5516 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU46 

Endangered and Threatened Wildlife 

and Plants; Critical Habitat for the 

Alabama Beach Mouse 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

revise critical habitat for the endangered 

Alabama beach mouse (Peromyscus 

polionotus ammobates) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

1,298 acres (ac) (525 hectares (ha)) fall 

within the boundaries of the proposed 

critical habitat designation. The 

proposed critical habitat is located in 

Baldwin County, Alabama. 

DATES: We will accept comments from 

all interested parties until April 3, 2006. 

We must receive requests for public 

hearings, in writing, at the address 

shown in the ADDRESSES section by 

March 20, 2006. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of the following methods: 

1. You may submit written comments 

and information to the Acting Field 

Supervisor, U.S. Fish and Wildlife 

Service, Daphne Fish and Wildlife 

Office, 1208–B Main Street, Daphne, AL 

36526. 

2. You may hand-deliver written 

comments to our office, at the above 

address. 

3. You may send comments by 

electronic mail (e-mail) to 

Abmcriticalhabitat@fws.gov. Please see 

‘‘Public Comments Solicited’’ under 

SUPPLEMENTARY INFORMATION for file 

format and other information about 

electronic filing. 

4. You may fax your comments to 

251–441–6222. 

5. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Daphne Fish and Wildlife 

Office at the above address. 

FOR FURTHER INFORMATION CONTACT: 

Acting Field Supervisor, U.S. Fish and 

Wildlife Service, 1208–B Main Street, 

Daphne, AL 36526 (telephone 251–441– 

5181, facsimile 251–441–6222) or visit 

our Web site at http://www.fws.gov/ 

daphne/. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

Because we want any final action 

resulting from this proposal to be as 

accurate and as effective as possible, we 

ask for comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether the benefit of designation will 

outweigh any threats to the species 

caused by designation; 

(2) Specific information on the 

amount and distribution of Alabama 

beach mouse (ABM) habitat, including 

areas occupied by the ABM at the time 

of listing and containing the features 

essential to the conservation of the 

species, and areas not occupied at the 

time of listing that are essential to the 

conservation of the species; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; 

(5) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments; and 

(6) Information regarding the benefits 

of exclusion or inclusion of the 337 

acres (136 ha) within the proposed 

critical habitat revision that are owned 

by the State near the Fort Morgan 

Historic Site in Unit 1, but that are 

managed by the Service through a 

cooperative management agreement 

with the Alabama Historical 

Commission. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit Internet 

comments to 

abmcriticalhabitat@fws.gov in ASCII file 

format and avoid the use of special 

characters or any form of encryption. 

Please also include ‘‘Attn: critical 

habitat [AU46]’’ in your e-mail subject 

header and your name and return 

address in the body of your message. If 

you do not receive a confirmation from 

the system that we have received your 

Internet message, contact us directly by 

calling our Daphne Fish and Wildlife 

Office at phone number 251–441–5181. 

Please note that the Internet address 

abmcriticalhabitat@fws.gov will be 

closed out at the termination of the 

public comment period. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comment. However, we will not 

consider anonymous comments. We 

will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 


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specific actions to restore or improve 

habitat. 

Currently, only 470 species, or 37 

percent of the 1,264 listed species in the 

U.S. under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,264 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004). In that case, the Ninth 

Circuit invalidated the Service’s 

regulation defining ‘‘destruction or 

adverse modification of critical habitat.’’

In response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas in this final designation. 

Rather, it relies on the guidance issued 

by the Director in response to the 

Gifford Pinchot decision (see ‘‘Adverse 

Modification Standard’’ discussion 

below). The Service will carefully 

manage future consultations that 

analyze impacts to designated critical 

habitat, particularly those that appear to 

be resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4371 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

We intend to discuss only those 

topics directly relevant to the critical 

habitat revision in this proposed rule. 

For more information on the Alabama 

beach mouse, refer to the final listing 

rule published in the Federal Register 

on June 6, 1985 (50 FR 23872). 

The Alabama beach mouse (ABM) is 

one of five subspecies of the oldfield 

mouse that inhabit coastal dune 

communities along the northern coast of 

the Gulf of Mexico. It is a nocturnal 

rodent that burrows in primary, 

secondary, and scrub dunes, and feeds 

on a variety of dune plants and insects 

(Rave and Holler 1992; Moyers 1996; 

Sneckenberger 2001). 

The ABM was historically restricted 

to approximately 33.5 miles of coastline 

in Baldwin County, Alabama, including 

the Fort Morgan Peninsula, Gulf Shores 

and Orange Beach, and Ono Island (50 

FR 23872; Holliman 1983; Meyers 1983; 

Holler and Rave 1991). At the time of 

listing, the ABM was thought to occupy 

10.6 miles of this historic range (50 FR 

23872), based on reports by Holliman 

(1983), who concluded that ABM were 

found only on 333 acres of habitat and 

had been extirpated from Ono Island, 

and contemporaneous research by 

Meyers (1983) and Dawson (1983). 

Approximately 1,034 acres, divided into 

three distinct zones that collectively 

represented the known range of the 

subspecies, were designated as critical 

habitat at the time of listing (50 FR 

23872). This original critical habitat 

designation consisted almost entirely of 

primary and secondary dunes. Primary 

constituent elements (PCEs) were 

defined as dunes and interdunal areas, 

and associated grasses and shrubs that 

provide food and cover (50 FR 23872). 

Presently, we estimate that 

approximately 2,600 acres of ABM 

habitat exist throughout the historic 

range (Service 2003). 

