 4 recovery planning process, the number of lawsuits challenging critical
The revised designation encompasses section 9 protective prohibitions of habitat determinations once they are
approximately 1,211 acres (ac) (490 unauthorized take, section 6 funding to made. These lawsuits have subjected the
hectares (ha)) of coastal dune and scrub the States, the section 10 incidental take Service to an ever-increasing series of
habitat in Baldwin County, Alabama. permit process, and cooperative, non- court orders and court-approved
DATES: This rule becomes effective on regulatory efforts with private settlement agreements, compliance with
March 1, 2007. landowners. The Service believes that it which now consumes nearly the entire
ADDRESSES: To review comments and is these measures that may make the listing program budget. This leaves the
materials received, as well as supporting difference between extinction and Service with little ability to prioritize its
documentation used in the preparation survival for many species. activities to direct scarce listing
of this final rule, make an appointment In considering exclusions of areas resources to the listing program actions
during normal business hours with the originally proposed for designation, we with the most biologically urgent
Field Supervisor, Daphne Field Office, evaluated the benefits of designation in species conservation needs.
light of Gifford Pinchot Task Force v. The consequence of the critical
1208–B Main Street, Daphne, Alabama
United States Fish and Wildlife Service, habitat litigation activity is that limited
36526. The final rule, economic
378 F.3d 1059 (9th Cir 2004) listing funds are used to defend active
analysis, and maps are also available on
(hereinafter Gifford Pinchot). In that lawsuits, to respond to Notices of Intent
the Internet at http://www.fws.gov/
case, the Ninth Circuit invalidated the (NOIs) to sue relative to critical habitat,
daphne.
Service’s regulation defining and to comply with the growing number
FOR FURTHER INFORMATION CONTACT: ‘‘destruction or adverse modification of of adverse court orders. As a result,
Field Supervisor, Daphne Field Office, critical habitat.’’ In response, on listing petition responses, the Service’s
U.S. Fish and Wildlife Service, at December 9, 2004, the Director issued own proposals to list critically
telephone 251–441–5181 or facsimile guidance to be considered in making imperiled species, and final listing
251–441–6222. Persons who use a section 7 adverse modification determinations on existing proposals are
telecommunications device for the deaf determinations. This critical habitat all significantly delayed.
(TDD) may call the Federal Information designation does not use the invalidated The accelerated schedules of court-
Relay Service (FIRS) at 800–877–8339. regulation in our consideration of the ordered designations have left the
SUPPLEMENTARY INFORMATION: benefits of including areas in this final Service with limited ability to provide
designation. The Service will carefully for public participation or to ensure a
Role of Critical Habitat in Actual defect-free rulemaking process before
manage future consultations that
Practice of Administering and making decisions on listing and critical
analyze impacts to designated critical
Implementing the Act (16 U.S.C. 1531 et habitat proposals, due to the risks
habitat, particularly those that appear to
seq.) associated with noncompliance with
be resulting in an adverse modification
Attention to and protection of habitat determination. Such consultations will judicially imposed deadlines. This in
is paramount to successful conservation be reviewed by the Regional Office prior turn fosters a second round of litigation
actions. The role that designation of to finalizing to ensure that an adequate in which those who fear adverse
critical habitat plays in protecting analysis has been conducted that is impacts from critical habitat
habitat of listed species, however, is informed by the Director’s guidance. designations challenge those
often misunderstood. As discussed in On the other hand, to the extent that designations. The cycle of litigation
more detail below in the discussion of designation of critical habitat provides appears endless, and is very expensive,
exclusions under the Act’s section protection, that protection can come at thus diverting resources from
4(b)(2), there are significant limitations significant social and economic cost. In conservation actions that may provide
on the regulatory effect of designation addition, the mere administrative relatively more benefit to imperiled
under the Act’s section 7(a)(2). In brief, process of designation of critical habitat species.
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(1) Designation provides additional is expensive, time-consuming, and The costs resulting from the
protection to habitat only where there is controversial. The current statutory designation include legal costs, the cost
a Federal nexus; (2) the protection is framework of critical habitat, combined of preparation and publication of the
relevant only when, in the absence of with past judicial interpretations of the designation, the analysis of the
designation, destruction or adverse statute, make critical habitat the subject economic effects and the cost of

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requesting and responding to public organizations and individuals directly Specific Peer Reviewer Comments
comment, and in some cases the costs addressing the proposed revised critical (1) Comment: Two peer reviewers
of compliance with the National habitat designation and the DEA. suggested that the ABM may persist in
Environmental Policy Act (NEPA; 42 Between February 1, 2006, and areas outside of its present known
U.S.C. 4321 et seq.). These costs, which September 7, 2006, we also received 4 range, including open, sandy portions of
are not required for many other comments from peer reviewers. Gulf State Park north of the scrub dunes
conservation actions, directly reduce the Collectively, 36 commenters supported and east of Lake Shelby; additional
funds available for direct and tangible the proposed revised designation, and scrub habitat within central and
conservation actions. 16 opposed the revised designation. Six northern portions of Little Point Clear;
Background letters were either neutral or expressed and sand dunes along the Bon Secour
both support of and opposition to National Wildlife Refuge’s (Refuge)
It is our intent to discuss only those certain portions of the proposal.
topics directly relevant to the Sand Bayou Unit.
Comments received were grouped into Our Response: Section 4 of the Act
designation of critical habitat in this eight general issues specifically relating
rule. For information on the Alabama requires that we designate critical
to the proposed revised critical habitat habitat on the basis of the best scientific
beach mouse (ABM), please refer to the designation and are addressed in the
proposed rule published in the Federal data available. We agree that the ABM
following summary and incorporated may exist in areas outside of its current
Register on February 1, 2006 (71 FR into the final rule as appropriate.
5516) or the final listing determination known range. However, we do not have
(June 6, 1985, 50 FR 23872). Peer Review trapping data indicating ABM presence
in these areas at this time. Both Little
Previous Federal Actions In accordance with our policy Point Clear and the referenced portions
published on July 1, 1994 (59 FR of Gulf State Park have been trapped on
Information about previous Federal
34270), and current Departmental occasion, or subjected to qualitative
actions for the ABM can be found in our
guidance, we solicited expert opinions tracking and habitat surveys
proposal for critical habitat for the ABM
from six knowledgeable individuals (Sneckenberger 2001, p. 13; Service
published in the Federal Register on
with scientific expertise that included 2003, p. 2; Falcy 2006, p. 1). ABM were
February 1, 2006 (71 FR 5516). On
familiarity with the species, the documented in the southern portion of
August 8, 2006, we announced the
geographic region in which the species Little Point Clear earlier this summer
availability of our draft economic
occurs, and/or conservation biology (Falcy 2006, p. 1) but not in more
analysis (DEA), and we reopened the
principles. We received responses from interior areas. We are aware of one
public comment period on the proposed
four of the peer reviewers. Peer reviewer qualitative survey in the Sand Bayou
rule and provided the time, date, and
comments are addressed in the Unit where no evidence of beach mice
location of our public hearing, as well
following summary and incorporated was encountered (Sneckenberger 2001,
as updated acreage for the critical
into the final rule as appropriate. p. 14). Much of the referenced areas are
habitat units (71 FR 44976). The
reopened public comment period ended The peer reviewers generally thickly vegetated, contain compacted
on September 7, 2006. concurred with our methods and sand, are isolated from existing known
conclusions and provided additional ABM habitat, do not possess the
Summary of Comments and information, clarifications, and requisite primary constituent elements
Recommendations suggestions to improve the final critical (PCEs) identified in the proposed rule,
We requested written comments from habitat rule. Three of the four peer and are therefore not found to be
the public on the proposed critical reviewers specifically stated that essential to the conservation of the
habitat revision in the proposed rule redesignation of critical habitat to species at this time. We recognize that
published on February 1, 2006 (71 FR include interior scrub habitat is designation of critical habitat may not
5516) and in our August 8, 2006, warranted. Information provided by include all of the habitat areas that may
Federal Register document (71 FR peer reviewers included suggestions for eventually be determined to be
44976). We also contacted appropriate sampling techniques and population necessary for the recovery of the
Federal, State, and local agencies; viability analyses that would better species. For this reason, critical habitat
scientific organizations; and other inform future ABM conservation efforts, designations do not imply that habitat
interested parties, and invited them to as well as comments on how to best outside the designation is unimportant.
comment on the proposed rule. We also determine recovery following (2) Comment: One peer reviewer
issued press releases and published hurricanes. Suggestions were also made stated that it was inadequate to limit
legal notices in the Press-Register and and language was provided to clarify ABM critical habitat to those areas
Islander newspapers. Based on 12 biological information or make the known to be occupied at the time of
requests received during the public proposed rule easier to follow and listing since much information has been
comment period, we held a public review. learned about ABM distribution since
hearing and information meeting on We reviewed all comments received then.
August 24, 2006, at the Adult Activity from the peer reviewers and the public Our Response: Critical habitat is
Center in Gulf Shores, Alabama. for substantive issues and new defined in section 3 of the Act as: (i) The
During the comment period that information regarding ABM critical specific areas within the geographical
opened on February 1, 2006, and closed habitat, and addressed them in the area occupied by a species, at the time
on April 3, 2006, we received 13 following summary. Several of the peer it is listed in accordance with the Act,
comments from organizations or reviewers provided editorial comments on which are found those physical or
individuals directly addressing the that are addressed in the body of this biological features (I) essential to the
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proposed revised critical habitat rule. Minor editorial comments on the conservation of the species and (II) that
designation. During the comment period Background section of the proposed rule may require special management
that opened on August 8, 2006, and (not found in final rules) have been considerations or protection; and (ii)
closed on September 7, 2006, we incorporated into the administrative specific areas outside the geographical
received 45 comments from record. area occupied by a species at the time

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

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determined to be necessary for the species, or draft HCPs that cover the throughout the suspected range of the
recovery of the species. Critical habitat species and have undergone public subspecies in 2003 (the year prior to
designations therefore do not signal that review and comment (pending HCPs), Hurricane Ivan) and found ABM in
habitat outside the designation is meet this criterion. The HCPs provide areas where they had never been
unimportant or may not be required for assurances that the conservation recorded (Service 2003, pp. 1–3; Farris
recovery. measures they outline will be 2003, pp. 1–5). These trapping data led
(7) Comment: One peer reviewer implemented and effective, and the us to produce the ABM habitat maps
stated (in reference to a comment in the designation of critical habitat provides (discussed in detail in Comment 13) and
proposed rule, 71 FR 5516; February 1, no additional benefits in these areas will be useful in our ongoing review of
2006; p. 5521) that Oli et al. (2001) did (species and their habitat are protected the recovery needs of the subspecies.
not provide any data supporting the by the conditions of the incidental take (11) Comment: One commenter,
value of multiple populations. permit (ITP) and section 9 of the Act). referring to the information presented in
Our Response: Oli et al. (2001) There are 51 areas currently under the background section of the proposed
performed a population viability HCP ITPs collectively containing 261 ac rule (71 FR 5516; February 1, 2006; p.
analysis for four distinct populations of (105 ha) of habitat we have identified as 5522), stated that they were not aware
beach mice, two of which were ABM essential to ABM conservation (see of data supporting the formal definition
populations (Fort Morgan and Perdue Table 2). During HCP development, we of ABM population cycles beyond the
Units of the Refuge). Their results worked with all property owners to seasonal variation that occurs on an
indicated that even the Perdue Unit ensure that ABM impacts were avoided, annual basis.
population (the most robust) was minimized, or mitigated to the Our Response: We concur with this
susceptible to extirpation when impacts maximum extent practicable. Property statement, and it was our intent to
from catastrophic events, such as owners with HCPs have indicated that provide evidence for the existence of
hurricanes, are considered (p. 114). they intend to abide by their plan and seasonal population cycles in the
Later in the document, they addressed those with Service-issued ITPs based on proposed rule. Rave and Holler (1992,
the importance of multiple populations the HCP are required to comply with the pp. 351–352) describe the seasonal
for beach mouse conservation and ITP. All permits and plans require variation in ABM populations at the
warned against additional fragmentation controlling of cats and refuse, planting Perdue and Fort Morgan Units of the
of habitat (pp. 116–117). While this with native vegetation, minimizing Bon Secour National Wildlife Refuge,
work was a population viability analysis developed footprints, and protecting and Sneckenberger (2001, pp. 48–51)
that must be viewed with the habitat outside of approved footprints. describes the seasonal availability of
appropriate caveats (for example, Reed In addition, many of the ITPs require ABM food sources in the primary and
et al. 1998), we believe that it seasonal ABM monitoring, the secondary dunes. ABM populations
emphasizes the importance of multiple development of ABM interpretive likely fluctuate over a longer temporal
core populations and habitat continuity. materials, and the establishment of period in response to tropical storms
(8) Comment: One peer reviewer, endowments for habitat restoration. The and hurricanes, but this has never been
referring to the proposed rule (71 FR conditions of the ITPs are legally described in the literature to our
5516; February 1; p. 5517), stated that enforceable, and, therefore, ABM and knowledge.
Rave and Holler (1992) did not address their habitat are protected by section 9
time of activity, burrow location, or of the Act. Critical habitat has no General Comments
feeding habits of ABM. This reviewer additive value in this situation. In fact, Comments Related to Regulatory Burden
suggested Bowen (1968) or Garten critical habitat, often incorrectly and Private Property Concerns
(1976) as better references. perceived to preclude development, can
Our Response: We concur with this adversely affect existing conservation (12) Comment: Several commenters
comment. Bowen (1968, pp. 2–4), relationships. We, therefore, have found feel that the proposed critical habitat
Sneckenberger (2001, pp. 51–52), Lynn that the benefit of excluding areas designation is a violation of their
(2000, pp. 30–33), and Moyers (1996, covered by HCPs on 51 properties property rights. One commenter
pp. 2, 25–26, 29) all serve as better outweighs the benefit of including these mentioned that critical habitat
references and collectively describe properties in the final designation. represents ‘‘condemnation without
time of activity, burrow location, and Please see the ‘‘Application of Section compensation’’ and believes that if land
feeding habits of beach mice. We have 3(5)(A) and 4(a)(3) and Exclusions is designated, it cannot be developed.
corrected our references. On the other Under Section 4(b)(2) of the Act’’ Our Response: Critical habitat does
hand, Garten (1976), addresses section for a more thorough discussion not mean that private lands would be
aggressive behavior in inland subspecies of HCP sites and critical habitat. taken by the Federal government or that
of Peromyscus polionotus and is, (10) Comment: One commenter, reasonable uses would be restricted. The
therefore, not applicable. referring to information presented in the designation of critical habitat does not
(9) Comment: Three peer reviewers background section of the proposed rule affect land ownership or establish a
and several commenters expressed (71 FR 5516, 5518, and elsewhere), refuge, wilderness, reserve, preserve, or
concerns over the exclusion of areas stated that there are no known other conservation area. A critical
under ABM habitat conservation plans benchmarks for monitoring ABM habitat designation has no effect on
(HCPs) from the proposal. Many recovery because the habitat is always situations where a Federal agency is not
suggested that HCPs are often in a state of flux due to hurricane involved—for example, a landowner
inadequate, are subject to frequent impacts. The commenter suggested undertaking a project on private land
violations, and/or are less protective using pre-Ivan ABM populations to that involves no Federal funding or
than critical habitat. gauge ABM recovery. permit. The Act only requires a
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Our Response: Private lands may be Our Response: ABM habitat is consultation if there is a Federal
excluded under section 4(b)(2) of the continually changing as a result of nexus—that is, any activity a Federal
Act if the benefits of exclusion outweigh coastal processes and impacts from agency funds, authorizes, or carries out
the benefits of inclusion. In our view, tropical cyclones. The Service that may jeopardize the survival of a
legally operative HCPs covering the conducted extensive live-trapping threatened or endangered species. The

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

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protect them. We have been inundated middle of the Fort Morgan Peninsula. both core populations and habitat
with lawsuits for our failure to designate ABM habitat in the Perdue Unit does continuity would not be possible
critical habitat and face a growing not meet the definition of critical habitat without the conservation of habitat on
number of lawsuits challenging our under section 3(5)(A) of the Act because private lands connecting the various
designations. This revision of critical it is protected under the Refuge’s federally owned properties.
habitat was brought about by a petition Comprehensive Conservation Plan (see (21) Comment: Several commenters
to revise critical habitat and subsequent ‘‘Application of Exclusions Under suggested that the ITPs issued to Beach
legal action. This cycle appears endless Section 4(b)(2) of the Act’’ section for Club West and Gulf Highlands
and keeps us from focusing scarce more details). The remainder of the developments (but currently held in
conservation resources where they are Federal lands identified as essential to abeyance) should have been excluded
most needed. Nonetheless, under the conservation of the species are either because they do not meet the
section 4(a) of the Act, we are required included as critical habitat. definition of critical habitat in 3(5)(A) or
to designate critical habitat concurrently Of the various federally owned they are eligible for exclusion under
with listing a species as endangered or parcels on the Fort Morgan Peninsula, 4(b)(2).
threatened to the maximum extent the Perdue Unit is the only Federal land Our Response: These developments
prudent and determinable. containing all of the PCEs. It likewise have been excluded from the final
(18) Comment: One commenter said sustains an ABM population. However, designation of critical habitat under
that the Service was wrong in saying the Perdue Unit is just one of several section 4(b)(2) of the Act based on their
that a clear ‘‘Federal nexus’’ (71 FR ABM populations, and many studies conservation efforts (including the
5516, 5530) exists on HCP/ITP sites. The indicate the importance of multiple habitat conservation plan). Please see
commenter maintains that the only populations to species recovery. the ‘‘Application of Exclusions Under
Federal involvement that remains is the Conservation of a species over a range Section 4(b)(2) of the Act’’ section for
Service’s ability to enforce ITP of habitat types where it is known to more information.
conditions. occur reduces the chance of losing (22) Comment: One commenter
Our Response: We used the term disjunct populations, which represent questioned why the areas south
nexus (a synonym for connection or important conservation value for their (seaward) of ADEM’s Coastal
link) to demonstrate that once ITPs are adaptation to local environmental Construction Control line (CCCL) were
issued, the Service is still involved in conditions and their genetic uniqueness not excluded because of the baseline
monitoring permittee compliance with (Fahrig and Merriam 1994, p. 50).
protections.
permit terms and conditions on sites Preservation of natural populations
Our Response: While it is true areas
and retains the ability to enforce ITP throughout the range of each subspecies
seaward of the CCCL receive protection
conditions. We have rewritten this text is therefore crucial, as the loss of a
from the State, they do not qualify for
and omitted the term nexus, which is population of beach mice can result in
exclusion under section 4(b)(2) of the
frequently used in section 7 a permanent loss of alleles (Wooten &
Act. There is no species-specific
consultations, to avoid any further Holler 1999, p. 17). This loss of genetic
variability cannot be regained through management plan addressing ABM
confusion.
(19) Comment: One commenter stated translocations or other efforts. issues (see Comment 2 or ‘‘Application
that the habitat for this species is under We believe that private lands are of Exclusions Under Section 4(b)(2) of
such pressure that, unless regulations essential to the conservation of multiple the Act’’ section for more information
protect habitat, it is likely that the populations and therefore essential to on these criteria). Furthermore, many
subspecies will decline. conservation of the subspecies. Two threats to beach mouse conservation,
Our Response: We acknowledge that population viability analyses conducted including artificial lighting and
loss and fragmentation of habitat is one on the ABM support this theory. Oli et extensive recreational pressure, still
of the main threats to ABM (71 FR 5516; al. (2001, pp. 113–114) suggest that persist there. Therefore, these areas have
February 1, 2006; p. 5518). Please refer when hurricanes are considered, even been included as critical habitat.
to our response to Comment 17 for more the stable ABM population at the (23) Comment: Two commenters
information on the regulatory value of Perdue Unit is at ‘‘substantial risk.’’ A suggested that the Service should
critical habitat. Population Viability Analysis (PVA) designate only the conservation areas of
conducted by the Conservation Breeding sites with a Service-approved HCP.
Specific Comments Related to Suggested Specialist Group (Vortex model) Our Response: If an area meets our
Alternatives to Designating Critical likewise shows the importance of both criteria for designating ABM critical
Habitat total overall habitat, and habitat habitat (see Comment 2), then it is
(20) Comment: Several commenters continuity. Without dispersal among eligible for inclusion in critical habitat.
believe that the Federal government public lands through private lands, the If the area is covered by a Service-
presently owns sufficient habitat for PVA results project the ABM to have a approved HCP, then it may be removed
ABM survival and recovery. 41.2 percent ± 1.1 percent likelihood of from the designation under section
Our Response: We have determined extinction (Traylor-Holzer 2006, p. 20). 4(b)(2) of the Act if we determine that
that 2,281 ac (923 ha) of land are If all privately owned habitat between the benefits of excluding HCPs outweigh
essential to ABM conservation. Roughly the public lands is lost, the estimate of the benefits of inclusion (see Comment
50 percent of this is public land owned probability of extinction increases 2 and ‘‘Application of Exclusions Under
by the Federal government. The (Traylor-Holzer 2006, p. 20). There are Section 4(b)(2) of the Act’’ section).
majority of this (47 percent) is owned by many limitations with population Developed areas (for example, building
the Service and located on the Perdue viability analyses, and we must view footprints and parking areas) associated
Unit of Bon Secour National Wildlife estimates of extinction probability with with the HCP do not possess natural
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Refuge, but lesser amounts include caution (Reed et al. 2006; Morris and ABM habitat and are, therefore, not even
approximately 30 ac (12 ha) of Refuge Doak 2002, pp. 12–13). However, we considered for designation. As such, it
land within Fort Morgan State Historic believe that these estimates emphasize is specifically the conservation areas
Site and Bureau of Land Management the importance of core populations and associated with HCPs that are excluded
(BLM) properties spread throughout the habitat continuity. This maintenance of under section 4(b)(2).

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(24) Comment: Several commenters those wishing to add to their houses, Service and the public and imposing
noted that the French Caribbean would also be eligible for inclusion. unnecessary regulation.
development was not mentioned as Upon signing a certificate of inclusion Our Response: We agree that critical
critical habitat and maintain that it is into the rangewide program, landowners habitat is often misunderstood and
eligible for exclusion under 4(b)(2) of would be required to pay a one-time results in controversy (see our response
the Act. conservation fee that would apply to Comment 17). However, we will
Our Response: The Service completed towards ABM conservation projects continue to work with the general
a formal consultation under section 7 of such as cogongrass (Imperata cylindrica) public and affected agencies to recover
the Act on January 20, 2000, with the removal or the construction of the ABM and assist landowners with the
U.S. Army Corps of Engineers boardwalks. The rangewide HCP would, environmental review of their projects
(USACOE) for the French Caribbean therefore, provide more mitigation to the best of our ability. We are
resort. We issued an incidental take funding and options than traditional, excluding 51 areas covered by HCPs–
exemption for all ABM within a 3.7 acre individual ITPs. ITPs from this designation (see response
project impact area. The wetland fill While we acknowledge the City of to comment 9 and the ‘‘Application of
permit issued for this project expired in Gulf Shores’ efforts in developing this Exclusions Under Section 4(b)(2) of the
2005. However, the developers of Beach draft plan, we are unable to exclude it Act’’ section).
Club West and Gulf Highlands have from critical habitat at this time for two Comments Related to Criteria and
agreed not to pursue this project, and reasons: (1) The plan has not yet been Methods Used To Designate Critical
the French Caribbean site will now be completed or undergone public review Habitat
part of the conservation area in their and (2) enrollment in the plan is
HCP. It is being excluded under section (29) Comment: One commenter stated
voluntary, and there is, therefore, no
4(b)(2) of the Act (see ‘‘Application of that the designation appears arbitrary
way to know which landowners will
Exclusions Under Section 4(b)(2) of the and questions how areas were selected
choose to enroll (this is further
Act’’ section for more details). for designation.
complicated by areas having the Our Response: We began our
(25) Comment: One commenter potential to be rezoned to higher density
suggested that conservation efforts designation by determining those areas
development). The designation of known to be occupied by the species at
should be voluntary and involve critical habitat should not jeopardize the
partnerships instead of designating the time of listing and those found to be
development of the rangewide HCP. The occupied since listing. This was
lands as critical habitat.
Service, in conducting its biological determined by consulting live-trapping
Our Response: The Service
encourages voluntary conservation review of the rangewide HCP, will data, published literature, the original
efforts and partnerships that would simply have to determine if the listing rule, and our ABM habitat map
provide management or enhancement of proposed project will adversely modify (see response to Comment 13). Within
habitat for threatened and endangered or destroy designated critical habitat. these areas, we then determined the
species. However, designation of critical We already have to determine whether subset of acreage that possessed one or
habitat does not influence the extent of or not the project will adversely affect more of the PCEs. This was determined
conservation efforts recommended for or jeopardize the ABM, an action through site visits, the review of 2001
endangered species habitat on public informed by analyzing impacts to ABM and 2005 aerial photography, LIDAR
lands. One benefit of the critical habitat habitat, regardless of whether or not topographic data, and hurricane storm
designation process is the increased critical habitat is designated. We look surge models. We then removed any
awareness to the public of the forward to continuing our conservation areas that were highly isolated,
importance that public lands have for relationship (and HCP–ITP streamlining fragmented, or degraded. After this, we
the species. This often leads to efforts) with the City of Gulf Shores and were left with 2,281 ac (923 ha) of ABM
constructive interagency discussions, working with it to ensure that the habitat considered to be essential to the
creative solutions to public use and rangewide HCP does not adversely conservation of the subspecies. After
habitat management issues, and modify critical habitat. removing areas that do not meet the
strengthened partnerships. (27) Comment: One commenter definition of critical habitat under
(26) Comment: One commenter suggested that the Service develop a section 3(5)(A) of the Act because
suggested that the proposed rangewide procedure for exempting (excluding) special management is not needed, or
HCP with the City of Gulf Shores should future HCPs from designated critical that are eligible for exclusion under
be excluded from critical habitat under habitat. section 4(b)(2), we arrive at the current
section 4(b)(2) to promote regulatory Our Response: Critical habitat is a designation of 1,211 ac (490 ha) of
certainty and cooperative conservation. rulemaking process, and any future critical habitat. Please see the ‘‘Criteria
Our Response: The State of Alabama changes to critical habitat would Used To Identify Critical Habitat’’
was awarded monies under our Habitat involve additional rulemaking. Because section for more information. Please
Conservation Planning grants program this is expensive and consumes large note that not all ABM habitat meets
to develop, in conjunction with the amounts of already limited staff time, it these criteria. Many areas that are small
Service, a rangewide HCP for single- is not practical to exclude every future and isolated (for example, along S.R.
family home and duplex developments. approved HCP case by case. We can 180 north of the Perdue Unit), degraded
The funds were provided to the City of only exclude those properties that meet by anthropogenic disturbances such as
Gulf Shores. This HCP is still in draft our standards for either exemption or gravel contamination, are highly
form and has not yet undergone public exclusion under 3(5)(A) or 4(b)(2) of the fragmented or have light pollution (for
review. The draft HCP could potentially Act before the publication date of this example, areas in the Little Point Clear
cover all future single-family and final rule. Unit between the S.R. 180 corridor and
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duplex projects on the Fort Morgan (28) Comment: One commenter stated the CCCL line) may contain mice, but
Peninsula (approximately 700 lots), and that the failure to exclude areas from may be population sinks and therefore,
would substantially streamline the critical habitat will result in a more do not have the features that are
HCP–ITP process for this class of onerous (and far less effective) Act by essential to the conservation of the
development. Existing landowners, and damaging relationships between the species. We are identifying the subset of

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ABM habitat that is truly essential to the have the features that are essential to the 2 and 3. Areas south of the CCCL, while
continued survival and conservation of conservation of the species or, for areas overwashed and flattened by multiple
the subspecies. not occupied at the time of listing, that storms in 2004 and 2005, are recovering
(30) Comment: One commenter stated are essential to the conservation of the natural topography and vegetation and
that the proposed critical habitat seems species. These areas total 2,281 acres. Of provide both ABM habitat and east-west
to be based on the Vortex population this acreage, we are designating those habitat continuity (PCEs 2 and 4). See
viability analysis conducted for the areas that meet the definition of critical ‘‘Primary Constituent Elements’’
subspecies, which has problems, habitat (see Comment 2) and that are not discussion.
including an unrealistically high protected by secure habitat conservation (36) Comment: One commenter stated
estimated probability of persistence. plans. Some areas that are occupied by that the proposal does not explain PCEs
Our Response: Our criteria for ABM are not included in the in sufficient detail to allow their
deciding what areas would be included designation. These areas do not meet the protection during the consultation
in the designation did not involve the criteria for inclusion and, therefore, do process.
Vortex model directly, but rather an not have the features that are essential Our Response: The original PCEs for
analysis of trapping records in to the conservation of the species. The the ABM were defined as ‘‘dunes and
conjunction with mapping tools (please designation, when combined with ABM interdunal areas, and associated grasses
see previous comment). However, the habitat on the Perdue Unit of the Refuge and shrubs that provide food and cover
results from Vortex, coupled with other and the areas excluded because of (June 6, 1985, 50 FR 23884).’’ We
PVAs (Oli et al. 2001) and published conservation plans, represents the best believe that the new PCEs contain
literature, led us to incorporate habitat remaining coastal dune and scrub greater detail, are more comprehensive,
continuity into the designation. habitat in coastal Alabama, and those and represent a significant improvement
(31) Comment: Two commenters areas that contain the physical and over the PCEs from the original
questioned how the exclusion of habitat biological features essential to the designation. They also incorporate
on the Refuge will not result in the conservation of the subspecies. disturbances from storms, allowing
extinction of the subspecies. (33) Comment: Several commenters PCEs to be readily identified even
Our Response: In the proposed rule, requested that we remove our statement following damage from tropical
we stated that approximately 1,063 (420 that ‘‘a benefit of excluding HCPs is to cyclones and freshwater flooding. We
ha) of ABM habitat on the Perdue Unit promote additional conservation therefore believe the PCEs to be easily
of the Refuge was essential to ABM agreements and actions that we would identified (under all conditions) during
conservation, but did not meet the not be able to achieve without our the consultation process.
definition of critical habitat under partners.’’ (37) Comment: Several commenters
section 3(5)(A) of the Act (71 FR 5516, Our Response: We believe this suggested removing PCE 5 on the basis
5529). We have reduced this area to 807 statement to be true. There is no need that a natural light regime could be
ac (327 ha) based on new tracking to designate areas that are included in found in any location that is not
(Leblanc D., Service, Personal an HCP that provides conservation developed.
Communication 2006) and trapping benefit to the species. The designation Our Response: Excessive artificial
(Falcy 2006) data, detailed review of of critical habitat serves no additive light has been shown to be detrimental
2005 aerial photography, and value and can damage existing to beach mice, and, therefore, a natural
subsequent site visits. Much of the relationships between the permittee and light regime is a physical feature
northwestern Perdue Unit is densely our agency. essential to ABM conservation. An area
vegetated and highly fragmented by (34) Comment: One commenter was considered for designation where it
wetlands and cannot be considered questioned why only a small subset of possesses one or more of the PCEs and
essential to ABM conservation at this the acreage identified as ABM habitat is at least one of the following
time. The 807 acres (327 ha) that we being designated as critical habitat. characteristics: (1) Supports a core
identified as essential to the Our Response: Not all areas where population of beach mice; (2) was
conservation of the species simply do ABM have been captured meet our occupied by ABM at the time of listing;
not meet the definition of critical habitat criteria for inclusion into the (3) or is currently occupied by ABM and
under 3(5)(A) of the Act. These areas are designation. Please refer to Comments has been determined to be essential to
part of a National Wildlife Refuge that 13 and 29 for more information. the conservation of the species.
manages specifically for ABM (35) Comment: One commenter Therefore, no areas were identified as
conservation, and therefore do not maintains that critical habitat was essential to ABM conservation based
require special management designated south of the CCCL and along solely on a natural light regime.
considerations or protection. They are the S.R. 180 corridor because it was
available for ABM conservation in convenient. Several commenters Comments Related to Mapping
perpetuity, and their exemption from questioned the value of the habitat (38) Comment: One commenter asked
critical habitat has no bearing on the south of the CCCL. how much of the Surfside Shores
continued survival and recovery of the Our Response: Habitat was designated subdivision is within the critical habitat
species. between S.R. 180 and the CCCL within boundaries.
(32) Comment: Several commenters Unit 2 because it provides natural Our Response: We are designating
maintained that more habitat needs to connectivity between two core ABM approximately 75 ac (30 ha) of ABM
be included, or that conservation is not populations: Fort Morgan and the Gulf habitat within Surfside Shores.
just described in the Act as protecting Highlands-Perdue Unit. These stretches Designated critical habitat generally
the status quo but as eventually of frontal dunes, scrub habitat, and open stretches from the mean high water line
removing the subspecies from the list sand flats contain less gravel debris, landward to the wetland swale located
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(recovery). human structures, and artificial light between Driftwood and Palmetto Drives,
Our Response: Through this critical than the neighborhoods between the and from Kiva Dunes in the east to
habitat revision, we have identified all two east-west pathways. Unit 2 was Morgantown in the west. Housing
of the areas that we believe, according designated primarily on the basis of PCE footprints, driveways, and small areas or
to the best available science at this time, 4, while some areas also contain PCEs lots that do not contain one or more

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PCEs are not included in the private ownership. This habitat patch is Gulf State Park was occupied at the time
designation. UTM coordinates and approximately 0.4 miles (0.6 kilometers) of listing, and possesses all PCEs except
general maps of the designation are east and 0.4 miles (0.6 kilometers) north PCE 5. While ABM have twice been
found below. Consult our Web site at of other areas identified as essential to extirpated from the site (see Unit 5
http://www.fws.gov/daphne, or visit the the conservation of the subspecies, and description below) it nonetheless
Refuge headquarters, 12295 State therefore isolated. We have eliminated it possesses the physical and biological
Highway 180, Gulf Shores, or our from critical habitat. Trapping along the features essential to the conservation of
Daphne Field Office (see ADDRESSES) for S.R. 180 right-of-way here in 2003 the subspecies. Hurricanes are one of
detailed aerial photography outlining yielded no beach mouse captures (Farris the main threats to the ABM (June 6,
the designation. 2003). However, this area is still 1985; 50 FR 23879–80; Service 2004,
(39) Comment: One commenter stated included in our ABM habitat maps (see 2005). Because the ABM is a narrowly
that the proposed rule should have Comment 13) and any mice occurring endemic subspecies restricted to less
contained maps and details of the there are protected under section 7 or than 34 miles of coastline, one major
original designation, so that readers section 9 of the Act. Impacts to ABM hurricane could easily affect the entire
could better assess changes between the habitat there will still have to be range of the species. Impacts within
original (1985) and revised designations. reviewed by the Service. individual hurricanes, however, can
Our Response: The original (42) Comment: One commenter vary greatly in intensity, and wide
designation of critical habitat, questioned our assertion that the fluctuations in storm surge and wave
encompassing approximately 1,034 proposed critical habitat was spread run-up are possible depending on
acres of primary and secondary dunes evenly throughout the historic range of bathymetry, beach configuration, and
and 10.6 miles (17 km) of coastline, was the subspecies. variations in wind speed and waves
published in the Federal Register on Our Response: In the proposed rule within the storm. Protecting multiple
June 6, 1985 (50 FR 23872). Maps of the (February 1, 2006; 71 FR 5516), we populations, representative of the
original designation are in the public suggested that critical habitat was natural range of the subspecies,
domain and, therefore, were not spread evenly throughout the historic therefore, would likely increase the
reprinted. These maps were available range of the subspecies. This was in chance that at least one population
for public inspection at the field office error. The critical habitat is distributed within the range of a subspecies will
during both comment periods. throughout the western range of the survive episodic storm events and
(40) Comment: One commenter stated subspecies, with a small portion (Unit 5) persist while vegetation and dune
that the area north of Adair Lane in the being found in the center of the historic structure recover. The history of the
Cabana Beach subdivision did not range. Much of the eastern and central closely related Perdido Key beach
contain PCEs. portions of the range no longer possess mouse clearly illustrates the need for
Our Response: We visited Adair Lane ABM or ABM habitat due to multiple populations (a now potentially
and agree with this assessment. Habitat development. extirpated population was the source of
north of Adair Lane consists of a the two remaining populations of the
wetland swale with intermixed Comments Related to Site-Specific
subspecies (Holler et al. 1989, pp. 398–
maritime forest dominated by young Areas
399)). Furthermore, Gulf State Park,
pine trees. We have revised the (43) Comment: Critical habitat which, although isolated, is capable of
designation in this area to include only designation along the S.R. 180 (Fort holding a self-sustaining population of
those areas south of Adair Lane. We also Morgan Road) corridor would preclude mice due to its size, could prove
removed an area along the S.R. 180 utility companies from rapidly important in the event of unforeseen
corridor between Veterans Road and accessing lines in the event of a water threats to connected populations on the
Martinique that is actually maritime or sewer line break. Fort Morgan Peninsula, such as disease.
forest, and does not contain the Our Response: Critical habitat (45) Comment: Several commenters
requisite PCEs. These changes resulted designation would not interfere with questioned why areas of the S.R. 180
in approximately 10 ac (4 ha) being these activities. When critical habitat is right-of-way south of the road were
removed from the designation. Please designated, Federal agencies are designated, but areas to the north were
see the ‘‘Summary of Changes from required to confer with the Service on not.
Proposed Rule’’ section and maps for any action (including actions that Our Response: The State of Alabama
more information. agencies carry out themselves, fund, or owns the S.R. 180 right-of-way. State
(41) Comment: One commenter authorize) that is likely to result in ownership extends 160 ft (49 m) both
pointed out that a small portion of land destruction or adverse modification of north and south of the roadway
along S.R. 180 identified as not meeting critical habitat. The routine centerline. Scrub habitat to the south is
the definition of critical habitat because maintenance or emergency repair of generally more open and, therefore,
it is part of Refuge property is actually water and sewer lines adjacent to Fort more suitable for ABM. Accordingly, it
private. Two commenters maintain Morgan Road is not a Federal action. was included in this revised
there are plans to develop this property, Furthermore, utility line maintenance designation. In fact, several more open
and, therefore, it must be included in may actually benefit ABM conservation areas to the north were also included,
critical habitat. by thinning out dense vegetation (see especially in the western portions of
Our Response: We have reduced the Unit 2 description below). Unit 2 and Unit 3. We have updated our
area of the Refuge identified as having (44) Comment: Several commenters Unit 2 and 3 descriptions to include
the features essential to the conservation questioned why Gulf State Park should commentary on these small sections
of the species from 1,063 (430) ha to 807 be included in the proposal when there north of the roadway.
acres based on new information (see are currently no ABM and the habitat is (46) Comment: One commenter stated
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Comment 31 and ‘‘Summary of Changes susceptible to flooding during hurricane that feral cats are a major threat to ABM
from Proposed Rule’’ section). events. and provided an example of a cat
Approximately 20 ac (8 ha) of ABM Our Response: Critical habitat in Gulf population within Gulf State Park on
habitat exists in the referenced area, of State Park represents the easternmost Perdido Key at the entrance to Ono
which approximately 13 ac (5 ha) are in extent of the present-day ABM range. Island.