Coastal dune habitat along the 

Baldwin County, Alabama, coastline is 

generally categorized as primary dunes, 

secondary dunes, interdunal swales, 

and scrub dunes. Primary dunes consist 

of a continuous line of dunes 

immediately landward of the wet beach 

characterized by sea oats (Uniola 

paniculata) and other grasses such as 

bluestem (Schizachyrium maritimum) 

and seaside panicum (Panicum 

amarum). Secondary dunes are more 

sparsely vegetated rows of smaller sand 

dunes found landward of primary 

dunes, often containing such plants as 

woody goldenrod (Chrysoma 


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pauciflosculosa) and false rosemary 

(Conradina canescens) in addition to 

primary dune plants described above. 

Interdunal swales and seasonal 

wetlands are sometimes associated with 

secondary dune systems. These areas 

are generally bare sand, but may contain 

low spots with large-headed nutgrass 

(Juncus megacephalus) and yellow 

nutgrass (Cyperus esculentus). Scrub 

dunes, located landward of the 

secondary dunes, are higher-elevation 

interior habitats that are often 

dominated by scrub oaks (Quercus spp.) 

and yaupon holly (Ilex vomitoria). The 

highest scrub habitat, called 

escarpment, often reaches elevations of 

30 feet (9 meters) or more (Baldwin 

County 2004) above sea level, and 

occurs along an east-west line 

throughout the middle part of the Fort 

Morgan Peninsula. The transition from 

scrub habitat to maritime forest, which 

is characterized by large trees (pines and 

oaks), thick leaf litter, and dense 

understory vegetation, frequently serves 

to delineate the landward extent of 

suitable beach mouse habitat. 

Since the ABM was listed, continued 

research has refined previous 

knowledge of its habitat requirements, 

as well as factors influencing its use of 

habitat. The findings most pertinent to 

this revision of critical habitat involve 

the role of scrub dune habitat in the 

population biology of the subspecies. 

Contrary to the early belief that beach 

mice were restricted to (Howell 1909; 

1921; Ivey 1949), or preferred, the 

frontal dunes (Blair 1951; Pournelle and 

Barrington 1953; Bowen 1968), more 

recent research has shown that scrub 

habitat serves an invaluable role in the 

persistence of ABM populations 

(Swilling et al. 1998; Sneckenberger 

2001). ABM occupy scrub habitat on a 

permanent basis and, studies have 

found no detectable differences between 

scrub and frontal dunes in beach mouse 

body mass, home range size, dispersal, 

reproduction, survival, food quality, and 

burrow site availability (Swilling et al. 

1998; Swilling 2000; Sneckenberger 

2001). While seasonally abundant, the 

availability of food resources in the 

primary and secondary dunes fluctuates 

(Sneckenberger 2001). In contrast, the 

scrub habitat provides a more stable 

level of food resources. This becomes 

crucial when food is scarce or 

nonexistent in the primary and 

secondary dunes and suggests that 

access to scrub dune habitat, in addition 

to primary and secondary dune habitat, 

is essential to ABM. 

In addition to providing burrow sites, 

food resources, and cover, scrub dune 

habitat also serves as a high-elevation 

refuge during storm events and as a 

population source as the frontal and 

secondary dunes recover (Swilling et al. 

1998; Sneckenberger 2001). Hurricanes 

can severely affect ABM, as tidal surge 

and wave action overwash habitat, 

leaving a flat sand surface denuded of 

vegetation and shearing or eroding 

primary dunes and occasionally forming 

new channels between the Gulf of 

Mexico and bays and lagoons, creating 

barriers to beach mouse migration 

(Johnson 1997; Swilling et al. 1998; 

Service 2004a). Sand is also deposited 

inland, completely or partially covering 

vegetation (Johnson 1997; Swilling et al. 

1998; Service 2004a). Until frontal dune 

topography and vegetation redevelop, 

scrub habitat maintains beach mice 

populations and has the majority of food 

resources and potential burrow sites 

(Lynn 2000; Sneckenberger 2001). While 

storms temporarily reduce population 

densities (often severely) and impact 

dune habitat, this disturbance regime 

maintains open habitat and retards 

woody plant succession, yielding a 

habitat more suitable for beach mice 

than one lacking disturbance. 

The low-nutrient soil of the coastal 

dune ecosystem receives a pulse of 

nutrients from the deposition of 

vegetative debris along the coastline 

(Lomascolo and Aide 2001). Therefore, 

as the primary and secondary dunes 

recover, and food plants develop to take 

advantage of the newly available 

nutrients, beach mice readily recolonize 

this habitat. Habitat recovery times vary 

depending upon factors such as 

hurricane characteristics (i.e., severity, 

amount of associated rain, position of 

habitat relative to storm eye, storm 

speed), successional stage of habitat 

prior to hurricane, and habitat elevation, 

impact to habitat from hurricane cleanup efforts, amount of precipitation, and 

restorative actions post hurricane. 

Depending on these factors, recovery of 

habitat may take from 1 year to over 40 

years (Johnson 1997; Boyd et al. 2003; 

Traylor-Holzer et al. 2005). 

Local extinctions (and subsequent 

recolonizations) within fragmented 

populations are common events (Fahrig 

and Merriam 1992; Stacey and Taper 

1992). Habitat fragmentation, identified 

in the original listing rule as a threat to 

ABM, continues to be the major threat 

to ABM conservation, especially when 

combined with the effects of hurricanes. 