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Our Response: This comment refers to (49) Comment: Several commenters (54) Comment: One commenter
a problem with a feral cat colony on stated that the Service has already made expressed concern that the estimated
Perdido Key, which is outside the range exclusions based on economics prior to costs for Beach Club West and Gulf
of the ABM and involves the the availability of a DEA (and in Highlands were overstated and that this
endangered Perdido Key beach mouse violation of the Administrative may result in the two developments
(Peromyscus polionotus trissyllepsis). Procedure Act). incorrectly being excluded from critical
The comment was addressed in the Our Response: The exclusions habitat for economic reasons.
recent final rule designating critical proposed under section 4(b)(2) of the Our Response: Section 3 of the final
habitat for three Gulf Coast beach mice, Act in the proposed rule were based on economic analysis (EA) estimates
which included the Perdido Key beach secure HCPs, not on economic data. We impacts to the Beach Club West and
mouse (October 12, 2006; 71 FR 60237). did not have a DEA ready for public Gulf Highlands development projects.
We concur that feral cats are a major review until August 8, 2006, and the The developments were analyzed in the
threat to beach mice. Cat colonies may comment period on the DEA did not context of potential costs which they
have led to the extirpation of Alabama end until September 7, 2006. may incur as a result of ABM
and Perdido Key beach mice (Linzey (50) Comment: One commenter states conservation efforts, but they were not
1978, p. 20; Holliman 1983, p. 128). For it is puzzling that the Service is excluded for economic reasons.
this reason, incidental take permits imposing economic hardship in light of (55) Comment: Multiple commenters
issued for ABM contain conditions other Federal government tax incentives assert that the DEA underestimates the
specifically addressing control of cats. (Gulf Opportunity Zone Act of 2005). economic impact of critical habitat on
Our Response: This designation is specific projects and the local economy,
Specific Comments Related to the Draft as described in a study by Klages (2006).
Economic Analysis (DEA) non-discretionary and was in motion
well before the Gulf Zone Act of 2005. The Klages study is a report
(47) Comment: Several commenters commissioned by private and public
We have considered the economic
believe that the Service should not take entities with an interest in development
impacts of the designation.
economic impacts into consideration activities on the Fort Morgan Peninsula.
(51) Comment: One commenter
when designating critical habitat. The study estimates the impacts on the
Our Response: Section 4(b)(2) of the requests the areas covered by the
local economies of Baldwin County and
Act states that critical habitat shall be proposed rangewide HCP be excluded
Gulf Shores, Alabama, that could be
designated and revised on the basis of from critical habitat due to economic
generated by proposed development of
the best available scientific data after reasons.
properties on the Fort Morgan Peninsula
taking into consideration the economic Our Response: Please refer to potentially affected by the proposed
impact, national security impact, and Comment 26. Because enrollment in the critical habitat designation for the ABM.
any other relevant impact, of specifying proposed rangewide HCP would be Our Response: Section 3 of the EA
any particular area as critical habitat. voluntary, we do not know which areas provides a discussion of the Klages
The Secretary may exclude an area from would actually be covered by it. study. As stated in Section 3 of the EA,
critical habitat if he determines that the (52) Comment: One commenter the Klages study provides useful context
benefits of such exclusion outweigh the asserts the DEA does not support for understanding development activity
benefits of specifying such area as part certification under the Regulatory along the peninsula. Both the Klages
of the critical habitat, unless he Flexibility Act, and an Initial Regulatory study and the EA rely upon the same
determines, based on the best scientific Flexibility Analysis should be prepared information concerning the extent of
data available, that the failure to and reviewed by the public. developable properties and the type of
designate such area as critical habitat Our Response: We have considered development that may occur. The
will result in the extinction of the whether this designation would result Klages study and the EA differ,
species. In making that determination, in a significant economic effect on a however, in certain base assumptions
the Secretary is afforded broad substantial number of small entities. We and methods for quantifying impacts.
discretion and the Congressional record have determined that it is not likely to Most significantly, the EA assumes that
is clear that in making a determination affect a substantial number of small development will proceed, but that
under the section the Secretary has entities. Federal involvement, and thus ABM conservation efforts will cause
discretion as to which factors to section 7 consultations, would be incremental delays in development
consider and how much weight will be limited to a subset of the area activities and land set-asides, or lower
given to any factor. designated. The most likely Federal the number of residential units, as well
(48) Comment: One commenter stated involvement could include: Corps as produce other direct costs. The
that the Service’s failure to release the permits, permits we may issue under Klages study posits that no development
economic analysis simultaneously with section 10(a)(1)(B) of the Act (ITPs), will occur on vacant parcels within
the proposed rule frustrates the public’s FHA funding for road improvements, critical habitat designation, and then
attempt to meaningfully comment on and activities funded by FEMA. A employs a form of input-output
the critical habitat being proposed. regulatory flexibility analysis is not modeling to measure revenue and other
Our Response: We acknowledge this required. Please refer to the Required effects of foregone development. In the
concern; however, the Service strives to Determinations section for further Klages study, it is unclear what specific
keep the comment period on a draft information. properties are determined to be
economic analysis open as long as (53) Comment: One commenter states precluded from development. Therefore,
possible to allow the public time to the mission of the Service is to protect the specific study area may be different
review and comment on the draft wildlife, not give considerations to than the critical habitat designation.
economic analysis. The public was economic impact. These differences affect the impact
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given a chance to comment on the DEA Our Response: Although economics estimates as follows: First, the impacts
concerning our proposed revised critical may not be considered when listing a identified in the Klages study are higher
habitat designation for ABM during our species, Congress has expressly required than those presented in the EA. The
second public comment period from this consideration when designating Service agrees that, while potential
August 8, 2006, to September 7, 2006. critical habitat. impacts on development are significant,

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

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capitalized into the price of land and Family Development Locations, Fort wetlands) incapable of development.
will be borne by the existing landowner, Morgan Peninsula, Gulf Shores, The 2003 data were used to estimate the
regardless of whether that landowner Alabama. The Volkert & Associates potential for redevelopment as multi-
actually undertakes the development study identified lands that can family within critical habitat. An
project themselves. Using the number of physically and legally support multi- updated (2005) version of this data layer
privately owned developable parcels (or family development, irrespective of is not available.
lots) that intersect the revised critical current zoning. No additional properties
habitat, approximately 137 landowners are expected to be capable of supporting Comments From States
could be impacted by ABM multi-family development. Section 4(i) of the Act states that the
conservation efforts. Many of these (63) Comment: Several commenters Secretary shall submit to the State
landowners may be individuals or state the DEA does not consider all of agency a written justification for his
families that are not registered the alternatives for Beach Club West and failure to adopt a regulation consistent
businesses (for example, they may be Gulf Highlands outlined in the Draft with the agency’s comments or petition.
holding the land as an investment). No Environmental Impact Statement (DEIS) Comments were received from the State
North American Industry Classification for these projects. of Alabama’s Department of
System (NAICS) code exists for Our Response: The DEA estimates Transportation (ALDOT) and
landowners, and the Small Business impacts based on activities that are Department of Conservation and Natural
Administration does not provide a reasonably foreseeable, which include, Resources (ADCNR).
definition of small landowner. A lower but are not limited to, activities that are (66) Comment: ALDOT requests the
bound estimate of the potential impact currently authorized, permitted, or exclusion of the S.R. 180 (Fort Morgan
to small entities would be to assume funded, or for which proposed plans are Road) right-of-way from the critical
that all existing landowners are not currently available to the public. habitat because of future plans to widen
registered businesses, and, therefore, no Section 3 of the DEA estimates costs of the corridor to address increasing traffic
impact on small entities is expected. To ABM conservation efforts for the Beach volumes and safety concerns.
develop an upper bound estimate of the Club West and Gulf Highlands projects
Our Response: The S.R. 180 right-of-
potential impacts on small entities, the associated with the most reasonably
way is owned by the State of Alabama
FEA makes the conservative assumption foreseeable project, the Preferred
and extends 160 ft (49 m) south of the
that all of the private owners of Alternative provided in the DEIS.
(64) Comment: Several commenters roadway centerline. Trapping data
developable lands in critical habitat (Farris 2003) demonstrated mice
impacted by future ABM conservation assert the DEA only focuses on two
developments, Beach Club West and occupancy along most of the right-of-
efforts will be developers. This way from the Fort Morgan Historic Site
assumption is likely to overstate the Gulf Highlands.
Our Response: The DEA estimates to just west of The Beach Club. These
actual impacts to small development areas, which consist of high elevation
firms. The FEA estimates that less than potential impacts on many activities,
including a wide range of development scrub habitat, low elevation scrub
two small developers may experience a habitat, and open sandy habitat serving
reduction in revenues of 2.8 percent activities, road construction and
maintenance activities, tropical storms to connect larger, more contiguous areas
each year as a result of ABM designated as critical habitat, are
conservation efforts in critical habitat. and hurricanes, species management
activities, and recreation activities. Most important for east-west movement of
In addition, we acknowledge that some
anticipated costs are associated with mice along the peninsula. This area is
subcontractors to developers may meet
residential and commercial not covered under a ABM-specific
the definition of a small business
development (approximately 99 management plan and, as such, does not
definition under the Regulatory
percent). Of these, 70 to 93 percent are meet our criteria for exclusion under
Flexibility Act (5 U.S.C. 601–612) and
associated with the Beach Club West section 4(b)(2) of the Act due to
may be affected by the impacts to
and Gulf Highlands projects. conservation plans. We have had
development activities from critical
(65) Comment: One commenter stated discussions with ALDOT regarding
habitat designation. These
the DEA appears to be based on the revised critical habitat and the widening
subcontractors are indirectly affected by
2003 Volkert & Associates analysis. project and will continue to work with
ABM conservation efforts that directly
affect the project proponent (the However, a 2005 study is available and ALDOT to ensure that projects proceed
developer). should be used. with minimal impact to designated
(62) Comment: One commenter wrote Our Response: As discussed in critical habitat.
the DEA underestimates the amount of Appendix C of the DEA, Volkert & (67) Comment: ADCNR asked how the
property that could potentially be Associates developed a GIS layer designation of critical habitat would
developed as multi-family units. identifying vacant single-family lots affect the sale and permitting of
Our Response: Appendix C of the within ABM habitat for the City of Gulf driveway easements on State-owned
DEA provides the methodology used to Shores Range-Wide HCP in 2005. This land along S.R. 180.
determine the type of development information was used in the DEA to Our Response: We recommend that
likely to occur within critical habitat. estimate the number of single family landowners planning to construct
The DEA uses geographic information homes likely to be developed under the driveways through ABM habitat apply
systems (GIS) software to estimate the City of Gulf Shores Range-Wide HCP for an ITP from the Service regardless of
maximum number of potential within critical habitat. In 2003, Volkert whether or not there is critical habitat
residential units that could be built in & Associates developed a separate GIS (please see Comment 13 for a discussion
critical habitat under current Baldwin layer to identify areas on the Fort of the difference between ABM habitat
County, Alabama, zoning regulations, Morgan Peninsula that may legally and and critical habitat). Critical habitat
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and future City of Gulf Shores, Alabama, physically support multi-family only applies to Federal actions;
zoning. Potential redevelopment areas development (irrespective of current therefore, driveway construction would
are estimated using the 2003 study by zoning). This layer identifies parcels not trigger consultation with the
Volkert & Associates, Permitted or that are legally (for example, covenants, Service; however, since take of mice
Potential Future Gulf-Front Multi- easements) or physically (for example, may occur, we recommend an ITP.

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(68) Comment: ADCNR expressed conservation of species on the Perdue Critical habitat receives protection
concern that the areas proposed for Unit of the Bon Secour National under section 7 of the Act through the
exclusion from critical habitat do not Wildlife Refuge from 1,063 ac (430 ha) prohibition against destruction or
match up with its proposed plans for to 807 ac (327 ha), based on site visits, adverse modification of critical habitat
the proposed Gulf State Park hotel and a detailed review of 2005 aerial with regard to actions carried out,
convention center. photography, and recent tracking and funded, or authorized by a Federal
Our Response: In 2004, we approved trapping data (see Comment 31). agency. Section 7 requires consultation
an HCP and issued an ITP for the However, these areas within the Perdue on Federal actions that are likely to
upcoming demolition and Unit still do not meet the definition of result in the destruction or adverse
reconstruction of a new hotel and critical habitat under section 3(5)(A) of modification of critical habitat. The
convention center complex south of S.R. the Act because they are protected designation of critical habitat does not
182 on Gulf State Park. ADCNR applied under the Refuge’s CCP (they do not affect land ownership or establish a
for and received a modification to this require special management refuge, wilderness, reserve, preserve, or
permit in 2005 to allow for adjustments considerations or protection ) (see other conservation area. Such
to proposed parking lots and building ‘‘Application of Section 3(5)(A) of the designation does not allow government
footprints. ADCNR has now applied for Act’’ for more information). or public access to private lands.
an additional permit modification to (3) Under section 4(b)(2) of the Act, Section 7 is a purely protective measure
include moving and rebuilding the pier we did not designate the areas totaling and does not require implementation of
that was destroyed by Hurricane Ivan, 108 ac (44 ha) covered by the HCP for restoration, recovery, or enhancement
and slight changes to its proposed the Beach Club West and Gulf measures.
design for the parking and hotel and Highlands because the HCP provides for To be included in a critical habitat
convention center facilities. The Service ABM conservation (see ‘‘Application of designation, the habitat within the area
has attended several meetings with Exclusions Under Section 4(b)(2) of the occupied by the species must first have
ADCNR staff regarding project Act’’ section for more detail). features that are essential to the
construction and the minimization of conservation of the species. Critical
(4) We have modified the boundaries
impact to both existing and revised habitat designations identify, to the
of the designation for Unit 5: Gulf State
critical habitat. In its current proposal, extent known using the best scientific
Park to reflect its recent ITP
ADCNR has outlined plans for a data available, habitat areas that provide
modification. This modification resulted
combined facility that features state-of- essential life cycle needs of the species
the-art, wildlife-friendly lighting and in the addition of 2 ac (0.8 ha) to Unit (areas on which are found the primary
reduces overall ABM habitat impacts by 5 (see Comment 68 and the constituent elements, as defined at 50
2 ac (0.8 ha). We have modified this ‘‘Application of Exclusions Under CFR 424.12(b)).
final rule to reflect this second permit Section 4(b)(2) of the Act ‘‘ section for Habitat occupied at the time of listing
modification. Please refer to the more information). may be included in critical habitat only
‘‘Application of Exclusions Under Critical Habitat if the essential features thereon may
Section 4(b)(2) of the Act’’ section and require special management or
Map 6 for more information. Critical habitat is defined in section 3 protection. Thus, we do not include
of the Act as—(i) The specific areas areas where existing management is
Summary of Changes From Proposed within the geographical area occupied sufficient to conserve the species. (As
Rule by a species, at the time it is listed in discussed below, such areas may also be
In preparing this final critical habitat accordance with the Act, on which are excluded from critical habitat pursuant
designation for the ABM, we reviewed found those physical or biological to section 4(b)(2) of the Act.)
and considered comments from the features (I) essential to the conservation Furthermore, when the best available
public on the proposed designation of of the species and (II) that may require scientific data do not demonstrate that
critical habitat published on February 1, special management considerations or the conservation needs of the species
2006 (71 FR 5516). We likewise protection; and (ii) specific areas require additional areas, we will not
reviewed and considered comments outside the geographical area occupied designate critical habitat in areas
from our announcement of revisions to by a species at the time it is listed, upon outside the geographical area occupied
the proposal, the availability of the a determination that such areas are by the species at the time of listing.
DEA, and public hearing published on essential for the conservation of the However, an area currently occupied by
August 8, 2006 (71 FR 44976). As a species. Conservation, as defined under the species but was not known to be
result of the comments and a section 3 of the Act, means to use and occupied at the time of listing will
reevaluation of the revised proposed the use of all methods and procedures likely be essential to the conservation of
critical habitat boundaries, we made that are necessary to bring any the species and, therefore, typically be
changes to our proposed designation, as endangered species or threatened included in the critical habitat
follows: species to the point at which the designation.
(1) We revised the critical habitat measures provided pursuant to the Act The Service’s Policy on Information
units based on peer review, public are no longer necessary. Such methods Standards Under the Act, published in
comments, and biological information and procedures include, but are not the Federal Register on July 1, 1994 (59
received during the public comment limited to, all activities associated with FR 34271), and Section 515 of the
periods. We adjusted the boundaries of scientific resources management such as Treasury and General Government
Unit 3 to remove 10 acres along the S.R. research, census, law enforcement, Appropriations Act for Fiscal Year 2001
180 right-of-way immediately west of habitat acquisition and maintenance, (Pub. L. 106–554; H.R. 5658) and the
Martinique, and in the Cabana Beach propagation, live trapping, and associated Information Quality
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subdivision north of Adair Lane because transplantation, and, in the Guidelines issued by the Service,
these areas do not meet our criteria for extraordinary case where population provide criteria, establish procedures,
inclusion. pressures within a given ecosystem and provide guidance to ensure that
(2) We realigned or reduced the area cannot be otherwise relieved, may decisions made by the Service represent
considered to be essential to the include regulated taking. the best scientific data available. They

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require Service biologists, to the extent those physical and biological features species present, that collectively
consistent with the Act and with the use (PCEs) that are essential to the provide foraging opportunities, cover,
of the best scientific data available, to conservation of the species, and within and burrow sites.
use primary and original sources of areas occupied by the species at the (2) Primary and secondary dunes,
information as the basis for time of listing, that may require special generally dominated by sea oats (Uniola
recommendations to designate critical management considerations and paniculata), that, despite occasional
habitat. When determining which areas protection. These include, but are not temporary impacts and reconfiguration
are critical habitat, a primary source of limited to, space for individual and from tropical storms and hurricanes,
information is generally the listing population growth and for normal provide abundant food resources,
package for the species. Additional behavior; food, water, air, light, burrow sites, and protection from
information sources include the minerals, or other nutritional or predators.
recovery plan for the species, articles in physiological requirements; cover or (3) Scrub dunes, generally dominated
peer-reviewed journals, conservation shelter; sites for breeding, reproduction, by scrub oaks (Quercus spp.), that
plans developed by States and counties, and rearing (or development) of provide food resources and burrow
scientific status surveys and studies, offspring; and habitats that are protected sites, and provide elevated refugia
biological assessments, or other from disturbance or are representative of during and after intense flooding due to
unpublished materials and expert the historic geographical and ecological rainfall and/or hurricane-induced storm
opinion or personal knowledge. All distributions of a species. surge.
information is used in accordance with The specific PCEs required for the (4) Unobstructed habitat connections
the provisions of Section 515 of the ABM are derived from the biological that facilitate genetic exchange,
Treasury and General Government needs of this beach mouse as described dispersal, natural exploratory
Appropriations Act for Fiscal Year 2001 in the proposed critical habitat movements, and recolonization of
(Pub. L. 106–554; H.R. 5658) and the designation published in the Federal locally extirpated areas.
associated Information Quality Register on February 1, 2006 (71 FR (5) A natural light regime within the
Guidelines issued by the Service. 5516). coastal dune ecosystem, compatible
Section 4 of the Act requires that we with the nocturnal activity of beach
Primary Constituent Elements for the mice, necessary for normal behavior,
designate critical habitat on the basis of
Alabama Beach Mouse growth, and viability of all life stages.
the best scientific data available. Habitat
is often dynamic, and species may move Pursuant to our regulations, we are Each of the areas designated in this
from one area to another over time. required to identify the known physical rule known to be occupied at the time
Furthermore, we recognize that and biological features (PCEs) essential of listing has been determined to
designation of critical habitat may not to ABM conservation. All areas contain sufficient PCEs to provide for
include all of the habitat areas that may designated as ABM critical habitat are one or more of the life history functions
eventually be determined to be occupied or essential to the of the ABM. In some cases, the PCEs
necessary for the recovery of the conservation of the species, within the exist as a result of ongoing Federal
species. For these reasons, critical species’ historic geographic range, and actions. As a result, ongoing Federal
habitat designations do not signal that contain sufficient PCEs to support at actions at the time of designation will be
habitat outside the designation are least one life history function. included in the baseline in any
unimportant or may not be required for This designation is designed for the consultation conducted subsequent to
recovery. conservation of PCEs necessary to this designation.
Areas that support populations, but support the life history functions that
Criteria Used To Identify Critical
are outside the critical habitat were the basis for the proposal. Because
Habitat
designation, will continue to be subject not all life history functions require all
to conservation actions implemented the PCEs, not all critical habitat will We are designating critical habitat on
under section 7(a)(1) of the Act and to contain all the PCEs. lands that were occupied at the time of
the regulatory protections afforded by Units known to be occupied at the listing and contain sufficient PCEs to
the section 7(a)(2) jeopardy standard, as time of listing are designated based on support life history functions essential
determined on the basis of the best sufficient PCEs being present to support to the conservation of the ABM. In a few
available information at the time of the one or more of the species’ life history instances, we are also proposing to
action. Federally funded or permitted functions. Some units contain all PCEs designate areas that were identified as
projects affecting listed species outside and support multiple life processes, occupied after listing, but that we have
their designated critical habitat areas while some units contain only a portion determined to be essential to the
may still result in jeopardy findings in of the PCEs necessary to support the conservation of the ABM.
some cases. Similarly, critical habitat species’ particular use of that habitat. Units known to be occupied at the
designations made on the basis of the Where a subset of the PCEs is present at time of listing were designated based on
best available information at the time of the time of designation, this rule sufficient PCEs being present to support
designation will not control the protects those PCEs and thus the Alabama beach mouse life processes
direction and substance of future conservation function of the habitat. and at least one of the following
recovery plans, habitat conservation Based on our current knowledge of characteristics: (1) Supports a core
plans, or other species conservation the life history, biology, and ecology of population of ABM; (2) was occupied by
planning efforts if new information the species and the requirements of the ABM at the time of listing; (3) is
available to these planning efforts call habitat to sustain the essential life currently occupied by ABM according
for a different outcome. history functions of the species, we have to Service ABM live-trapping protocol
determined that PCEs for the ABM are: (Service 2005, p. 2) and has been
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Primary Constituent Elements (1) A contiguous mosaic of primary, determined to be essential to the
In accordance with section 3(5)(A)(i) secondary, and scrub vegetation and conservation of the species. Some units
of the Act and regulations at 50 CFR dune structure, with a balanced level of contain all PCEs and support multiple
424.12, in determining which areas to competition and predation and few or life processes. Some units contain only
designate as critical habitat, we consider no competitive or predaceous nonnative a portion of the PCEs necessary to

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support the ABM’s particular use of that done in a few areas for verification. We best remaining coastal dune habitat, and
habitat. Where only a subset of the PCEs eliminated highly degraded tracts, and reflect the wide variety of habitat types
are present, it has been noted that only small, isolated, or highly fragmented utilized by the ABM. The areas include
PCEs present at designation will be tracts that provide no long-term all of the contiguous high elevation
protected. Areas that are degraded, conservation value. The remaining habitats (as determined by review of
highly fragmented, isolated, or areas, totaling 2,281 ac (923 ha), were LIDAR data, storm surge model
otherwise considered of questionable identified as containing the PCEs and estimates, and post-Hurricane Ivan
value to ABM conservation are not essential to the conservation of the measurements) crucial to the
included. The Service has developed a subspecies. subspecies’ survival during and after
trapping protocol for establishing We reviewed existing ABM major hurricane events. Because short-
absence of beach mice (see ADDRESSES management and conservation plans to term occupation of habitat varies in
to request a copy). In summary to determine if any areas identified above response to tropical storm activity, ABM
document absence, this protocol did not meet the definition of critical presence will vary spatially and
requires 2 years of quarterly live- habitat according to section 3(5)(A) of temporally throughout the designated
trapping with no beach mice captured. the Act, or could be excluded from the areas, and may be unevenly distributed
Presence of ABM, however, can be revised designation in accordance with at any given time.
documented by the capture of one beach section 4(b)(2) of the Act. Portions of the When determining critical habitat
mouse, or the observation of beach Perdue Unit of the Refuge are boundaries, we made every effort to
mouse tracks or beach mouse burrows adequately protected under the Refuge’s avoid the designation of developed
by a beach mouse expert or similarly Comprehensive Conservation Plan and areas such as buildings or houses, paved
qualified biologist. do not require special management or areas, gravel driveways, ponds,
Following the strategy outlined above, protection. While these areas, which swimming pools, lawns, and other
we began by mapping coastal dune total 808 ac (327 ha), contain the habitat structures that lack PCEs for the ABM.
communities within the historic range features that are essential to the When it has not been possible to map
of the species. These areas were refined conservation of the subspecies, they do out all of these structures and the land
by using aerial map coverages, chiefly not meet the definition of critical upon which they are sited because of
Baldwin County aerial photography habitat. scale issues, they have been excluded by
from 2001 and 2005, and LIDAR Section 10(a)(1)(B) of the Act rule text. Therefore, Federal actions
imagery (Baldwin County 2004), to authorizes us to issue permits for the limited to these areas would not trigger
eliminate features such as housing take of listed species incidental to section 7 consultations, unless they
developments and other areas that are otherwise lawful activities. An affect the subspecies or PCEs in adjacent
unlikely to contribute to the incidental take permit application must critical habitat. It is important to note
conservation of ABM. We then focused be supported by a habitat conservation that the maps provided in this rule (see
on areas supporting ABM, as well as plan (HCP) that identifies conservation ‘‘Regulation Promulgation’’ section) are
areas that contain the PCEs for the measures that the permittee agrees to for illustrative purposes. For the precise
subspecies. implement for the species to minimize legal definition of critical habitat, please
Because ABM habitat is dynamic and and mitigate the impacts on the species refer to the narrative unit descriptions
changes in response to coastal erosion, of the requested incidental take. We in the ‘‘Regulation Promulgation’’
we believe that limiting the designation often exclude non-Federal public lands section of this rule.
to areas occupied at the time of listing and private lands that are covered by an
would not yield sufficient habitat for the existing operative HCP under section Special Management Considerations or
persistence of ABM. The fragmentation 10(a)(1)(B) of the Act from designated Protections
of the species’ historic habitat, coupled critical habitat because the benefits of When designating critical habitat, we
with the dynamic nature of coastal dune exclusion outweigh the benefits of assess whether the areas determined to
habitat due to tropical storms, makes inclusion as discussed in section 4(b)(2) be occupied at the time of listing
multiple populations essential for of the Act. As discussed in further detail contain the features essential to the
species conservation. Consequently, we below (see ‘‘Application of Sections conservation that may require special
are designating units that were not 3(5)(A) and 4(a)(3) and Exclusions management considerations or
occupied at the time of listing. These Under Section 4(b)(2) of the Act’’), we protections. As discussed in more detail
areas are essential for the conservation are excluding 51 properties that are in the proposed critical habitat
of the ABM. In addition, however, they currently protected through Habitat designation (February 1, 2006; 71 FR
are also currently occupied by the Conservation Plans providing ABM 5516) and in the unit descriptions
species, have one or more of the PCEs, protection and habitat management. below, we find that the features we are
and are within the historic range of the These excluded properties total 263 ac designating may require special
species. (106 ha). One of these areas, the management considerations or
The combined extent of these mapped development site for Beach Club West protections due to threats to the
areas defines the habitat that contains and Gulf Highlands, was also excluded subspecies or its habitat. Such
features that are essential to the based on an HCP. management considerations and
conservation of the subspecies. The remaining 1,211 ac (490 ha) of protections include: management of
Although these designated areas ABM habitat being designated as critical nonnative predators and competitors,
represent only a small proportion of the habitat is divided into the five units management of nonnative plants, and
subspecies’ historic range, they include described below. These five critical protection of ABM and their habitat
a significant proportion of the remaining habitat units, all located within the from threats by road construction, urban
intact coastal communities and reflect coastal dune environment of Baldwin and commercial development, heavy
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the habitat types historically occupied County, Alabama, are currently machinery, and recreational activities.
by ABM. Areas not containing the PCEs, occupied by ABM. Although these units
such as permanent wetlands and represent only a small proportion of the Critical Habitat Designation
maritime forests, are not included in the subspecies’ historic range, they include We are designating five units as
designation. Field reconnaissance was a significant proportion of Alabama’s critical habitat for the ABM (from west

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to east): (1) Fort Morgan, (2) Little Point management, and those additional areas were occupied at the time of listing and
Clear, (3) Gulf Highlands, (4) Pine that were not occupied at the time of those that are currently occupied but
Beach, and (5) Gulf State Park. They are listing, but are essential for the were not so at the time of listing. Table
described below as our best assessment, conservation of the ABM because they 2 identifies the areas that meet the
at this time, of the areas determined to contain one or more of the PCEs, definition of critical habitat but were
be occupied by the ABM at the time of support core ABM populations and excluded from final critical habitat
listing that contain one or more of the habitat continuity, and are currently based on their ABM-specific
PCEs that may require special occupied. Table 1 shows the units that 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 des-
Geographic area areas (acres/ ignation Reason
hectares) (acres/hec-
tares)

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 definition of critical habitat for the
encompassed within each critical Alabama beach mouse.
habitat unit determined to meet the

TABLE 3.—CRITICAL HABITAT UNITS DESIGNATED FOR THE ALABAMA BEACH MOUSE
[Totals may not sum due to rounding]

Local and pri-


Federal acres/ State acres/ Total acres/
Critical Habitat Units vate 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 the Fort Morgan State Historic Site and a single line of high scrub dunes
units, and reasons why they meet the private lands to the east. It is located at directly north of the roadway and
definition of critical habitat for the the extreme western edge of the ABM within the historic site boundaries.
ABM, below. range and consists principally of habitat Much of Unit 1 is existing critical
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that was known to be occupied at the habitat that was designated at the time
Unit 1: Fort Morgan
time of listing (50 FR 23990; Holliman of listing (June 6, 1985; 50 FR 23885).
Unit 1 (Map 2) consists of 446 ac (180 1983, p. 126) south of S.R. 180 (Fort However, the actual Fort and associated
ha) and encompasses ABM habitat in Morgan Parkway), with the exception of structures and developed areas that

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were included in the original ft (91 m) landward of MHWL. The Fort Cabana Beach subdivisions, as well as
designation are not included in this Morgan Parkway right-of-way, which is portions of the Beach Club West-Gulf
critical habitat unit. The unit extends managed by the State of Alabama Highlands development, BLM
from mean high water line (MHWL) (ADCNR) extends 160 ft (49 m) both properties, and some properties along
northward to the break between scrub south and north of the roadway the Fort Morgan Parkway right-of-way.
dune habitat and either the maritime centerline. The designation includes the It is bounded to the west by Unit 2. The
forest or human developed landscape southern sections of right-of-way and main portion of the unit generally
(for example, grassy areas associated small portions of the northern right-of- stretches from MHWL landward to a
with Fort Morgan State Historic Site). way. In several places along the east natural border of wetlands to the north.
The unit is bounded to the west by west extent of this unit, additional This portion is bisected by ABM habitat
Mobile Bay, and to the east by Unit 2 parcels, either to the south of the Fort associated with the Kiva Dunes,
(western property line of the ‘‘Bay to Morgan Parkway, or to the north of the Plantation Palms, Beach Club, and
Breakers’’ residential development; see CCCL, that contain the PCEs (see Martinique developments and is
below). The Dunes development and Primary Constituent Elements section) excluded because of its HCPs (see
several single family homes covered by are included in the revised designation ‘‘Application of Exclusions Under
Service-approved HCPs are excluded (see Map 3). Several areas covered by Section 4(b)(2) of the Act’’ section). The
from this unit (see ‘‘Application of HCPs for single family and duplex
unit also contains an eastward
Exclusions Under Section 4(b)(2) of the development have been excluded. This
continuation of ABM habitat adjacent to
Act’’ section). unit was not part of the original (1985)
ABM occurrence in the unit over time the Fort Morgan Parkway. This northern
critical habitat designation. This unit is
is well documented (Holliman 1983, p. a mix of Federal, State, local, and portion of Unit 3 is bounded to the west
126; 50 FR 23990; Rave and Holler 1992, private ownership. by Unit 2 and to the east by wetlands
pp. 349–350; Sneckenberger 2001, pp. This unit, while often being and maritime forest along the S.R. 180
12–13 and 32–36), and mice have been inundated during storm surge events and points east. Like the right-of-way
captured here following Hurricanes Ivan (Service 2004a; pp. 12–13; ENSR 2004, corridor in Unit 2, it generally extends
and Katrina (Endangered Species pp. 3–5 through 4–1; ACOE 2001, from the centerline of Fort Morgan
Consulting Services 2004a, p. 2; Service Service 2005a, pp. 14–15), represents Parkway 160 ft (49 m) south though a
2005, p. 15). This unit contains the the last remaining natural habitat few areas of habitat north of the road are
features essential to the conservation of connections between ABM populations also captured. Unit 3 serves as an
the subspecies. Some areas of the unit in and around Unit 1 and Unit 3, and expansion, to encompass scrub habitat,
contain a contiguous mix of primary provides an essential link between those of critical habitat Zone 2 that was
and secondary dunes, interdunal populations (PCE 4). Portions of this designated at the time of listing (50 FR
swales, wetlands, and scrub dunes (PCE unit south of the CCCL contain PCE 2 23872; June 6, 1985). This unit contains
1), whereas other areas contain high and some sections of the right-of-way the features essential to the conservation
quality primary and secondary dune contain PCE 3. While this area was of the subspecies; all five PCEs are
habitat (PCE 2). While no one portion of identified as being within the range of present in varying amounts throughout
the designated unit contains all PCEs, the ABM (50 FR 23872, Holliman 1983, this unit.
all five PCEs are present within the unit. pp. 125–126; Dawson 1983, pp. 8–11), This unit, combined with the
Natural areas of the Fort Morgan we have no records that ABM were neighboring Perdue Unit of the Refuge
Historic Site are owned by the State of present at the time of listing. However, and several properties with
Alabama (Alabama State Historical pre-hurricane Ivan trapping has verified conservation plans that are being
Commission), but are currently managed the presence of mice south of the CCCL excluded (see ‘‘Application of
by the Refuge according to a cooperative (Meyers 1983, pp. 5, 12–21; 50 FR Exclusions Under Section 4(b)(2) of the
agreement (Service 2005) (see 23872; Endangered Species Consulting
Act’’ section), contains the largest
‘‘Application of Section 3(5)(A) and Services 2004b, p. 2) and along the
Exclusions Under Section 4(b)(2) of the assemblage of high elevation habitat
right-of-way (Sneckenberger 2001, p. 13;
Act’’ section for further detail on within the range of the ABM (ACOE
Farris 2003). Because the unit is
management). Threats in this unit that 2001, Plate 2–11; ENSR 2004, pp. 3–5
presently occupied and contains two of
may require special management through 4–1; Service 2004a, pp. 9–12;
the PCEs, and because long-term beach
considerations include human- mouse viability depends on the Service 2004b, p. 6; Service 2005a, pp.
generated refuse, and degraded habitat existence of more populations than were 2–4). The largest tracts of contiguous
(from activities associated with documented at the time of listing, it is habitat possessing a full gradient of
recreational use). essential to the conservation of the ABM habitat (primary dunes landward
subspecies. Habitat south of the CCCL to scrub dunes) are also found here.
Unit 2: Little Point Clear ABM occupancy is well documented
consists of primary and secondary
Unit 2 consists of 268 ac (108 ha) and dunes, while habitat along the right-of- both at the time of listing (Meyers 1983,
includes east-to-west bands of ABM way consists primarily of scrub that is pp. 5, 12–21; Holliman 1983, pp. 125–
habitat and connections between habitat often temporarily disturbed by utility 126) and recently (Endangered Species
south of the Alabama Department of line maintenance. Utility line work Consulting Services, LLC and ENSR
Environmental Management’s Coastal results in a sparsely vegetated, open Corporation 2001, p. 22; Farris 2003).
Construction Control Line (CCCL) scrub habitat that still provides forage ABM were found here following
(ADEM 1995, pp. 2–8 through 2–10) and and cover opportunities for mice in the Hurricane Ivan (Endangered Species
along the roadway right-of-way for Fort area. Consulting Services 2004, p. 2; 2004d,
Morgan Parkway. This Unit is bounded p. 2). Threats that may require special
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to the west by Unit 1 and extends Unit 3: Gulf Highlands management include habitat
eastward to the western edge of the Unit 3 consists of 275 ac (111 ha) in degradation and fragmentation,
Surfside Shores subdivision (western the central portion of the Fort Morgan extensive recreational pressure, post-
boundary of Unit 3). The CCCL varies in Peninsula. It includes portions of the storm cleanups, artificial lighting,
width but generally extends about 300 Morgantown, Surfside Shores, and predation, and human-generated refuse.