ABM habitat has been fragmented by 

human development. Historically, 

habitats in lower elevations, where 

ABM were extirpated from hurricaneinduced storm surge, were recolonized 

as population densities increase and 

dispersal occurs from adjacent 

populated areas. Despite local 

extirpations due to storm events or the 

harsh, stochastic nature of coastal 

ecosystems, beach mouse populations 

and genetic integrity (Wooten 1994) 

would naturally recover and persist 

provided that sufficient habitat was 

available for population expansion 

following ‘‘bottleneck’’ events. 

Functional pathways between scrub 

habitat and lower-elevation dunes more 

severely impacted by storm events, 

allowing for dispersal, foraging, and 

mate finding behavior, are therefore 

essential to the conservation of the 

species. 

Much of the original 33.5 miles of 

ABM habitat has been fragmented due 

to roads, buildings, parking lots, walls, 

bulkheads, and non-native landscaping, 

and functional beach mouse pathways 

between high-elevation scrub and 

frontal dunes are increasingly scarce. 

Rangewide (east-west) habitat 

continuity has likewise suffered as a 

result of human development activities. 

Because one hurricane could easily 

impact the entire range of the ABM, the 

conservation of remaining east-west and 

north-south habitat connections 

throughout the range of the ABM, 

allowing the naturally occurring cycle of 

local extirpations and subsequent 

recolonizations to continue, is of 

paramount conservation importance. 

Previous Federal Actions 

For more information on previous 

Federal actions concerning the ABM, 

refer to the final listing rule published 

in the Federal Register on June 6, 1985 

(50 FR 23872), or our 12-month petition 

finding published in the Federal 

Register on September 26, 2000 (65 FR 

57800), in which we announced that 

revision of critical habitat for the 

Alabama, Choctawhatchee, and Perdido 

Key beach mice was warranted. 

Until now, work on the revision of 

critical habitat for the Alabama beach 

mouse and the other two beach mouse 

subspecies has been precluded due to 

other, higher priority listing and critical 

habitat actions. On June 17, 2003, a 

lawsuit was filed in the U.S. District 

Court for the Southern District of 

Alabama (The Sierra Club and the 

Center for Biological Diversity v. Norton: 

1:03–CV–00377–CB), alleging that we 

violated the Act by failing to revise 

critical habitat, and that the revision 

was withheld or unreasonably delayed 

under the Administrative Procedure Act 

(5 U.S.C. 551 et seq.). In a December 

2004 declaration filed with the Court, 

we stated that we would submit to the 

Federal Register a proposed rule 

revising ABM critical habitat by January 

18, 2006, and a final rule by January 15, 

2007. A proposed rule revising critical 

habitat for the Choctawhatchee and 


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Perdido Key beach mice was published 

in the Federal Register on December 15, 

2005 (70 FR 74426). 

We briefed the ABM recovery team on 

our general plans to revise critical 

habitat for the ABM on May 16, 2005. 

On November 9, 2005, we briefed State 

and Federal agencies on the critical 

habitat process and our 2004 declaration 

and on November 10, 2005, we held a 

critical habitat informational meeting 

for the general public at the City of Gulf 

Shores auditorium in Gulf Shores, 

Alabama, to discuss the critical habitat 

process. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation’’ means the use 

of all methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time of 

listing must first have features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known and using 

the best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (i.e., areas on which 

are found the primary constituent 

elements (PCEs), as defined at 50 CFR 

424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2).) Accordingly, when 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species so require, we will not 

designate critical habitat in areas 

outside the geographic area occupied by 

the species at the time of listing. An area 

that is currently occupied by the species 

but was not known to be occupied at the 

time of listing will likely be essential to 

the conservation of the species and, 

therefore, included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing rule 

for the species. Additional information 

sources include the recovery plan for 

the species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. All information is 

used in accordance with the provisions 

of Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining areas that 

contain the physical and biological 

features essential to the conservation of 

the subspecies (see Primary Constituent 

Elements section). We have reviewed 

the overall approach to conservation of 

the subspecies undertaken by the local, 

State, and Federal agencies operating 

within the species’ range since its 

listing, the original ABM recovery plan 

(Service 1987). 

In our development of the primary 

constituent elements (PCEs) and criteria 

for determining critical habitat (see 

Criteria section), we reviewed the 

available information pertaining to the 

historic and current distributions, life 

histories, habitats of, and threats to 

beach mice in general, and where 

possible, to the ABM in particular. We 

have also reviewed available 

information that pertains to the 

population biology and habitat 

requirements of the ABM or closely 

related subspecies, including data in 

reports submitted during section 7 

consultations, and as a requirement 

from section 10(a)(1)(B) incidental take 

permits or section 10(a)(1)(A) recovery 

permits; hurricane-induced storm surge 

inundation estimates from field data 

and models, research published in peerreviewed articles and presented in 

academic theses and agency reports; 

Geographic Information System (GIS) 

coverages; and the ABM habitat map 

produced by Service in 2003. We have 

also reviewed our own site-specific 


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subspecies and habitat information, 

trapping data, recent biological surveys, 

and reports and communication with 

other qualified biologists or experts. 

We began our analysis by considering 

the historic habitat available to the 

subspecies. Early accounts of the ABM 

and the 1985 listing document indicate 

that the natural historic range of the 

species stretched from the tip of the Fort 

Morgan Peninsula (presently Fort 

Morgan State Historic Site) eastward to 

Perdido Pass in Baldwin County, 

Alabama (Howell 1909; Bowen 1968; 50 

FR 23872; Holler and Rave 1991). The 

north-south extent of this historic range 

is uncertain. Early research and 

collection efforts focused on frontal 

dunes and, therefore, we were unaware 

of the extent of scrub habitat usage by 

the subspecies until recent studies 

became available. We now understand 

beach mice in higher-elevation habitat 

tend to survive hurricanes, and highelevation scrub habitat serves as a refuge 

from storms for mice in frontal dunes 

(Swilling et al. 1998; Sneckenberger 

2001; Service 2004a). It is reasonable to 

assume that ABM, which evolved in a 

dynamic coastal environment driven in 

part by hurricane activity, have always 

utilized high-elevation scrub habitats for 

survival during and after major storm 

events. 

We next employed five steps to 

identify our proposed critical habitat 

units. We first considered our 2003 

ABM habitat map, which is based on the 

best available trapping and habitat data, 

and utilized in permitting decisions, 

interagency consultation, and research 

studies involving the subspecies. This 

map contains all of those areas that were 

occupied at the time of listing and that 

have been found to be occupied since 

listing, that are still available to the 

ABM. Secondly, at those sites, we 

identified, in accordance with section 

3(5)(A)(i) of the Act and regulations at 

50 CFR 424.12, the physical and 

biological habitat features (also called 

primary constituent elements, or PCEs) 

(see PCE section) that are essential to 

the conservation of the species. We then 

determined the subset of the habitat 

identified in the ABM habitat map that 

contains those PCEs. These areas were 

then mapped using ArcMap 9, a GIS 

program developed by the 

Environmental Systems Research 

Institute, Inc. Our mapping process was 

based on the need to exclude areas that 

lack PCEs, while simultaneously 

accounting for the dynamic nature of 

coastal habitat. We mapped critical 

habitat units at each site based on the 

extent of habitat containing sufficient 

PCEs necessary to support biological 

functions of the ABM. We depicted the 

mapped shoreline according to the 

mean high water line (MHWL), although 

the land configurations of these coastal 

areas change dramatically through time. 

Landward boundaries of the units, 

which frequently consist of urban areas 

or maritime forest, are more stable and 

provide easily discernable landmarks 

when visiting a proposed critical habitat 

unit. In the fifth and final step, we 

identified any of the mapped areas that 

do not meet the definition of critical 

habitat under section 3(5)(A) of the Act, 

and units that may be excluded based 

on section 4(b)(2) of the Act (see the 

Application of Sections 3(5)(A) and 

4(a)(3) and Exclusions Under Section 

4(b)(2) of the Act, below, for a detailed 

description). 

Many areas within the broad historic 

range of the subspecies, once occupied 

by ABM, are no longer capable of 

supporting them because of conversion 

for human use or isolation due to 

human development patterns 

(Endangered Species Consulting 

Services 2002; Service 2003). Developed 

areas, including beachfront 

condominium complexes within the 

cities of Gulf Shores and Orange Beach, 

the entire length of Ono Island, and the 

footprints of existing developments 

throughout the Fort Morgan Peninsula, 

were eliminated from consideration for 

critical habitat. 

We eliminated from consideration 

those areas that have been impacted by 

development by consulting our 2003 

ABM habitat map (Service 2003), GIS 

coverages, and additional trapping data. 

While the quality of habitat ebbs and 

flows in response to impacts and 

hurricanes and tropical storms, the 2003 

map, combined with trapping 

information and observations since 

2003, represents our best estimate of 

habitat occupied by the ABM at the time 

of listing, and from the time of listing 

until present. The 2003 map includes all 

areas, according to trapping conducted 

or funded by both the Service and 

section 10(A)(1)(a) recovery permit 

holders, presently occupied by the 

ABM. Through a careful analysis of 

habitat continuity, trapping data, and 

anthropogenic impacts, we determined 

which subset of this current habitat 

contains the PCEs (see Primary 

Constituent Elements section). This 

resulted in 2,360 ac (955 ha) of occupied 

habitat with features that we found to be 

essential to the conservation of the 

subspecies. For comparison, this 

includes almost all critical habitat 

originally designated at the time of 

listing, as well as scrub habitat now 

known to contain features that are 

essential to the ABM. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, we are required to base critical 

habitat determinations on the best 

scientific data available and to consider 

within areas occupied by the species at 

the time of listing those physical and 

biological features that are essential to 

the conservation of the species (PCEs), 

and that may require special 

management considerations or 

protection. These include, but are not 

limited to: Space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific PCEs essential for the 

ABM are derived from its biological 

needs as described in the Background 

section of this proposal, and are set 

forth in additional detail provided 

below. 

Space for Individual and Population 

Growth and Normal Behavior 

Long-term trapping data have shown 

that ABM densities are cyclic and 

fluctuate by magnitudes on a seasonal 

and annual basis (Swilling et al. 1998; 

Sneckenberger 2001; Rave and Holler 

1992). These fluctuations can be a result 

of reproduction rates, food availability, 

habitat quality and quantity, 

catastrophic events, disease, and 

predation (Blair 1951; Bowen 1968; 

Smith 1971; Hill 1989; Rave and Holler 

1992; Swilling et al. 1998; Swilling 

2000; Sneckenberger 2001). Without 

suitable habitat sufficient in size to 

support the natural cyclic nature of 

beach mouse populations, subspecies 

are at risk from local extirpation and 

extinction, and may not attain the 

densities necessary to persist through 

storm events and seasonal fluctuations 

of resources. The conservation of 

multiple large, contiguous tracts of 

habitat is a key to the persistence of 

beach mice. 

A variety of habitat types is needed to 

conserve ABM populations due to the 

dynamic nature of the coastal 

environment. Large, contiguous habitat 

areas that contain an intact continuum 

of habitat from the primary dunes 

landward to high-elevation scrub dunes 

are perhaps the most important to the 

persistence of the ABM. Contiguous 

habitat allows for natural behavior such 

as dispersal and exploratory 


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movements, as well as gene flow to 

maintain genetic variability of the 

population. 