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Unit 4: Pine Beach portion of the historic range of the the Act, destruction or adverse
subspecies. modification is determined on the basis
This unit consists of 30 ac (12 ha) ABM were documented from the Park of whether, with implementation of the
including a BLM property and 27 in the late 1960s (Linzey 1970, p. 81), proposed Federal action, the affected
private inholdings within the Perdue but were presumed extirpated by the critical habitat would remain functional
Unit of the Refuge that are not managed early 1980s (Holliman 1983, pp. 123– (or retain the current ability for the
under the Refuge’s Comprehensive 126; Holler and Rave 1991, p. 22–25), primary constituent elements to be
Conservation Plan. The primary and because of habitat isolation combined functionally established) to serve the
secondary dunes within this unit were with the effects of tropical storms, intended conservation role for the
part of ‘‘Zone 2’’ of the original critical predation (primarily from feral cats), species.
habitat designation, which extended and competition with house mice. This Section 7(a) of the Act requires
from the mean high tide line of the Gulf area was referred to as occupied in our Federal agencies, including the Service,
of Mexico landward 500 ft (152 m). final listing rule (June 6, 1985; 50 FR to evaluate their actions with respect to
ABM are well documented from the area 23872). ABM were reintroduced to the any species that is proposed or listed as
both recently (Rave and Holler 1992, pp. park in 1998, and subsequent trapping endangered or threatened and with
349–350; Swilling et al. 1998, pp. 289– confirmed their presence there respect to its critical habitat, if any is
294; Sneckenberger 2001, pp. 66–69; (Sneckenberger S., Service, personal proposed or designated. Regulations
Service 2003, p. 1) and from the time of communication, 2005; Service 2003, p. implementing this interagency
listing (Holliman 1983, p. 126; Meyers 2). This unit was heavily impacted by cooperation provision of the Act are
1983, pp. 5, 12–21). This unit, along Hurricane Ivan in 2004 (Service 2004a, codified at 50 CFR part 402.
with adjacent Refuge lands and pp. 5–6) and Hurricane Katrina in 2005 Section 7(a)(4) of the Act requires
exclusions for single family homes (Service 2005a, pp. 6–9), and recent Federal agencies to confer with us on
covered by Service-approved HCPs (see trapping has not located mice (Volkert any action that is likely to jeopardize
‘‘Application of Exclusions Under 2005, pp. 2–5). This unit contains PCEs the continued existence of a proposed
Section 4(b)(2) of the Act’’ section), 2 and 3 and, therefore, possesses the species or result in destruction or
contains the features essential to the habitat features essential to the adverse modification of designated
conservation of the ABM because of its conservation of the subspecies. Because critical habitat. This is a procedural
high elevation habitat and continuity this unit contains several PCEs, because requirement only. However, once a
between habitat types. It contains PCEs it is presently occupied, and because proposed species becomes listed, or
2, 3, and 5, and when combined with ABM recovery depends on more proposed critical habitat is designated
the surrounding Refuge lands, it also populations than were documented at as final, the full prohibitions of section
includes PCEs 1 and 4. Threats that may the time of listing, it is essential to the 7(a)(2) apply to any Federal action. The
require special management conservation of the subspecies. primary utility of the conference
considerations on this unit may include This unit is State-owned and managed procedures is to maximize the
artificial lighting from residences, by the State Parks Division of the opportunity for a Federal agency to
human-generated refuse that may attract ADCNR. It has pressures from heavy adequately consider proposed species
predators, habitat fragmentation from recreational use and ABM habitat here and critical habitat and avoid potential
the design and construction of has been severely impacted by recent delays in implementing their proposed
properties (and access routes) to hurricanes. Threats to ABM habitat action because of the section 7(a)(2)
inholdings, and primary and secondary include loss of dune topography and compliance process, should those
dunefields impacted from recent storm vegetation from habitat destruction, species be listed or the critical habitat
events. human-generated refuse that could designated.
Under conference procedures, the
Unit 5: Gulf State Park attract predators, and artificial lighting.
Service may provide advisory
Habitat fragmentation also threatens
conservation recommendations to assist
Unit 5 consists of 192 ac (78 ha) of ABM within this unit.
the agency in eliminating conflicts that
ABM habitat in Gulf State Park, may be caused by the proposed action.
Effects of Critical Habitat Designation
immediately east of the City of Gulf The Service may conduct either
Shores and west of the City of Orange Section 7 Consultation informal or formal conferences. Informal
Beach. This unit retains most critical Section 7 of the Act requires Federal conferences are typically used if the
habitat designated in the 1985 listing agencies, including the Service, to proposed action is not likely to have any
rule (Zone 3—all primary and secondary ensure that actions they fund, authorize, adverse effects to the proposed species
dunes south of State Route 182) (June 6, or carry out are not likely to destroy or or critical habitat. Formal conferences
1985; 50 FR 23872) and adds adversely modify critical habitat. In our are typically used when the Federal
approximately 30 ac (12 ha) of scrub regulations at 50 CFR 402.02, we define agency or the Service believes the
habitat located directly north of S.R. destruction or adverse modification as proposed action is likely to cause
182. It extends from MHWL northward ‘‘a direct or indirect alteration that adverse effects to proposed species or
to a natural boundary consisting of appreciably diminishes the value of critical habitat, inclusive of those that
brackish wetlands and maritime forest. critical habitat for both the survival and may cause jeopardy or adverse
ABM habitat covered under the 2004 recovery of a listed species. Such modification.
HCP and subsequent HCP–ITP alterations include, but are not limited The results of an informal conference
modifications is excluded from the to, alterations adversely modifying any are typically transmitted in a conference
designation (see ‘‘Application of of those physical or biological features report; while the results of a formal
Exclusions Under Section 4(b)(2) of the that were the basis for determining the conference are typically transmitted in a
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Act’’ section). habitat to be critical.’’ However, recent conference opinion. Conference


This unit contains a mix of scrub and decisions by the 5th and 9th Circuit opinions on proposed critical habitat are
primary and secondary dune habitat, Court of Appeals have invalidated this typically prepared according to 50 CFR
and represents the last remaining definition. Pursuant to current national 402.14, as if the proposed critical
sizable block of habitat on the eastern policy and the statutory provisions of habitat were designated. We may adopt

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the conference opinion as the biological Federal agencies may request Adverse Modification Standard
opinion when the critical habitat is reinitiation of consultation with us on The analytical framework described
designated, if no substantial new actions for which formal consultation in the Director’s December 9, 2004,
information or changes in the action has been completed, if those actions memorandum is used to complete
alter the content of the opinion (see 50 may affect subsequently listed species section 7(a)(2) analyses for Federal
CFR 402.10(d)). As noted above, any or designated critical habitat or actions affecting ABM critical habitat.
conservation recommendations in a adversely modify or destroy proposed The key factor related to the adverse
conference report or opinion are strictly critical habitat. We anticipate that at modification determination is whether,
advisory. least one consultation will have to be with implementation of the proposed
If a species is listed or critical habitat reinitiated as a result of this Federal action, the affected critical
is designated, section 7(a)(2) of the Act
designation. habitat would remain functional (or
requires Federal agencies to ensure that
Federal activities that may affect ABM retain the current ability for the primary
activities they authorize, fund, or carry
out are not likely to jeopardize the or their designated critical habitat will constituent elements to be functionally
continued existence of such a species or require section 7 consultation under the established) to serve the intended
to destroy or adversely modify its Act. Activities on State, Tribal, local or conservation role for the species.
critical habitat. If a Federal action may private lands requiring a Federal permit Generally, the conservation role of ABM
affect a listed species or its critical (such as a permit from the Corps under critical habitat units is to support viable
habitat, the responsible Federal agency section 404 of the Clean Water Act or a core area populations.
(action agency) must enter into Section 4(b)(8) of the Act requires us
permit under section 10(a)(1)(B) of the
consultation with us. As a result of this to briefly evaluate and describe in any
Act from the Service) or involving some
consultation, compliance with the proposed or final regulation that
other Federal action (such as funding designates critical habitat those
requirements of section 7(a)(2) will be from the Federal Highway
documented through the Service’s activities involving a Federal action that
Administration, Federal Aviation may destroy or adversely modify such
issuance of: (1) a concurrence letter for Administration, or the Federal
Federal actions that may affect, but are habitat, or that may be affected by such
Emergency Management Agency) will designation. Activities that may destroy
not likely to adversely affect, listed also be subject to the section 7
species or critical habitat; or (2) a or adversely modify critical habitat may
consultation process. Federal actions also jeopardize the continued existence
biological opinion for Federal actions
not affecting listed species or critical of the species.
that may affect, and are likely to
habitat, and actions on State, Tribal, Activities that may destroy or
adversely affect, listed species or critical
local or private lands that are not adversely modify critical habitat are
habitat.
When we issue a biological opinion federally funded, authorized, or those that alter the PCEs to an extent
concluding that a project is likely to permitted, do not require section 7 that the conservation value of critical
result in jeopardy to a listed species or consultations. habitat for Alabama beach mice is
the destruction or adverse modification appreciably reduced. Activities that,
Application of the Jeopardy and
of critical habitat, we also provide when carried out, funded, or authorized
Adverse Modification Standards for by a Federal agency, may affect critical
reasonable and prudent alternatives to Actions Involving Effects to the
the project, if any are identifiable. habitat and therefore result in
Alabama Beach Mouse and Its Critical consultation for Alabama beach mice
‘‘Reasonable and prudent alternatives’’
Habitat include, but are not limited to:
are defined at 50 CFR 402.02 as
alternative actions identified during Jeopardy Standard (1) Actions that would significantly
consultation that can be implemented in alter dune structure or the degree of soil
a manner consistent with the intended Prior to and following designation of compaction. Such activities could
purpose of the action, that are consistent critical habitat, the Service has applied include, but are not limited to,
with the scope of the Federal agency’s an analytical framework for ABM permanent conversion of ABM habitat
legal authority and jurisdiction, that are jeopardy analyses that relies heavily on for residential or commercial purposes,
economically and technologically the importance of core area populations excessive foot traffic, and heavy use of
feasible, and that the Director believes and connectivity to mouse survival and construction, utility, or off-road vehicles
would avoid jeopardy to the listed recovery. The section 7(a)(2) analysis is in beach mouse habitat. These activities,
species or destruction or adverse focused not only on these populations even if temporary, could alter burrow
modification of critical habitat. but also on the habitat conditions construction, reduce the availability of
Reasonable and prudent alternatives can necessary to support them. potential burrow sites, and degrade or
vary from slight project modifications to destroy beach mouse habitat.
The jeopardy analysis usually (2) Actions that would significantly
extensive redesign or relocation of the
project. Costs associated with expresses the survival and recovery alter the natural vegetation of the coastal
implementing a reasonable and prudent needs of Alabama beach mice in a dune community. Such activities could
alternative are similarly variable. qualitative fashion without making include, but are not limited to, allowing
Regulations at 50 CFR 402.16 require distinctions between what is necessary nonnative species to establish in the
Federal agencies to reinitiate for survival and what is necessary for area, landscaping with grass or other
consultation on previously reviewed recovery. Generally, if a proposed nonindigenous plants, and landscaping
actions in instances where a new Federal action is incompatible with the that yields excessive leaf litter, mulch,
species is listed or critical habitat is viability of the affected core area or other foreign materials. These
subsequently designated that may be population(s), inclusive of associated activities could alter beach mouse
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affected and the Federal agency has habitat conditions, a jeopardy finding is foraging activities and degrade or
retained discretionary involvement or considered to be warranted, because of destroy beach mouse habitat.
control over the action or such the relationship of each core area (3) Actions that would significantly
discretionary involvement or control is population to the survival and recovery alter natural lighting. Such activities
authorized by law. Consequently, some of the species as a whole. could include, but are not limited to,

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allowing artificial lighting that does not manage beach and scrub habitat for the that exist at a local level can provide
comply with wildlife-friendly lighting ABM) and two projects (standardize such protection and management, as can
specifications. These activities could surveys and manage and evaluate scrub lack of pressure for change, such as
alter beach mouse foraging activities, habitat for the ABM) that specifically areas too remote for anthropogenic
increase predation upon beach mice, address the subspecies. Many other disturbance. State, local, or private
and reduce the use of otherwise suitable objectives (for example, predator management plans, as well as
beach mouse habitat. management plan) and projects (for management under Federal agencies’
(4) Activities that eliminate or example, develop biological database) jurisdictions, can provide protection
degrade movement within and among would also benefit ABM. The Service and management to avoid the need for
designated critical habitat units. Actions has a statutory mandate to manage the designation of critical habitat. When we
such as bulkhead, canal, ditch, and wall refuge for the conservation of listed consider a plan to determine its
construction; the permanent conversion species, and the CCP provides a detailed adequacy in protecting habitat, we
of beach mouse habitat to residential or implementation plan. We believe that consider whether the plan, as a whole,
commercial development; changing of the CCP provides a substantial will provide the same level of protection
water elevations or flooding; the conservation benefit to the subspecies, that designation of critical habitat
removal of vegetation; and excessive and there are reasonable assurances that would provide. The plan need not lead
artificial lighting could effectively block it will be implemented properly and in to exactly the same result as a
east-west or north-south corridors an effective fashion within portions of designation in every individual
among various habitat types, and, the Perdue Unit of the Refuge that application, as long as the protection it
therefore, isolate habitat. contain the PCEs for the ABM. provides is equivalent, overall. In
The five critical habitat units are Furthermore, the Refuge, especially on making this determination, we examine
currently occupied by the subspecies, the Perdue Unit, has demonstrated its whether the plan provides management,
based on trapping data, our 2003 habitat resolve for ABM conservation by protection, or enhancement of the PCEs
map, and Service trapping protocol continually engaging in dune restoration that is at least equivalent to that
(Service 2005b, p. 2). All of the units activities (including following provided by a critical habitat
included in this designation contain the Hurricanes Ivan and Katrina) and semi- designation, and whether there is a
features that are essential to the annual ABM trapping, and through reasonable expectation that the
conservation of the ABM or are found to outreach and education. Accordingly, management, protection, or
be essential for the conservation of the we believe that the Perdue Unit of the enhancement actions will continue into
subspecies. Federal agencies already Refuge does not meet the definition of the foreseeable future. Each review is
consult with us on activities in areas critical habitat under section 3(5)(A) of particular to the species and the plan,
currently occupied by the ABM. If ABM the Act because a secure management and some plans may be adequate for
may be affected by proposed actions, plan is already in place to provide for some species and inadequate for others.
Federal agencies consult with us to the conservation of the ABM, and no Section 4(b)(2) of the Act states that
ensure that their actions do not special management or protection will critical habitat shall be designated, and
jeopardize the continued existence of be required. revised, on the basis of the best
ABM. This happens regardless of The Service also either owns or available scientific data after taking into
whether or not critical habitat is manages 510 ac (206 ha) of coastal dune consideration the economic impact,
designated. habitat, most of which is occupied by national security impact, and any other
ABM, within the boundaries of the Fort relevant impact, of specifying any
Application of Section 3(5)(A) of the Act Morgan State Historic Site. These lands, particular area as critical habitat. The
Section 3(5)(A) of the Act defines collectively, are referred to as the Fort Secretary may exclude an area from
critical habitat as the specific areas Morgan Unit of the Refuge, but are critical habitat if he determines that the
within the geographic area occupied by within the Historic Site. Of the 510 ac, benefits of such exclusion outweigh the
the species on which are found those approximately 480 ac (194 ha) are benefits of specifying such area as part
physical and biological features (i) owned by the State but are managed by of the critical habitat, unless he
essential to the conservation of the the Service through a cooperative determines, based on the best scientific
species, and (ii) which may require management agreement with the data available, that the failure to
special management considerations or Alabama Historical Commission. While designate such area as critical habitat
protection. Therefore, areas within the the CCP outlines proposed management will result in the extinction of the
geographic area occupied by the species activities within the Fort Morgan Unit, species. In making that determination,
that do not contain the features essential we do not know whether the the Secretary is afforded broad
to the conservation of the species are cooperative management agreement will discretion, and the Congressional record
not, by definition, critical habitat. be modified or terminated in the future is clear that, in making a determination
Similarly, areas within the geographic and, therefore, if the conservation plan under the section, the Secretary has
area occupied by the species that outlined within the CCP will be discretion as to which factors and how
require no special management or implemented. Areas containing the much weight will be given to any factor.
protection also are not, by definition, PCEs within these State-owned lands Under section 4(b)(2) of the Act, in
critical habitat. (and the approximately 30 ac (12 ha) of considering whether to exclude a
Federal land imbedded within them), particular area from the designation, we
Perdue and Fort Morgan Units of the must identify the benefits of including
therefore, may require special
Bon Secour National Wildlife Refuge the area in the designation, identify the
management or protection, and are
The Refuge finalized its being designated as critical habitat. benefits of excluding the area from the
Comprehensive Conservation Plan designation, determine whether the
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(CCP) in November 2005. This Application of Exclusions Under benefits of exclusion outweigh the
document details proposed conservation Section 4(b)(2) of the Act benefits of inclusion. If an exclusion is
actions for the Refuge over a 15-year There are multiple ways to provide contemplated, then we must determine
period, and outlines three objectives management for species habitat. whether excluding the area would result
(implement monitoring protocol and Statutory and regulatory frameworks in the extinction of the species. In the