However, very few tracts with this 

structure currently exist. Because much 

of occupied ABM habitat has been 

fragmented by human development and 

is, therefore, neither large in size nor 

contiguous, the maintenance of multiple 

populations and habitat connectivity 

(see discussion below) is crucial. Local 

extinctions (and subsequent 

recolonizations) within fragmented 

populations are common events (Fahrig 

and Merriam 1992; Stacey and Taper 

1992). Species that are protected across 

their ranges have lower probabilities of 

extinction (Soule ́ and Wilcox 1980). The 

ABM is a narrowly endemic subspecies 

restricted to less than 34 miles (54 km) 

of coastline, and one major hurricane 

could easily affect the entire population. 

Impacts within individual hurricanes, 

however, can vary greatly in intensity, 

and wide fluctuations in storm surge 

and associated wave damage are 

possible depending on bathymetry 

(water depths), beach configuration, and 

variations in wind speed and waves 

within the storm. Protecting multiple 

populations that represent the natural 

range of the subspecies, therefore, 

would likely increase the chance that at 

least one population within the range of 

a subspecies will survive episodic storm 

events and persist while vegetation and 

dune structure recover. This theory has 

been supported by population viability 

models conducted on the subspecies 

(Oli et al. 2001; Traylor-Holzer 2005a, 

2005b) and careful study of the closely 

related Perdido Key beach mouse 

(where a now potentially extirpated 

population was the source of the two 

remaining populations of the subspecies 

(Holler et al. 1989; Service 2004b)). 

While maintaining multiple 

populations throughout the geographic 

range of each beach mouse subspecies 

provides protection from extinction (Oli 

et al. 2001), conservation of a subspecies 

necessitates protection of genetic 

variability throughout its range (Ehrlich 

1988). Conservation of a species over a 

range of habitat types where it is known 

to occur reduces the chance of losing 

disjunct populations, which represent 

important conservation value for their 

adaptation to local environmental 

conditions and their genetic uniqueness 

(Fahrig and Merriam 1994). This 

includes ‘‘peripheral’’ populations 

(populations on the fringes of the 

natural range of the species/subspecies), 

which in many cases are thought to be 

highly desirable because of their distinct 

genetic characters or adaptations due to 

divergent natural selection (Lesica and 

Allendorf 1995). Preservation of natural 

populations throughout the range of 

each subspecies is therefore crucial, as 

the loss of a population of beach mice 

can result in a permanent loss of alleles 

(genes) (Wooten 1999). This genetic 

variability, once lost, cannot be regained 

through translocations or other efforts. 

Protection From Hurricanes 

Hurricanes and tropical storms are a 

frequent occurrence along the Alabama 

coastline. Between 1899 and 2004, 15 

storms of Category 1 or greater on the 

Saffir-Simpson Hurricane Scale have 

directly impacted ABM habitat (NOAA 

1999; Service 2004a, 2005a). Hurricanes 

can impact beach mice either directly 

(e.g., drowning) or indirectly (e.g., loss 

of habitat). When Hurricane Ivan, a 

strong Category 3 hurricane, made 

landfall in Gulf Shores on September 

16, 2004, it adversely impacted an 

estimated 90 to 95 percent of primary 

and secondary dune habitat throughout 

the range of the ABM (Service 2004a). 

A review of trapping data from various 

locations following Ivan indicated that 

mice may have been extirpated from 

these low-lying areas (Service 2004a). 

However, higher-elevation scrub habitat, 

while receiving damage from salt spray 

and wind (Boyd et al. 2003; Service 

2004a), is often not inundated by 

hurricane-induced storm surge and 

associated battering waves. This has 

been observed both in recent storms 

(including Hurricanes Ivan and Katrina 

(2005)) and hurricane model runs (U.S. 

Army Corps of Engineers (ACOE) 2001; 

Service 2004a, 2004c, 2005a; ENSR 

Corporation (ENSR) 2004). 

Following Hurricane Opal of 1995, 

Swilling et al. (1998) reported higher 

ABM densities in the scrub than the 

foredunes nearly one year after the 

storm. As vegetation began to recover, 

however, the primary and secondary 

dunes were reoccupied by ABM and 

population densities surpassed those in 

the scrub in the fall and winter 

following the storm. Similar movement 

and habitat occupation patterns were 

observed following Hurricane Georges 

in 1998. Therefore, while ABM numbers 

and habitat quality in the frontal dunes 

ebb and flow in response to tropical 

storms, the higher-elevation scrub 

habitat is important to mouse 

conservation as a more stable 

environment during and after storm 

events. 

According to our review of estimated 

flood levels from hurricanes using the 

National Hurricane Center’s Sea, Lake 

and Overland Surge from Hurricanes 

(SLOSH) model (ACOE 2001), and ABM 

habitat maps (Service 2003), we 

estimate that between 827 and 620 acres 

(335 and 251 hectares) of ABM habitat 

would not be inundated during a 

Category 3 to 5 storm. A recent estimate 

of the 100-year flood (flood event that 

has a 1 percent chance of occurrence 

each year) due to hurricane activity 

concluded that 895 acres (362 hectares) 

of ABM habitat would not be inundated 

(ENSR 2004). In our review of beach 

mouse habitat following the direct hit 

from Hurricane Ivan, we determined 

(through the review of aerial 

photography taken before and after the 

storm and delineation of the surge 

debris line with global positioning 

systems) that approximately 1,400 ac 

(567 ha) were not directly impacted by 

storm surge. Much of this area was 

however, moderately impacted (such as 

wind damage to vegetation, salt spray 

burning of vegetation) (Service 2004a). 

Following Hurricane Ivan, mice were 

trapped almost exclusively in scrub 

habitat that was not inundated by storm 

surge, or in immediately adjacent areas 

(Service 2004a; Service 2005a; Volkert 

2005; Endangered Species Consulting 

Services 2004d). Thus, high-elevation 

habitat not inundated by hurricanes is 

essential to the conservation of the 

species. 

Habitat Connectivity 

Habitat loss and fragmentation 

associated with residential and 

commercial real estate development is 

the primary threat contributing to the 

endangered status of beach mice (Holler 

1992; Humphrey 1992). Holliman (1983) 

estimated that 62 percent of all beach 

mouse habitat in Alabama had been lost 

to development between 1921 and 1983. 

More recent studies (Douglass et al. 

1999; South Alabama Regional Planning 

Commission 2001) document continued 

growth. Coastal development has 

fragmented beach mouse habitat and 

created disjunct populations (for 

example, population at Gulf State Park). 

Isolation of habitats by imposing 

barriers to species movement is an effect 

of fragmentation that equates to 

reduction in total habitat (Noss and 

Csuti 1997). Furthermore, the isolation 

of small populations of beach mice 

reduces or precludes gene flow between 

populations and can result in the loss of 

genetic diversity (Mech and Hallett 

2001). Selander et al. (1971) found that 

allozyme variation in beach mouse 

populations (Perdido Key beach mice, 

Choctawhatchee beach mice, and ABM) 

was significantly lower than the 

variation detected in adjacent inland 

populations. Correlations between 

genetic variation (heterozygosity) and 

other factors have been well-researched 

with oldfield mice. Lower levels of 

heterozygosity have been linked to less 

efficient feeding, fewer demonstrations 


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of social dominance and exploratory 

behavior, and smaller body size (Smith 

et al. 1975, Garten 1976, Teska et al. 

1990). Research focused on inbreeding 

depression in oldfield mice (including 

one beach mouse subspecies) 

determined that the effects of inbreeding 

negatively influenced factors such as 

litter size, number of litters, and 

juvenile survivorship (Lacy et al. 1995). 

Demographic factors such as predation 

(especially by domestic cats), diseases, 

and competition with house mice are 

intensified in small, isolated 

populations, which may be rapidly 

extirpated by these pressures. Especially 

when coupled with events such as 

storms, reduced food availability, and/ 

or reduced reproductive success, 

isolated populations may experience 

severe declines or extirpation (Caughley 

and Gunn 1996). The strength of 

influence these factors have on 

populations or individuals is largely 

dependent on the degree of isolation. 

Connectivity becomes essential where 

mice occupy fragmented areas lacking 

one or more habitat types. If scrub 

habitat is lacking from a particular tract, 

adjacent or connected tracts with scrub 

habitat are necessary for food and 

burrow sites when resources are scarce 

in the frontal dunes, and are essential to 

beach mouse populations during and 

immediately after hurricanes. Trapping 

data suggest that beach mice occupying 

the scrub (following hurricanes) 

recolonize the frontal dunes once 

vegetation and some dune structure 

have recovered (Swilling et al. 1998; 

Sneckenberger 2001). Similarly, when 

frontal dune habitat is lacking from a 

tract and a functional pathway from 

scrub habitat to frontal dune habitat 

does not exist, beach mice may not be 

able to obtain the resources necessary to 

expand the population and reach the 

densities necessary to persist through 

the harsh summer season or the next 

storm. General research supports the 

effectiveness of biological corridors 

(Beier and Noss 1998) and recent 

population viability analysis work 

suggests the importance of functional 

pathways for ABM (Traylor-Holzer 

2005). These functional pathways may 

allow for natural behavior such as 

dispersal and exploratory movements, 

as well as gene flow to maintain genetic 

variability of the population within 

fragmented or isolated areas. To that 

end, contiguous tracts or functionally 

connected patches of suitable habitat 

provide connectivity that is essential to 

the long-term conservation of beach 

mice. 

Food Resources and Vegetative Cover 

ABM feed primarily upon seeds and 

fruits but have been shown to prey on 

insects. They appear to forage on food 

items based on availability and have 

shown no preferences for particular 

seeds or fruits (Moyers 1996). Research 

suggests that the availability of food 

resources fluctuates seasonally in Gulf 

Coast coastal dune habitat, specifically 

that food resources may be limited 

during winter and spring in the scrub 

habitat and limited in the frontal dunes 

in the summer and fall (Sneckenberger 

2001). Nutritional analysis of foods 

available in each habitat revealed that 

seeds of plant species in both habitats 

provide a similar range of nutritional 

quality. The frontal dunes appear to 

have more species of high-quality foods, 

but these sources are primarily grasses 

and annuals that produce large 

quantities of small seeds in a short 

period of time. Foods available in the 

scrub consist of larger seeds and fruits 

that are produced throughout a greater 

length of time and linger in the 

landscape. Consequently, large, 

contiguous tracts containing both frontal 

dune and scrub habitat types are 

necessary to provide both: (1) a large 

quantity of food resources coinciding 

with the reproductive season, and (2) a 

relatively stable source of food resources 

when availability is reduced. 