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following sections, we address a number restrictions on land-use options where past decade, we have encouraged non-
of general issues that are relevant to the threatened or endangered species are Federal landowners to enter into
exclusions we considered. found as illustrated by some of the conservation agreements, based on a
public comments received on this view that we can achieve greater species
Conservation Partnerships on Non-
proposal. Consequently, harboring conservation on non-Federal land
Federal Lands
endangered species is viewed by many through such partnerships than we can
Most federally listed species in the landowners as a liability, resulting in through coercive methods (61 FR 63854;
United States will not recover without anti-conservation incentives because December 2, 1996).
the cooperation of non-Federal maintaining habitats that harbor
landowners. More than 60 percent of the endangered species represents a risk to Habitat Conservation Plans (HCPs)
United States is privately owned (EPA future economic opportunities (Main et Section 10(a)(1)(B) of the Act
2003, p. 3–3) and at least 80 percent of al. 1999; Brook et al. 2003). authorizes us to issue to non-Federal
endangered or threatened species occur The purpose of designating critical entities a permit for the incidental take
either partially or solely on private habitat is to contribute to the of endangered and threatened species.
lands (USGAO 1995, p. 4). Stein et al. conservation of threatened and
(1995) found that only about 12 percent This permit allows a non-Federal
endangered species and the ecosystems
of listed species were found almost landowner to proceed with an activity
upon which they depend. The outcome
exclusively on Federal lands (90 to 100 that is legal in all other respects, but
of the designation, triggering regulatory
percent of their known occurrences that results in the incidental taking of a
requirements for actions funded,
restricted to Federal lands) and that 50 listed species (take that is incidental to,
authorized, or carried out by Federal
percent of federally listed species are and not the purpose of, the carrying out
agencies under section 7 of the Act, can
not known to occur on Federal lands at of an otherwise lawful activity). The Act
sometimes be counterproductive to its
all. specifies that an application for an
intended purpose on non-Federal lands.
Given the distribution of listed incidental take permit must be
According to some researchers, the
species with respect to land ownership, accompanied by a habitat conservation
designation of critical habitat on private
conservation of listed species in many lands significantly reduces the plan, and specifies the content of such
parts of the United States is dependent likelihood that landowners will support a plan. The purpose of conservation
upon working partnerships with a wide and carry out conservation actions plans is to describe and ensure that the
variety of entities and the voluntary (Main et al. 1999; Bean 2002; Brook et effects of the permitted action on
cooperation of many non-Federal al. 2003). The magnitude of this covered species are adequately
landowners (Wilcove and Chen 1998; negative outcome is greatly amplified in minimized and mitigated, and that the
Crouse et al. 2002; James 2002). situations where active management action does not appreciably reduce the
Building partnerships and promoting measures (for example, reintroduction, survival and recovery of the species.
voluntary cooperation of landowners is fire management, control of invasive There are currently 51 HCP sites
essential to understanding the status of species) are necessary for species containing habitat we have identified as
species on non-Federal lands and is conservation (Bean 2002). essential to the ABM conservation (see
necessary to implement recovery actions The Service believes that the ‘‘Criteria Used To Identify Critical
such as reintroducing listed species, judicious use of excluding specific areas Habitat’’ section). These include HCPs
habitat restoration, and habitat of non-federally owned lands from for 7 multifamily developments, 1 hotel
protection. critical habitat designations can and convention center complex, and 43
Many non-Federal landowners derive contribute to species recovery and single family homes.
satisfaction in contributing to provide a superior level of conservation The completed HCPs and the
endangered species recovery. The than critical habitat alone. associated ITPs issued by the Service
Service promotes these private-sector The Department of the Interior’s Four contain management measures and
efforts through the Four Cs C’s philosophy of conservation through protections for identified areas that
philosophy—conservation through communication, consultation, and protect, restore, and enhance the value
communication, consultation, and cooperation is the foundation for of these lands as habitat for ABM. These
cooperation. This philosophy is evident developing the tools of conservation. measures include explicit standards to
in Service programs such as HCPs, Safe These tools include conservation grants, minimize any impacts to the ABM and
Harbor Agreements, Candidate funding for Partners for Fish and its habitat. In general, HCPs are
Conservation Agreements, Candidate Wildlife Program, the Coastal Program, designed to ensure that the value of the
Conservation Agreements with and cooperative-conservation challenge conservation lands are maintained,
Assurances, and conservation challenge cost-share grants. Our Private expanded, and improved for covered
cost-share. Many private landowners, Stewardship Grant program and species.
however, are wary of the possible Landowner Incentive Program provide
consequences of encouraging assistance to private landowners in their For HCPs that have been already
endangered species to their property, voluntary efforts to protect threatened, approved, we have provided assurances
and there is mounting evidence that imperiled, and endangered species, to permit holders that once the
some regulatory actions by the Federal including the development and protection and management required
government, while well-intentioned and implementation of HCPs. under the plans are in place and for as
required by law, can (under certain Conservation agreements with non- long as the permit holders are fulfilling
circumstances) have unintended Federal landowners (for example, their obligations under the plans, no
negative consequences for the Habitat Conservation Plans (HCPs), additional mitigation in the form of land
conservation of species on private lands contractual conservation agreements, or financial compensation will be
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(Wilcove et al. 1996; Bean 2002; Conner easements, and stakeholder-negotiated required of the permit holders and, in
and Mathews 2002; James 2002; Koch State regulations) enhance species some cases, specified third parties.
2002; Brook et al. 2003). Many conservation by extending species A discussion of all HCP sites that we
landowners fear a decline in their protections beyond those available have identified as essential for the
property value due to real or perceived through section 7 consultations. In the conservation of the subspecies follows.

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Multifamily Developments With HCPs plan to streamline review and offer approximately 22 percent of the project
and Issued ITPs greater minimization and mitigation. site.
The applicants submitted a habitat The HCP for these projects outlines
HCPs for six multifamily
conservation plan for these projects in numerous conservation measures
developments along the Fort Morgan
2001, and following subsequent designed specifically for ABM. These
Peninsula were approved between 1994
environmental review, the Service measures include, but are not limited to,
and 1996. These developments include,
issued ITPs to both parties in 2002. The wildlife-friendly outdoor lighting,
from west to east, The Dunes, Bay to
Sierra Club and Friends of the Earth, control of cats and house mice, an ABM
Breakers, Kiva Dunes, Plantation Palms,
Inc. filed an action in the United States outreach program, dune walkovers,
The Beach Club, and Martinique, all of
District Court for the Southern District collection of trapping data, and habitat
which were issued 30-year ITPs by the
of Alabama challenging our restoration. Numerous measures
Service. The HCPs covering the
environmental review of the projects designed to minimize temporary
properties are almost identical and construction impacts (such as signage,
under the National Environmental
consist of setting aside primary and placement of staging areas, removal of
Policy Act and the Administrative
secondary dune habitat in perpetuity, waste) are also outlined. In addition, in
Procedure Act.
and the construction of dune walkovers As a result of this litigation, the association with the Gulf Highlands
within protected areas to minimize Service agreed to a voluntary remand of HCP, the permittees have agreed to set
pedestrian impact to habitat. These the environmental review and aside 96.8 ac (39 ha) of lands that would
HCPs also require the use of native proceeded to develop an Environmental be placed into conservation status
plants in landscaping, control of Impact Statement (EIS) to more through a conservation easement or
domestic and feral cats, interpretive thoroughly evaluate the impact of the other legal protective document. A
signage, minimal outdoor lighting, proposed developments on the natural perpetual conservation easement was
trapping surveys, and annual reports. and human environments. The ITPs created on October 30, 2000, for the Gulf
HCPs for The Beach Club and issued in 2002 were held in abeyance Highlands Condominiums portion (42.6
Martinique developments also include pending the outcome of this ac) of the conservation area in
the creation of endowment funds for use environmental review and of review of anticipation of ITP issuance and is held
in future ABM conservation activities the projects under the Act. We by the Baldwin County Commission.
(such as research or habitat restoration). completed our DEIS (which contained The Beach Club West portion (54.2 ac)
All of these properties have been five alternatives) in early 2006 and of the conservation area is protected
developed as permitted or are nearing announced its availability (and through a Declaration of Abandonment,
completion, and the areas within the associated 90-day public comment filed with Baldwin County on April 15,
properties that we have identified as period) in the Federal Register on April 2002. The private inholdings located
containing the features that are essential 28, 2006 (71 FR 25221). We held a within the project area that will not be
to the conservation of the ABM consist public hearing on the DEIS in Gulf part of this project, are not subject to the
of the acreage set aside as ABM Shores on June 26, 2006. The notice same restrictions, and are therefore
conservation zones (see Table 2 above). announcing the availability of a final included in the designation.
Most of these conservation zones were EIS and determination to sign a record Although approximately 6 ac (2 ha) of
designated as critical habitat at the time of decision (ROD) on Beach Club West— the area owned by the permittees and
ABM was listed on June 6, 1985 (50 FR Gulf Highlands was published in the identified in this analysis as essential to
23885). Federal Register on November 29, 2006 the conservation of the subspecies is
On the basis of the conservation (71 FR 69141). Both the ROD and part of road rights-of-way retained by
benefits afforded the ABM from the modified permit instruments were Baldwin County, these acres will be
referenced HCPs and the provisions of signed on January 10, 2007. managed in accordance with the HCP
section 4(b)(2) of the Act, we exclude The proposed developments involve for Gulf Highlands. As part of their
from critical habitat the areas on these the construction of six 20-story towers inclusion in areas being managed with
properties that contain the features that and a seventh smaller tower—clubhouse an HCP, the 6 acres surrounding these
are essential to the conservation of the facility. This construction will rights-of-way will have management
subspecies. We have further determined permanently convert 40.5 ac (16.3 ha) of including numerous conservation
that the exclusion from critical habitat the total project site. With this design, measures designed specifically for
of these areas would not result in the the permittees have demonstrated they ABM. These measures include, but are
extinction of the ABM. The rationale for are minimizing the project footprint to not limited to, wildlife-friendly outdoor
this determination is below (see the greatest extent possible through the lighting, control of cats and house mice,
‘‘Benefits of Exclusion of 51 Areas clustering of the development in the an ABM outreach program, dune
Protected by Service-Approved HCPs’’). eastern corner of the property, the use walkovers, collection of live-trapping
of parking garages, and the removal of data, and habitat restoration. Numerous
Proposed Beach Club West and Gulf
some recreational facilities (such as measures designed to minimize
Highlands Developments
tennis courts) from the original design. temporary construction impacts (such as
These projects consist of several Construction of the projects will involve signage, placement of staging areas,
proposed condominium towers and an additional 21.9 ac (8.9 ha) of removal of waste) are also outlined.
associated amenities. We were first temporary impacts to ABM habitat; Because these rights-of-way have not
approached by the proponents of Gulf however, according to the HCP, these been vacated and transferred to the
Highlands in 1995 (and proponents of areas will be restored to beach mouse permittees, they could be developed in
Beach Club West in 2000) about the habitat. Per the HCP, all other areas on the future at the discretion of the
development of a 187-ac (75-ha) site the project site (with the exception of County. However, should the County
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within Unit 3 of the designated critical road right-of-way owned by Baldwin decide to pursue development of these
habitat. While these two projects are County) will be protected by restrictive areas, it would either have to pursue an
separate, they are adjacent to one covenants, permit and HCP conditions, incidental take permit or enter into
another, and we recommended they or conservation easements. The section 7 consultation (depending upon
submit a joint ABM habitat conservation permittees will permanently develop the presence of a Federal nexus in the

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project). Because these rights-of-way do pollution than the old pier, thereby rationale for this determination is below
not require additional management reducing impacts to sea turtles. (see ‘‘Benefits of Exclusion of 51 Areas
considerations or protection, they do On the basis of the conservation Protected by Service-Approved HCPs’’).
not meet the definition of critical habitat benefits afforded the ABM from this Following is our analysis of the
under section 3(5)(A) of the Act. HCP and the provisions of section benefits of including lands within
On the basis of the conservation 4(b)(2) of the Act, we exclude from approved HCPs versus excluding such
benefits afforded the ABM from the critical habitat the 43 ac (17 ha) covered lands from this critical habitat
referenced HCP and the provisions of area, portions of which we have designation.
section 4(b)(2) of the Act, we exclude identified to contain the features that
(1) Benefits of Inclusion of 51 Areas
from critical habitat all areas within the are essential to the conservation of the
Protected Through Service-Approved
Gulf Highlands-Beach Club West project subspecies. We have further determined
HCPs
sites containing the features essential to that the exclusion of this area from
the conservation of the subspecies. This critical habitat would not result in the The principal regulatory benefit of
does not include any private inholdings extinction of the ABM. The rationale for critical habitat is that federally
as outlined above. We have further this determination is below (see authorized, funded, or carried out
determined that the exclusion of these ‘‘Benefits of Exclusion of 51 Areas activities require consultation pursuant
areas from critical habitat would not Protected by Service-Approved HCPs’’). to section 7 of the Act to ensure that
result in the extinction of the ABM. The they will not destroy or adversely
Single Family Homes modify critical habitat. In the Gifford
rationale for this determination is below
(see ‘‘Benefits of Exclusion of 51 Areas Prior to August 2004, we approved Pinchot decision, the U.S. Court of
Protected by Service-Approved HCPs’’). HCPs for the construction of two single- Appeals for the Ninth Circuit ruled that
family homes in the Cabana Beach adverse modification evaluations
Gulf State Park Hotel and Convention subdivision. Portions of both these require consideration of impacts on the
Center Complex properties have been determined to recovery of species (379 F.3d 1059,
In 2004, we approved an HCP for the contain the features that are essential to 1070–1072). Conducting section 7
demolition of existing Gulf State Park the conservation of the ABM. In August consultations would provide benefits on
(GSP) and construction of a new hotel 2004, we approved HCPs and issued HCP lands with a Federal nexus by
and convention center on the site. In ITPs for the construction of 11 helping ensure the integrity of these
response to hurricane impacts and the additional single family homes in lands is maintained. For example, if a
need to minimize future impacts, the occupied ABM habitat. Four of these federally funded road project was
ITP issued for this project was modified properties have been determined to proposed to cross HCP lands that were
in 2005 to adjust the footprint of the contain features essential to the designated as critical habitat, a
GSP beach pavilion and parking lot. The conservation of the ABM (see ‘‘Criteria consultation would need to be
new GSP complex will replace the Used To Identify Critical Habitat’’). In conducted to ensure the designated
current facilities (which were destroyed September 2005, we approved HCPs for critical habitat was not destroyed or
during Hurricane Ivan) and its the construction of 55 more residences adversely modified. However, the
construction will result in a net gain of within occupied ABM habitat. Thirty- presence of ABM would trigger
3 ac (1 ha) of ABM habitat due to seven of these properties (11 of which consultation under section 7 of the Act
improved siting and design of the are located within ‘‘The Dunes’’ under the jeopardy standard regardless
structures and restoration work outlined development) have been determined to of whether critical habitat is designated.
in the HCP. The HCP covers both the be essential to the ABM. The HCPs and Designation of critical habitat also
construction and operation of the ITPs covering all of these properties, serves to educate landowners, State and
facilities; outlines an aggressive strategy while under and after construction, local governments, and the public,
for the control of roaming cats, house require a small developed footprint regarding the potential conservation
mice, and refuse; and includes wildlife- (typically no larger than 0.1 ac (0.004 value of the area. This helps focus,
friendly lighting, native landscaping, ha)) for all structures and driveways, the prioritize, and revitalize conservation
and visitor outreach on the fragile construction of a dune walkover for efforts, such as dune restoration
coastal environment (including outreach Gulf-front lots, and the conservation of projects, or more extensive monitoring
concerning the ABM). The area covered the remaining ABM habitat on the of beach mouse populations.
by the HCP and ITP includes the 43 ac property for the duration of the ITP. The
(17 ha) surrounding the complex. In HCPs also call for wildlife-friendly (2) Benefits of Exclusion of 51 Areas
February 2006, ADCNR informed us of lighting, landscaping with native plants, Protected by Service-Approved HCPs
new plans to consolidate the new control of domestic pets (cats), and We identified a number of possible
fishing pier (the previous pier was refuse control. The associated ITPs are benefits of excluding the area covered
destroyed during Hurricane Ivan) with valid for 50 years, and ITP permit by the 51 HCPs from critical habitat
the convention center complex. This conditions are transferable if property designation. First, exclusion would
consolidation involves demolition and ownership changes. reduce largely redundant administrative
restoration of the old pier (and On the basis of the conservation costs of section 7 consultation. There is
associated parking area) and benefits afforded the ABM from the no added value in designating these 51
construction of a new pier 250 ft to the referenced HCPs and the provisions of HCP sites as critical habitat because
east. By moving the pier and associated section 4(b)(2) of the Act, we are they are subject to the legally
parking eastward into the previously excluding from critical habitat ABM enforceable conditions of ITPs. HCP
authorized development footprint, the habitat within these 43 properties that sites are still protected by the section 7
revised plan reduces impacts to ABM contain features essential to ABM ‘‘jeopardy standard’’ in the event a
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habitat by 2 ac (1 ha). The new pier will conservation and are covered by HCPs Federal action may adversely affect
also feature state-of-the-art, wildlife- and issued ITPs. We have further mice there. For instance, if a federally
friendly lighting (mainly shielded, low determined that the exclusion of these funded roadway project were planned to
wattage-low pressure sodium lighting) areas from critical habitat would not bisect an HCP site, the Federal action
and, therefore, result in much less light result in the extinction of the ABM. The agency would still be required to

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consult with us regarding whether or the other hand, failure to exclude HCP the benefits of exclusion outweigh the
not the roadway would adversely affect lands could undermine the conservation benefits of inclusion.
ABM. Second, exclusion would help to benefits provided by the HCP program,
(4) Exclusion Will Not Result in
foster an atmosphere of cooperation in and, more generally, the partnerships
Extinction
the conservation of endangered species. required to conserve most listed species.
HCPs and other conservation It is possible, although unlikely, that Because we anticipate that little, if
partnership efforts typically provide far Federal action will be proposed that any, conservation benefit to the ABM
greater conservation benefits to species would be likely to destroy or adversely will be foregone as a result of excluding
than the limited benefits arising from modify the essential habitat within the these areas (ABM in these areas are
critical habitat designation. The latter area governed by these HCPs. If such a protected by sections 7 and 9 of the Act
benefits are restricted to actions with a project was proposed, due to the regardless of whether critical habitat is
Federal nexus and can require only that specific way in which jeopardy and designated), the exclusion will not
the action not adversely modify the adverse modification are analyzed for result in the extinction of the ABM.
habitat. It cannot compel, and in ABM (we monitor take through habitat Accordingly, we exercise discretion
loss), it would likely also jeopardize the under section 4(b)(2) to exclude the
practice may discourage, the sort of
continued existence of the species. In areas covered by these HCPs from the
active management actions that
addition, we expect that the benefit of designation of critical habitat for the
generally are needed to recover listed
informing the public of the importance ABM.
species. Two of our HCP sites have
provided endowments for beach mouse of this area to ABM conservation would General Principles of Section 7
conservation, and these sites and other be slight due to the fact that there was Consultations Used in the 4(b)(2)
multifamily developments provide us a previous designation of critical habitat Balancing Process
with seasonal trapping data vital to for ABM in many of these areas (that The most direct, and potentially
beach mouse conservation efforts. underwent public notice and comment), largest, regulatory benefit of critical
Through the HCP program, we also the HCPs themselves underwent public habitat is that federally authorized,
retain the permission to live-trap and review and comment, and this funded, or carried out activities require
monitor habitat on private land, designation has undergone public consultation pursuant to section 7 of the
something that a critical habitat review and comment. It is now public Act to ensure that they are not likely to
designation does not confer. knowledge that conservation areas destroy or adversely modify critical
Conservation areas within HCP sites we within many areas with Service- habitat. There are two limitations to this
have identified as essential to the sponsored HCP sites contain the regulatory effect. First, it only applies
conservation of the species are protected physical and biological features where there is a Federal nexus—if there
from predators, subject to rules essential to the conservation of the is no Federal nexus, designation itself
restricting uncontained human refuse species. Therefore, we assigned does not restrict actions that destroy or
and excessive artificial light, and relatively little weight to the benefits of adversely modify critical habitat.
conservation subject to a host of other designating this area as critical habitat. Second, it only limits destruction or
beneficial requirements that are not In contrast, although the benefits of adverse modification. By its nature, the
conveyed by critical habitat designation. encouraging participation in HCPs, prohibition on adverse modification is
Through developing positive (particularly large-scale HCPs) and designed to ensure those areas that
conservation relationships with helping to foster cooperative contain the physical and biological
property owners along the Alabama conservation are indirect, enthusiastic features essential to the conservation of
coastline, we are able to partner with HCP participation and an atmosphere of the species or unoccupied areas that are
private landowners in habitat cooperation are crucial to the long-term essential to the conservation of the
restoration, conduct beach mouse effectiveness of the endangered species species are not eroded. Critical habitat
translocations, and monitor program. designation alone, however, does not
populations, thereby facilitating require specific steps toward recovery.
(3) Benefits of Exclusion of 51 Areas
recolonization of previously inhabited Once consultation under section 7 of
Protected by Service-Approved HCPs
areas, encouraging and providing the Act is triggered, the process may
Outweigh the Benefits of Inclusion
suitable habitat for the long-term conclude informally when the Service
persistence of beach mice, obtaining We have assigned great weight to the concurs in writing that the proposed
more information on the subspecies, benefits of excluding certain lands from Federal action is not likely to adversely
and improving and discovering new this critical habitat designation, since affect the listed species or its critical
techniques and opportunities that will we believe conservation is best fostered habitat. However, if the Service
assist in ABM recovery. While these in a voluntary environment. To the determines through informal
activities are admittedly required by extent that there are regulatory benefits consultation that adverse impacts are
HCPs and associated ITPs, our of including these lands as critical likely to occur, then formal consultation
relationships with permittees and other habitat, the associated costs could be would be initiated. Formal consultation
private stakeholders, which are avoided by excluding the areas from concludes with a biological opinion
extremely important for ABM designation. We expect the regulatory issued by the Service on whether the
conservation (see ‘‘Conservation benefits to be slight, because these areas proposed Federal action is likely to
Partnerships’’ section above), could be are currently occupied, and consultation jeopardize the continued existence of a
damaged by unnecessary regulation. will occur regardless of critical habitat listed species or result in destruction or
Exclusion would provide an incentive designation. adverse modification of critical habitat,
for participation in the development of We have determined that the benefits with separate analyses being made
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new HCPs and non-HCP-related ABM of inclusion of the areas covered by under both the jeopardy and the adverse
conservation activities. The exclusion of these 51 HCPs are small, while the modification standards. For critical
HCP lands from critical habitat benefits of exclusion are substantial. habitat, a biological opinion that
designations is an important incentive Through these measures identified concludes in a determination of no
for participation in the HCP program; on above, we believe that for these 51 sites, destruction or adverse modification may