Foraging activities and other natural 

behaviors of ABM are influenced by 

many factors. Artificial lighting alters 

behavior patterns, causing beach mice to 

avoid otherwise suitable habitat and 

decreases the amount of time they are 

active (Bird et al. 2004). The presence of 

vegetative cover reduces predation risk 

and perceived predation risk of foraging 

beach mice, and allows for normal 

movements, activity, and foraging 

patterns. Foraging in sites with 

vegetative cover is greater and more 

efficient than in sites without cover 

(Bird 2002). Beach mice have also been 

found to select habitat for increased 

percent cover of vegetation, and 

decreased distance between vegetated 

patches (Smith 2003). Behavioral 

modification or increased predation in 

response to these factors can result in 

population decreases and restricted use 

of available habitat. 

Burrow Sites 

ABM use burrows to avoid predators, 

protect young, store food, and take 

refuge between foraging bouts and 

during periods of rest and have been 

shown to select burrow sites based on 

a suite of abiotic and biotic factors. A 

limitation in one or more factors may 

result in a shortage of suitable sites and 

the availability of potential burrow sites 

in each habitat may vary seasonally. 

ABM tend to construct burrows in areas 

with greater plant cover, less soil 

compaction, steep slopes, and higher 

elevations above sea level (Lynn 2000; 

Sneckenberger 2001). Burrows are 

typically constructed in Coastal beach 

or St. Lucie sands (Soil Conservation 

Service 1964) free of obstructions or 

debris. These factors are likely 

important in minimizing energy costs of 

burrow construction and maintenance 

while maximizing the benefits of 

burrow use by making a safe and 

physiologically efficient refuge. Similar 

to food resources, this fluctuation in 

availability of burrow sites suggests that 

a combination of primary, secondary, 

and scrub dune habitat is essential to 

beach mice at the individual level. 

Habitats Protected From Anthropogenic 

Disturbance 

Artificial lighting, non-native species, 

and refuse can directly and indirectly 

increase predation pressure on beach 

mice beyond their natural levels. Freeroaming and feral pets are believed to 

have a devastating effect on beach 

mouse persistence (Bowen 1968; Linzey 

1978) and are considered to be the main 

cause of the loss of at least one 

population of ABM (Holliman 1983). 

Cat tracks have been observed in areas 

of low trapping success for beach mice 

(Moyers et al. 1999). A VORTEX 

population and habitat viability analysis 

for the ABM indicated that if each 

population had as few as one feral cat 

that ate one mouse a day, rapid 

extinction occurred in over 99 percent 

of all iterations (Traylor-Holzer et al. 

2005). Refuse has been shown to attract 

competitors (house mice, Mus 

musculus) and predators (such as 

coyote, Canis latrans; red fox, Vulpes 

vulpes), unsettling the natural predator/ 

prey balance and competing with beach 

mice for resources. This issue is of 

particular importance and has the most 

impact when beach mouse populations 

are at low densities. This influx of 

development-related predators and 

competitors is believed to be the final 

cause of the extinction of the pallid 

beach mouse (Peromyscus polionotus 

decoloratus) (Humphrey 1992). 

Beyond the direct effects of mortality 

due to predation, beach mouse habitat 

use and foraging patterns are influenced 

by these anthropogenic disturbances. 

Artificial lighting, for example, 

increases the risk of predation and 

influences beach mouse foraging 

patterns and natural movements as it 

increases their perceived risk of 

predation. Beach mice avoid areas with 

artificial lighting or reduce the time 


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spent foraging in lighted areas (Bird et 

al. 2004.) Consequently, because of 

these anthropogenic factors, mice may 

be unable to gather necessary food 

resources or fail to utilize otherwise 

suitable habitat. 

Primary Constituent Elements for the 

Alabama Beach Mouse 

PCEs determined for the ABM in 

connection with the original designation 

of critical habitat included dunes and 

interdunal areas, and associated grasses 

and shrubs that provide food and cover 

(50 FR 23872). However, these elements 

did not address many of the 

requirements that we now know are 

crucial for long-term persistence of 

beach mice, including the need for 

scrub dune habitat. Based on our 

current knowledge of the life history, 

biology, and ecology of the species and 

the requirements of the habitat to 

sustain theessential life history 

functions of the species, we have 

determined that the ABM’s PCEs are: 

1. A contiguous mosaic of primary, 

secondary, and scrub vegetation and 

dune structure, with a balanced level of 

competition and predation and few or 

no competitive or predaceous nonnative 

species present, that collectively 

provide foraging opportunities, cover, 

and burrow sites. 

2. Primary and secondary dunes, 

generally dominated by sea oats (Uniola 

paniculata), that despite occasional 

temporary impacts and reconfiguration 

from tropical storms and hurricanes, 

provide abundant food resources, 

burrow sites, and protection from 

predators. 

3. Scrub dunes, generally dominated 

by scrub oaks (Quercus spp.), that 

provide food resources and burrow 

sites, and provide elevated refugia 

during and after intense flooding due to 

rainfall and/or hurricane-induced storm 

surge. 

4. Functional, unobstructed habitat 

connections that facilitate genetic 

exchange, dispersal, natural exploratory 

movements, and recolonization of 

locally extirpated areas. 

5. A natural light regime within the 

coastal dune ecosystem, compatible 

with the nocturnal activity of beach 

mice, necessary for normal behavior, 

growth, and viability of all life stages. 

Criteria Used To Identify Critical 

Habitat 

We are proposing to designate critical 

habitat on lands that were occupied at 

the time of listing and contain sufficient 

PCEs to support life history functions 

essential to the conservation of the 

ABM. In a few instances, we are also 

proposing to designate areas that were 

identified as occupied after listing, but 

that we have determined to be essential 

to the conservation of the ABM. 