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contain discretionary conservation delineating areas of high conservation by excluding the area, because most or
recommendations to minimize adverse value for the ABM. In general the all of the areas in question are currently
effects to primary constituent elements, educational benefit of a critical habitat occupied by the listed species or
but it would not contain any mandatory designation always exists, although in considered essential to the conservation
reasonable and prudent measures or some cases it may be redundant with of the species, and there will be
terms and conditions. Mandatory other educational effects. For example, requirements for consultation under
reasonable and prudent alternatives to HCPs have significant public input and section 7 of the Act, or for permits
the proposed Federal action would only may largely duplicate the educational under section 10 (henceforth
be issued when the biological opinion benefit of a critical habitat designation. ‘‘consultation’’), for any take of these
results in a jeopardy or adverse This benefit is closely related to a species, and other protections for the
modification conclusion. second, more indirect benefit: that species exist elsewhere in the Act and
We also note that for 30 years prior to designation of critical habitat would under State and local laws and
the Ninth Circuit Court’s decision in inform State agencies and local regulations. In conducting economic
Gifford Pinchot, the Service equated the governments about areas that could be analyses, we are guided by the 10th
jeopardy standard with the standard for conserved under State laws or local Circuit Court of Appeal’s ruling in the
destruction or adverse modification of ordinances. New Mexico Cattle Growers Association
critical habitat. The Court ruled that the However, we believe that there would case (248 F.3d at 1285), which directed
Service could no longer equate the two be little additional informational benefit us to consider all impacts, ‘‘regardless of
standards and that adverse modification gained from the designation of critical whether those impacts are attributable
evaluations require consideration of habitat for the exclusions we are making co-extensively to other causes.’’ As
impacts on the recovery of species. in this rule because these areas were
explained in the analysis, due to
Thus, under the Gifford Pinchot included in the proposed rule as having
possible overlapping regulatory schemes
decision, critical habitat designations habitat containing the features essential
and other reasons, some elements of the
may provide greater benefits to the to the conservation of the species.
analysis may also overstate some costs.
recovery of a species. However, we Consequently, we believe that the
believe the conservation achieved informational benefits are already Conversely, the Ninth Circuit has
through implementing habitat provided, even though these areas are recently ruled (Gifford Pinchot, 378 F.3d
conservation plans (HCPs) or other not designated as critical habitat. at 1071) that the Service’s regulations
habitat management plans is typically Additionally, the purpose normally defining ‘‘adverse modification’’ of
greater than would be achieved through served by the designation, that of critical habitat are invalid because they
multiple site-by-site, project-by-project, informing State agencies and local define adverse modification as affecting
section 7 consultations involving governments about areas that would both survival and recovery of a species.
consideration of critical habitat. benefit from protection and The Court directed us to consider that
Management plans commit resources to enhancement of habitat for the ABM, is determinations of adverse modification
implement long-term management and already well established among State should be focused on impacts to
protection to particular habitat for at and local governments, and Federal recovery. While we have not yet
least one and possibly other listed or agencies in those areas that we are proposed a new definition for public
sensitive species. Section 7 excluding from critical habitat in this review and comment, compliance with
consultations only commit Federal rule on the basis of other existing the Court’s direction may result in
agencies to prevent adverse habitat management protections. additional costs associated with the
modification to critical habitat caused The information provided in this designation of critical habitat
by the particular project, and they are section applies to all the discussions (depending upon the outcome of the
not committed to provide conservation herein that discuss the benefits of rulemaking). In light of the uncertainty
or long-term benefits to areas not inclusion and exclusion of critical concerning the regulatory definition of
affected by the proposed project. Thus, habitat. adverse modification, our current
any HCP or management plan that methodological approach to conducting
Relationship of Critical Habitat to
considers enhancement or recovery as economic analyses of our critical habitat
Economic Impacts—Exclusions Under
the management standard will always designations is to consider all
Section 4(b)(2) of the Act
provide as much or more benefit than a conservation-related costs. This
consultation for critical habitat Section 4(b)(2) of the Act allows the
approach would include costs related to
designation conducted under the Secretary to exclude areas from critical
sections 4, 7, 9, and 10 of the Act, and
standards required by the Ninth Circuit habitat for economic reasons if he
should encompass costs that would be
in the Gifford Pinchot decision. determines that the benefits of such
considered and evaluated in light of the
The information provided in this exclusion exceed the benefits of
Gifford Pinchot ruling.
section applies to all the discussions designating the area as critical habitat,
below that discuss the benefits of unless the exclusion will result in the In addition, we have received several
inclusion and exclusion of critical extinction of the species concerned. credible comments on the economic
habitat in that it provides the framework Congress has granted this discretionary analysis contending that it
for the consultation process. authority to the Secretary with respect underestimates, perhaps significantly,
to critical habitat. Although economic the costs associated with this critical
Educational Benefits of Critical Habitat and other impacts may not be habitat designation. Both of these factors
A benefit of including lands in critical considered when listing a species, are a balancing consideration against the
habitat is that the designation of critical Congress has expressly required their possibility that some of the costs shown
habitat serves to educate landowners, consideration when designating critical in the economic analysis might be
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State and local governments, and the habitat. attributable to other factors, or are
public regarding the potential In making the exclusions, we have, in overly high, and so would not
conservation value of an area. This general, considered that all of the costs necessarily be avoided by excluding the
helps focus and promote conservation and other impacts predicted in the area for which the costs are predicted
efforts by other parties by clearly economic analysis may not be avoided from this critical habitat designation.

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Economic Analysis inflation, the costs would range from organizations, and small government
Section 4(b)(2) of the Act requires us $16.1 million to $46.9 million over 20 jurisdictions). However, no regulatory
to designate critical habitat on the basis years, or $1.1 million to $3.1 million flexibility analysis is required if the
of the best scientific information annually using a three percent discount; head of an agency certifies the rule will
available and to consider the economic or $14.2 million to $41.8 million over 20 not have a significant economic impact
and other relevant impacts of years, or $1.3 million to $3.9 million on a substantial number of small
designating a particular area as critical annually, using a seven percent entities. The SBREFA amended the RFA
habitat. We may exclude areas from discount. Although disproportionate to require Federal agencies to provide a
critical habitat upon a determination impacts may exist, the areas that may statement of factual basis for certifying
suffer these impacts are already being that the rule will not have a significant
that the benefits of such exclusions
excluded due to other reasons (see economic impact on a substantial
outweigh the benefits of specifying such
‘‘Application of Exclusions Under number of small entities. The SBREFA
areas as critical habitat. We cannot
Section 4(b)(2) of the Act’’ for more also amended the RFA to require a
exclude such areas from critical habitat
detail). Therefore, the Service did not certification statement.
when such exclusion will result in the Small entities include small
extinction of the species concerned. exclude any areas based on economics.
A copy of the final economic analysis organizations, such as independent
Following the publication of the nonprofit organizations; small
proposed critical habitat designation, with supporting documents is included
in our administrative record and may be governmental jurisdictions, including
we conducted an economic analysis to school boards and city and town
estimate the potential economic effect of obtained by contacting U.S. Fish and
Wildlife Service, Branch of Endangered governments that serve fewer than
the designation. The draft analysis was 50,000 residents; as well as small
made available for public review on Species (see ADDRESSES) or by
downloading from the Internet at businesses. Small businesses include
August 8, 2006 (71 FR 44976). We manufacturing and mining concerns
accepted comments on the draft analysis http://www.fws.gov/daphne.
with fewer than 500 employees,
until September 7, 2006. Required Determinations wholesale trade entities with fewer than
The primary purpose of the economic 100 employees, retail and service
analysis is to estimate the potential Regulatory Planning and Review
businesses with less than $5 million in
economic impacts associated with the In accordance with Executive Order annual sales, general and heavy
designation of ABM critical habitat. 12866, this document is a significant construction businesses with less than
This information is intended to assist rule in that it may raise novel legal and $27.5 million in annual business,
the Secretary in making decisions about policy issues, but will not have an special trade contractors doing less than
whether the benefits of excluding annual effect on the economy of $100 $11.5 million in annual business, and
particular areas from the designation million or more or affect the economy agricultural businesses with annual
outweigh the benefits of including those in a material way. Due to the tight sales less than $750,000. To determine
areas in the designation. This economic timeline for publication in the Federal if potential economic impacts to these
analysis considers the economic Register, the Office of Management and small entities are significant, we
efficiency effects that may result from Budget (OMB) has not formally consider the types of activities that
the designation, including habitat reviewed this rule. As explained above, might trigger regulatory impacts under
protections that may be co-extensive we prepared an economic analysis of this rule, as well as the types of project
with the listing of the species. It also this action. We used this analysis to modifications that may result. In
addresses distribution of impacts, meet the requirement of section 4(b)(2) general, the term ‘‘significant economic
including an assessment of the potential of the Act to determine the economic impact’’ is meant to apply to a typical
effects on small entities and the energy consequences of designating the specific small business firm’s business
industry. This information can be used areas as critical habitat. We also used it operations.
by the Secretary to assess whether the to help determine whether to exclude To determine if the rule could
effects of the designation might unduly any area from critical habitat, as significantly affect a substantial number
burden a particular group or economic provided for under section 4(b)(2), if we of small entities, we consider the
sector. determine that the benefits of such number of small entities affected within
This analysis focuses on the direct exclusion outweigh the benefits of particular types of economic activities
and indirect costs of the rule. However, specifying such area as part of the (e.g., housing development, grazing, oil
economic impacts to land use activities critical habitat, unless we determine, and gas production, timber harvesting).
can exist in the absence of critical based on the best scientific data We apply the ‘‘substantial number’’ test
habitat. These impacts may result from, available, that the failure to designate individually to each industry to
for example, local zoning laws, State such area as critical habitat will result determine if certification is appropriate.
and natural resource laws, and in the extinction of the species. However, the SBREFA does not
enforceable management plans and best explicitly define ‘‘substantial number’’
management practices applied by other Regulatory Flexibility Act (5 U.S.C. 601
or ‘‘significant economic impact.’’
State and Federal agencies. Economic et seq.)
Consequently, to assess whether a
impacts that result from these types of Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is
protections are not included in the (RFA) (as amended by the Small affected by this designation, this
analysis as they are considered to be Business Regulatory Enforcement analysis considers the relative number
part of the regulatory and policy Fairness Act (SBREFA) of 1996), of small entities likely to be impacted in
baseline. whenever an agency is required to an area. In some circumstances,
The draft economic analysis found publish a notice of rulemaking for any especially with critical habitat
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that costs associated with conservation proposed or final rule, it must prepare designations of limited extent, we may
activities for the ABM are forecast to and make available for public comment aggregate across all industries and
range from $18.3 million to $51.9 a regulatory flexibility analysis that consider whether the total number of
million in undiscounted dollars over the describes the effect of the rule on small small entities affected is substantial. In
next 20 years. Adjusted for possible entities (small businesses, small estimating the number of small entities

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

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FEMA. A regulatory flexibility analysis tribal governments under entitlement In keeping with the Department of the
is not required. authority,’’ if the provision would Interior and Department of Commerce
‘‘increase the stringency of conditions of policy, we requested information from,
Small Business Regulatory Enforcement
assistance’’ or ‘‘place caps upon, or and coordinated development of, this
Fairness Act (5 U.S.C 801 et seq.)
otherwise decrease, the Federal final critical habitat designation with
Under SBREFA, this rule is not a Government’s responsibility to provide appropriate State resource agencies in
major rule. Our detailed assessment of funding’’ and the State, local, or Tribal Florida and Alabama. The designation
the economic effects of this designation governments ‘‘lack authority’’ to adjust of critical habitat in areas currently
is described in the economic analysis. accordingly. (At the time of enactment, occupied by ABM may impose nominal
Based on the effects identified in the these entitlement programs were: additional regulatory restrictions to
economic analysis, we believe that this Medicaid; AFDC work programs; Child those currently in place and, therefore,
rule will not have an annual effect on Nutrition; Food Stamps; Social Services may have little incremental impact on
the economy of $100 million or more, Block Grants; Vocational Rehabilitation State and local governments and their
will not cause a major increase in costs State Grants; Foster Care, Adoption activities. The designation may have
or prices for consumers, and will not Assistance, and Independent Living; some benefit to these governments in
have significant adverse effects on Family Support Welfare Services; and that the areas that contain the features
competition, employment, investment, Child Support Enforcement.) ‘‘Federal essential to the conservation of the
productivity, innovation, or the ability private sector mandate’’ includes a species are more clearly defined, and
of U.S.-based enterprises to compete regulation that ‘‘would impose an the primary constituent elements of the
with foreign-based enterprises. Refer to enforceable duty upon the private habitat necessary to the conservation of
the final economic analysis for a sector, except (i) a condition of Federal the species are specifically identified.
discussion of the effects of this assistance; or (ii) a duty arising from While making this definition and
determination. participation in a voluntary Federal identification does not alter where and
Executive Order 13211 program.’’ what federally sponsored activities may
The designation of critical habitat occur, it may assist these local
On May 18, 2001, the President issued does not impose a legally binding duty governments in long-range planning
Executive Order 13211 (Actions on non-Federal government entities or (rather than waiting for case-by-case
Concerning Regulations That private parties. Under the Act, the only section 7 consultations to occur).
Significantly Affect Energy Supply, regulatory effect is that Federal agencies
Distribution, or Use) on regulations that must ensure that their actions do not Civil Justice Reform
significantly affect energy supply, destroy or adversely modify critical In accordance with Executive Order
distribution, and use. Executive Order habitat under section 7. While non- 12988 (Civil Justice Reform), the Office
13211 requires agencies to prepare Federal entities who receive Federal of the Solicitor has determined that the
Statements of Energy Effects when funding, assistance, permits or rule does not unduly burden the judicial
undertaking certain actions. This final otherwise require approval or system and meets the requirements of
rule to designate critical habitat for authorization from a Federal agency for sections 3(a) and 3(b)(2) of the Order.
ABM is not expected to significantly an action may be indirectly impacted by We are designating critical habitat in
affect energy supplies, distribution, or the designation of critical habitat, the accordance with the provisions of the
use. Therefore, this action is not a legally binding duty to avoid Endangered Species Act. This final rule
significant energy action and no destruction or adverse modification of uses standard property descriptions and
Statement of Energy Effects is required. critical habitat rests squarely on the identifies the primary constituent
Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the elements within the designated areas to
extent that non-Federal entities are assist the public in understanding the
U.S.C. 1501 et seq.)
indirectly impacted because they habitat needs of the ABM.
In accordance with the Unfunded receive Federal assistance or participate
Mandates Reform Act (2 U.S.C. 1501 et in a voluntary Federal aid program, the Paperwork Reduction Act of 1995 (44
seq.), we make the following findings: Unfunded Mandates Reform Act would U.S.C. 3501 et seq.)
(a) This rule will not produce a not apply, nor would critical habitat This rule does not contain any new
Federal mandate. In general, a Federal shift the costs of the large entitlement collections of information that require
mandate is a provision in legislation, programs listed above on to State approval by OMB under the Paperwork
statute, or regulation that would impose governments. Reduction Act. This rule will not
an enforceable duty upon State, local, (b) We do not believe that this rule impose recordkeeping or reporting
Tribal governments, or the private sector will significantly or uniquely affect requirements on State or local
and includes both ‘‘Federal small governments because it will not governments, individuals, businesses, or
intergovernmental mandates’’ and produce a Federal mandate of $100 organizations. An agency may not
‘‘Federal private sector mandates.’’ million or greater in any year, that is, it conduct or sponsor, and a person is not
These terms are defined in 2 U.S.C. is not a ‘‘significant regulatory action’’ required to respond to, a collection of
658(5)–(7). ‘‘Federal intergovernmental under the Unfunded Mandates Reform information unless it displays a
mandate’’ includes a regulation that Act. The designation of critical habitat currently valid OMB control number.
‘‘would impose an enforceable duty imposes no obligations on State or local
upon State, local, or tribal governments’’ National Environmental Policy Act
governments. As such, a Small
with two exceptions. It excludes ‘‘a Government Agency Plan is not It is our position that, outside the
condition of Federal assistance.’’ It also required. Tenth Circuit, we do not need to
excludes ‘‘a duty arising from prepare environmental analyses as
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participation in a voluntary Federal Federalism defined by the NEPA in connection with


program,’’ unless the regulation ‘‘relates In accordance with Executive Order designating critical habitat under the
to a then-existing Federal program 13132 (Federalism), the rule does not Endangered Species Act of 1973, as
under which $500,000,000 or more is have significant Federalism effects. A amended. We published a notice
provided annually to State, local, and Federalism assessment is not required. outlining our reasons for this

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determination in the Federal Register References Cited (i) A contiguous mosaic of primary,
on October 25, 1983 (48 FR 49244). This A complete list of all references cited secondary, and scrub vegetation and
assertion was upheld in the courts of the in this rulemaking is available upon dune structure, with a balanced level of
Ninth Circuit (Douglas County v. request from the Field Supervisor, competition and predation and few or
Babbitt, 48 F.3d 1495 (9th Cir. Ore. Daphne Field Office (see ADDRESSES). no competitive or predaceous nonnative
1995), cert. denied 116 S. Ct. 698 species present, that collectively
(1996)). Author(s) provide foraging opportunities, cover,
The primary author of this package is and burrow sites.
Government-to-Government secondary dunes, generally dominated
the Daphne Field Office of the U.S. Fish
Relationship With Tribes by sea oats (Uniola paniculata), that
and Wildlife Service.
In accordance with the President’s despite occasional temporary impacts
List of Subjects in 50 CFR Part 17 and reconfiguration from tropical storms
memorandum of April 29, 1994,
Endangered and threatened species, and hurricanes, provide abundant food
‘‘Government-to-Government Relations
Exports, Imports, Reporting and resources, burrow sites, and protection
with Native American Tribal
recordkeeping requirements, from predators.
Governments’’ (59 FR 22951), Executive
Transportation. (iii) Scrub dunes, generally dominated
Order 13175, and the Department of
by scrub oaks (Quercus spp.), that
Interior’s manual at 512 DM 2, we Regulation Promulgation provide food resources and burrow
readily acknowledge our responsibility
■ Accordingly, we amend part 17, sites, and provide elevated refugia
to communicate meaningfully with
subchapter B of chapter I, title 50 of the during and after intense flooding due to
recognized Federal Tribes on a
Code of Federal Regulations, as set forth rainfall and/or hurricane-induced storm
government-to-government basis. We
below: surge.
have determined that there are no Tribal
(iv) Unobstructed habitat connections
lands occupied at the time of listing that PART 17—[AMENDED] that facilitate genetic exchange,
contain the features essential for the
dispersal, natural exploratory
conservation and no Tribal lands that ■ 1. The authority citation for part 17
movements, and recolonization of
are unoccupied areas that are essential continues to read as follows:
locally extirpated areas.
for the conservation of the ABM. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (v) A natural light regime within the
Therefore, designation of critical habitat 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– coastal dune ecosystem, compatible
for the ABM has not been designated on 625, 100 Stat. 3500; unless otherwise noted. with the nocturnal activity of beach
Tribal lands. mice, necessary for normal behavior,
■ 2. In § 17.95(a), revise the entry for
Takings ‘‘Alabama Beach Mouse (Peromyscus growth, and viability of all life stages.
polionotus ammobates)’’ to read as (3) Critical habitat does not include
In accordance with Executive Order follows: manmade structures (such as buildings,
12630, (‘‘Government Actions and aqueducts, airport runways, roads, other
Interference with Constitutionally § 17.95 Critical habitat—fish and wildlife. paved areas, and piers) and the land on
Protected Private Property Rights’’), we (a) Mammals. which they are located existing within
have analyzed the potential takings * * * * * the legal boundaries on the effective
implications of designating 1,211 ac date of this rule.
(490 ha) of lands in Baldwin County, Alabama Beach Mouse (Peromyscus (4) Critical habitat map units. Data
Alabama as critical habitat for the polionotus ammobates) layers defining map units were created
Alabama beach mouse in a takings (1) Critical habitat units are depicted by delineating habitats that contained
implication assessment. The takings for Baldwin County, Alabama, on the one or more of the PCEs defined in
implications assessment concludes that maps below. paragraph (2) of this entry, over 2005
this final designation of critical habitat (2) The primary constituent elements Baldwin County, Alabama color
does not pose significant takings of critical habitat for the Alabama Beach photography (UTM 16, NAD 83).
implications for lands within or affected Mouse are the habitat components that (5) Note: Index Map (Map 1) follows:
by the designation. provide: BILLING CODE 4310–55–P
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(6) Unit 1: Fort Morgan, Baldwin with the Fort Morgan State Historic Site, 403970.48, 3344230.37; 403292.55,
County, Alabama. or Ft. Morgan Parkway. 3344087.17; 402583.77, 3343995.19;
(i) General Description: Unit 1 (ii) Coordinates: From the Fort 401269.00, 3343995.19; 400971.42,
consists of 446 ac (180 ha) at the Morgan and Saint Andrews Bay USGS 3344125.04; 400976.83, 3344206.20;
extreme western tip of the Fort Morgan 1:24,000 quadrangle maps, Alabama, 401301.47, 3344628.22; 404286.32,
Peninsula in Baldwin County, Alabama. land bounded by the following UTM 16 3344756.22; 402854.33, 3344659.30;
This unit encompasses essential features NAD 83 coordinates (E, N): 401473.62, 402903.74, 3344669.55; 402929.27,
of Alabama beach mouse habitat within 3344763.21; 401547.57, 3344692.62; 3344691.88; 403288.24, 3344682.82;
the boundary of the Fort Morgan State 401513.96, 3344669.09; 01503.87,
403627.98, 3344721.72; 403654.87,
Historic Site and adjacent properties 3344514.47; 401369.42, 3344440.53;
3344714.12; 403590.33, 3344665.04;
west of the Bay to Breakers 401577.82, 3344356.49; 402008.06,
development. The southern and western 3344443.89; 402169.41, 3344622.04; 403546.85, 3344641.30; 403501.91,
extents are the mean high water level 402525.70, 3344682.54; 403820.62, 3344628.03; 403337.34, 3344622.77;
(MHWL). The unit extends northward to 3344782.93; 404628.95, 3344823.00; 403056.19, 3344638.97
either the seaward extent of maritime 404623.54, 3344330.64; 404288.09, (iii) Note: Map of Unit 1, Fort Morgan
forest, developed features associated 3344287.36; 403970.48, 3344745.87; (Map 2), follows:
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(7) Unit 2: Little Point Clear, Baldwin shown in the maps: 408673.97, 406165.25, 3344837.15; 404625.30,
County, Alabama. 3345088.73; 408690.96, 3345050.98; 3344770.73; 408639.12, 3344982.42;
(i) General Description: Unit 2 408964.63, 3345069.85; 408992.95, 408850.81, 3345011.48; 408626.67,
consists of 268 ac (108 ha) on the Fort 3345115.15; 409098.64, 3345124.59; 3344828.84; 408904.77, 3345015.63;
Morgan Peninsula in Baldwin County, 409260.96, 3345071.74; 409306.26, 409021.00, 3345003.18; 409033.45,
Alabama. This unit encompasses 3345047.20; 409421.39, 3345039.65; 3344837.15; 410127.40, 3344881.42;
essential features of Alabama beach 409421.39, 3345018.89; 409839.57, 409942.50, 3345003.19; 409321.94,
mouse habitat north of the mean high 3345038.68; 410450.38, 3345133.36; 3344964.94; 409122.17, 3344994.69;
water line (MHWL) and south of the 410638.20, 3345180.70; 411632.04, 409122.17, 3344839.55; 411303.93,
Alabama Department of Environmental 3345331.96; 411819.06, 3345348.96; 3344704.32; 410054.54, 3344754.13;
Management Coastal Construction 411819.06, 3345276.71; 411455.65, 410029.64, 3344741.68; 409992.28,
Control Line (as defined in Alabama 3345227.83; 411423.77, 3345234.20; 3344745.83; 409963.23, 3344758.28;
Administrative Code of Regulations 411115.62, 3345195.95; 410735.21, 408879.87, 3344720.92; 407157.29,
335–8–2–0.8) from the eastern property 3345138.57; 410735.21, 3345117.32; 3344642.06; 406011.67, 3344509.23;
boundary of Bay to Breakers eastward to 410129.52, 3345030.18; 405929.15, 405044.53, 3344417.91; 404700.02,
the western boundary of the Surfside 3344870.87; 406790.26, 3344915.69; 3344343.20; 404624.32, 3344815.46;
Shores subdivision. This unit also 406790.26, 3344944.50; 406889.49, 404709.17, 3344488.16; 405203.36,
includes essential features of Alabama 3344986.11; 406915.10, 3344986.11; 3344433.41; 405813.57, 3344509.70;
beach mouse habitat 160 ft south 406947.11, 3344973.31; 406972.72, 406027.79, 3344616.83; 406662.44,
(except where otherwise noted) of the 3344998.92; 406998.33, 3344960.50; 3344675.99; 406677.12, 3344600.23;
centerline of Fort Morgan Parkway, from 407039.95, 3344973.31; 407065.56, 407261.66, 3344729.73; 407664.18,
the eastern boundary of Bay to Breakers 3344950.90; 407148.55, 3344960.50; 3344758.57; 407637.12, 3344658.32;
east to the western boundary of the 407232.02, 3345008.52; 407238.42, 408856.44, 3344833.42; 408903.73,
Surfside Shores subdivision, and 3345034.13; 407289.64, 3344954.10; 3344832.33; 409944.78, 3344975.70;
associated areas as depicted on Map 3 407918.85, 3345054.48; 408411.28, 409961.53, 3344931.31; 409960.68,
in paragraph (7)(iii) of this entry and in 3345026.14; 408414.83, 3345068.65; 3344885.70; 409940.98, 3344852.55;
the coordinates provided in paragraph 408687.61, 3345125.34; 408723.04, 410474.83, 3344831.25; 411896.05,
(7)(ii) of this entry. 3345107.62; 406397.69, 3344654.51; 3344778.56; 411897.06, 3344677.82;
(ii) Coordinates: From the Saint 408502.15, 3344816.39; 408502.15, 411898.98, 3345357.59; 411899.47,
Andrews Bay USGS 1:24,000 3344974.12; 408369.32, 3344978.29; 3345349.16; 411899.92, 3345333.36;
quadrangle map, Alabama, land 408074.61, 3345003.18; 407842.17, 411898.69, 3345292.29
bounded by the following UTM 16 NAD 3344994.88; 407194.65, 3344878.65; (iii) Note: Map of Unit 2, Little Point
83 coordinates (E, N), except those areas 406327.13, 3344837.15; 406318.83, Clear (Map 3), follows:
covered by incidental take permits 3344720.92; 406181.85, 3344716.77; BILLING CODE 4310–55–P
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(8) Unit 3: Gulf Highlands, Baldwin 3344677.62; 411896.72, 3344778.70; 414735.88, 3344903.10; 414735.88,
County, Alabama. 411901.40, 3344895.52; 412585.68, 3344915.97; 414924.25, 3344913.63;
(i) General Description: Unit 3 3344637.82; 413286.36, 3345090.20; 414921.91, 3344972.13; 414738.22,
consists of 275 ac (111 ha) on the Fort 413224.06, 3345080.28; 413224.52, 3344974.47; 414738.22, 3344983.83;
Morgan Peninsula in Baldwin County, 3344927.47; 413284.56, 3344937.39 414921.91, 3344982.66; 414923.08,
Alabama. This unit encompasses (B) Gulf Highlands—414393.00, 3345043.50; 414738.22, 3345043.50;
essential features of Alabama beach 3344536.62; 414393.00, 3344732.11; 414738.22, 3345054.03; 414921.91,
mouse habitat north of the mean high 414676.12, 3344736.60; 415529.98, 3345054.03; 414921.91, 3345071.59;
water line (MHWL) to the seaward 3344440.00; 414671.87, 3344524.00; 414953.51, 3345073.93; 414953.51,
extent of interdunal wetlands as 414736.29, 3344520.49; 414736.41, 3345052.86; 414953.51, 3344876.19;
depicted on Map 4 in paragraph (8)(iii) 3344546.27; 415324.89, 3344541.53; (C) Gulf Shores Plantation—
of this entry and in the coordinates in 415326.46, 3344653.21; 415533.04, 414204.25, 3344552.35; 414204.25,
paragraph (8)(ii) of this entry. This unit 3344653.83; 415290.55, 3345011.54; 3344725.37; 414343.57, 3344754.58;
also includes essential features of 415327.74, 3345011.79; 415327.61, 414341.32, 3344543.36
Alabama beach mouse habitat 160 ft 3344980.39; 415290.42, 3344981.38;
(D) Cabana Beach—415938.37,
south of the centerline of Fort Morgan 415308.84, 3344940.80; 415327.02,
3344420.63; 416333.53, 3344954.65;
Parkway (except some areas to the north 3344940.72; 415327.30, 3344910.13;
416756.08, 3344395.60; 416750.70,
as noted in paragraphs (8)(ii) and (8)(iii) 415308.70, 3344910.21; 415358.01,
3344919.13; 415945.72, 3344968.29
of this entry). Unit 3 is bounded to the 3344940.99; 415376.61, 3344940.91;
415376.48, 3344910.33; 415357.88, (E) ROW—413472.87, 3345602.80;
west by the eastern property line of the 413767.66, 3345609.58; 413781.21,
Morgantown subdivision and to the east 3344910.41; 415291.27, 3345081.38;
415309.04, 3345081.30; 415309.47, 3345585.86; 414496.15, 3345582.47;
by the western property line of 414760.44, 3345545.20; 414973.90,
Martinique on the Gulf. 3345085.02; 415291.28, 3345084.28;
415326.74, 3345051.69; 415326.74, 3345460.49; 415278.85, 3345487.60;
(ii) Coordinates: From the Pine Beach
3345039.99; 415181.66, 3345041.16; 416224.19, 3345470.66; 415654.96,
and Saint Andrews Bay USGS 1:24,000
415184.00, 3345052.86; 415174.64, 3345426.61; 414973.90, 3345402.89;
quadrangle maps, Alabama, land
3345051.69; 415174.64, 3345041.16; 414533.42, 3345521.48; 413621.96,
bounded by the following UTM 16 NAD
414954.68, 3345042.33; 414954.68, 3345538.42; 411899.45, 3345292.57;
83 coordinates (E, N), except those areas
3344655.06; 414920.74, 3344656.23; 411899.63, 3345333.23; 411898.97,
covered by incidental take permits
414920.74, 3344761.53; 414735.88, 3345349.21; 411898.28, 3345357.92;
shown in the maps:
(A) Surfside Shores—412122.39, 3344762.70; 414735.88, 3344773.23; 416599.61, 3345528.80; 416603.89,
3344896.76; 412230.61, 3344952.19; 414921.91, 3344772.06; 414921.91, 3345480.95
412407.44, 3344970.66; 412407.44, 3344831.73; 414737.05, 3344832.90; (iii) Note: Map of Unit 3, Gulf
3344997.06; 413286.34, 3345139.58; 414737.05, 3344843.43; 414921.91, Highlands (Map 4), follows:
413283.70, 3344598.52; 411897.20, 3344842.26; 414923.08, 3344903.10; BILLING CODE 4310–55–P
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(9) Unit 4: Pine Beach, Baldwin 420401.42, 3344342.27; 419587.07, 420188.36, 3344633.45; 420150.49,
County, Alabama. 3344320.96; 419589.44, 3344384.88; 3344633.45; 420046.32, 3344728.14;
(i) General Description: Unit 4 419658.09, 3344384.88; 419655.72, 420098.40, 3344728.14; 420098.40,
consists of 30 ac (12 ha) on 27 3344503.25; 419636.78, 3344503.25; 3344635.81; 420046.32, 3344635.81;
inholdings within the Perdue Unit of 419639.15, 3344534.02; 419783.19, 420046.32, 3344567.16; 420058.16,
the Bon Secour National Wildlife Refuge 3344531.65; 419783.55, 3344384.88; 3344567.16; 420058.16, 3344545.86;
as depicted on Map 5 in paragraph 419803.49, 3344384.88; 421930.69, 420003.71, 3344545.86; 420003.71,
(9)(iii) of this entry and in the 3344448.80; 421895.18, 3344446.43; 3344638.18; 419906.65, 3344638.18;
coordinates in paragraph (9)(ii) of this 419927.96, 3344638.18; 419927.96,
422030.12, 3344465.37; 419842.74,
entry. 3344545.86; 419906.65, 3344548.22;
(ii) Coordinates: From the Pine Beach 3344635.81; 419797.76, 3344640.55;
419688.86, 3344841.77; 419740.94, 419690.90, 3344778.02; 419740.44,
USGS 1:24,000 quadrangle map,
3344841.77; 419688.86, 3344645.28; 3344772.85; 419801.19, 3344677.57;
Alabama, land bounded by the
following UTM 16 NAD 83 coordinates 419743.31, 3344642.92; 419740.94, 419842.01, 3344675.40; 421902.16,
(E, N), except those areas covered by 3344593.20; 419688.86, 3344595.57; 3344854.73; 421932.71, 3344858.24;
incidental take permits shown on the 420294.50, 3345060.66; 420306.84, 421999.30, 3344843.90; 422029.66,
map in paragraph (9)(iii) of this entry: 3345060.44; 420306.62, 3345022.12; 3344830.25; 421996.44, 3344462.00
419890.08, 3344529.29; 419946.90, 420294.28, 3345022.34; 420148.12, (iii) Note: Map of Unit 4, Pine Beach
3344389.62; 420406.15, 3344394.35; 3344725.77; 420190.73, 3344725.77; (Map 5), follows:
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(10) Unit 5: Gulf State Park, Baldwin of this entry and in the coordinates in 436349.50, 3346599.55; 435377.85,
County, Alabama. paragraph (10)(ii) of this entry. 3346548.11; 435160.66, 3346490.95;
(i) General Description: Unit 5 (ii) Coordinates: From the Gulf Shores 435166.37, 3346736.72; 435606.47,
consists of 192 ac (78 ha) in Gulf State USGS 1:24,000 quadrangle map, 3346856.75; 436572.41, 3346828.17;
Park east of the City of Gulf Shores in Alabama, land bounded by the 36572.41, 3346913.91; 436881.06,
following UTM 16 NAD 83 coordinates 3347033.94; 436909.64, 3347068.23;
Baldwin County, Alabama. This unit
(E, N), except those areas identified as 437612.66, 3347325.43; 437818.42,
encompasses essential features of
developable in the current incidental 3347319.72; 437829.85, 3347251.13;
Alabama beach mouse habitat north of take permit for the Alabama Department 438035.61, 3347308.29; 438041.33,
the mean high water line (MHWL) to the of Conservation and Natural Resources: 3347394.02; 435699.17, 3346883.42;
seaward extent of either coastal 438247.09, 3347462.61; 438384.26, 435754.39, 3346634.94; 435940.75,
wetlands, maritime forest, or Alabama 3347485.47; 438504.29, 3347456.89; 3346652.19; 436154.72, 3346638.39;
beach mouse habitat managed under the 438738.63, 3347479.75; 438738.63, 436368.69, 3346683.25; 436368.69,
2004 Gulf State Park habitat 3347411.17; 438681.48, 3347405.45; 3346790.24
conservation plan. Exact boundaries are 438675.76, 3347193.97; 437681.24, (iii) Note: Map of Unit 5, Gulf State
depicted on Map 6 in paragraph (10)(iii) 3346988.21; 436938.21, 3346702.43; Park (Map 6), follows:
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* * * * * Dated: January 12, 2007.


Todd Willens,
Acting Assistant Secretary for Fish and
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Wildlife and Parks.


[FR Doc. 07–270 Filed 1–29–07; 8:45 am]
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