An area was considered for 

designation where it possesses one or 

more of the PCEs and at least one of the 

following characteristics: (1) Supports a 

core population of beach mice; (2) was 

occupied by ABM at the time of listing; 

(3) is currently occupied by the beach 

mouse according to Service ABM 

trapping protocol (Service 2005c) and 

has been determined to be essential to 

the conservation of the species. The 

Service has developed a trapping 

protocol for establishing absence of 

beach mice (see ADDRESSES to request a 

copy). To document absence, this 

protocol requires 2 years of quarterly 

trapping with no beach mice captured. 

Presence of beach mice, however, can be 

documented by the capture of one beach 

mouse, or the observation of beach 

mouse tracks or beach mouse burrows 

by a beach mouse expert or similarly 

qualified biologist. 

Following the strategy outlined above, 

we began by mapping coastal dune 

communities within the historic range 

of each subspecies of beach mouse. 

These areas were refined by using aerial 

map coverages to eliminate features 

such as housing developments and 

other areas that are unlikely to 

contribute to the conservation of beach 

mice. We then focused on areas 

supporting beach mice, as well as areas 

that contain the PCEs for the subspecies. 

Because the ABM habitat is dynamic 

and changes in response to coastal 

erosion, we believe that limiting the 

proposed designation to areas occupied 

at the time of listing would not yield 

sufficient habitat for the persistence of 

beach mice. The fragmentation of the 

species’ historic habitat, coupled with 

the dynamic nature of coastal dune 

habitat due to tropical storms, makes 

multiple populations essential for 

species conservation. Consequently, we 

are proposing units that were not 

occupied at the time of listing. These 

areas, however, are currently occupied 

by the species, have one or more of the 

PCEs, are within the historic range of 

the species, and are essential for the 

conservation of the ABM. 

The combined extent of these mapped 

areas defines the habitat that contains 

features that are essential to the 

conservation of the subspecies. 

Although these areas proposed for 

designation represent only a small 

proportion of the subspecies’ historic 

range, they include a significant 

proportion of the remaining intact 

coastal communities and reflect the 

habitat types historically occupied by 

beach mice. Areas not containing the 

PCEs, such as wetlands and maritime 

forests, were not included within the 

proposed designation. Field 

reconnaissance was done in a few areas 

for verification. We eliminated highly 

degraded tracts, and small, isolated, or 

highly fragmented tracts that provide no 

long-term conservation value. The 

remaining areas were identified as 

containing the PCEs and are proposed as 

five critical habitat units for the ABM. 

We reviewed existing ABM 

management and conservation plans to 

determine if any areas identified above 

did not meet the definition of critical 

habitat according to section 3(5)(A) of 

the Act, or could be excluded from the 

revised designation in accordance with 

section 4(b)(2). Portions of the Perdue 

Unit of the Bon Secour National 

Wildlife Refuge (Refuge) are adequately 

protected under the Refuge’s 

Comprehensive Conservation Plan 

(CCP) and do not require special 

management or protection. While these 

areas, which collectively total 1,063 ac 

(430 ha), contain the habitat features 

that are essential to the conservation of 

the subspecies, they are proposed for 

exclusion (see Exclusions section). 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts of the 

requested incidental take. We often 

exclude non-Federal public lands and 

private lands that are covered by an 

existing operative HCP under section 

10(a)(1)(B) of the Act from designated 

critical habitat because the benefits of 

exclusion outweigh the benefits of 

inclusion as discussed in section 4(b)(2) 

of the Act. As discussed in further detail 

below (see ‘‘Application of Sections 

3(5)(A) and 4(a)(3) and Exclusions 

Under Section 4(b)(2) of the Act’’), we 

are proposing 56 properties for 

exclusion that are currently protected 

through Habitat Conservation Plans that 

provide protection and habitat 

management for Alabama beach mice. 

There are 56 properties that have been 

issued incidental take permits (ITPs) for 

ABM under section 10(a)(1)(B) within 

the areas that we have identified contain 

the features essential to the conservation 

of the subspecies. All of these properties 

possess HCPs that require the use of 

native plants in landscaping, control of 

domestic and feral cats and house mice, 

wildlife-friendly lighting, monitoring, 

and other activities beneficial to ABM. 

After our review of these ITPs and 


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HCPs, we believe the benefits of 

exclusion from the proposed critical 

habitat revision outweigh the benefits of 

inclusion for all 56 of these areas, 

covering a total of 158 ac (64 ha). We 

propose to designate the remaining 

1,298 ac (525 ha) as ABM critical 

habitat. 

In summary, the habitat contained 

within the five proposed units described 

below, combined with habitat within 

the Perdue Unit of the Refuge and in the 

HCP sites proposed for exclusion, 

constitutes our best determination of 

areas that contain the physical and 

biological features essential for the 

conservation of the ABM. The five units 

that we are proposing as critical habitat 

encompass approximately 1,298 ac (525 

ha) of coastal dune habitat in Baldwin 

County, Alabama. Each of these units 

has been occupied by the species as 

recently as 2004. Although these units 

represent only a small proportion of the 

subspecies’ historic range, they include 

a significant proportion of Alabama’s 

best remaining coastal dune habitat, 

reflect the wide variety of habitat types 

utilized by the ABM, and are spread 

evenly throughout the historic range of 

the subspecies. The areas include all of 

the high-elevation habitats (as 

determined by review of LIDAR data, 

storm surge model estimates, and postHurricane Ivan measurements) crucial 

to the subspecies’ survival during and 

after major hurricane events. Because 

short-term occupation of habitat varies 

in response to tropical storm activity, 

ABM presence will vary spatially and 

temporally throughout the proposed 

designation, and may be unevenly 

distributed at any given time. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid proposing the designation 

of developed areas such as buildings or 

houses, paved areas, gravel driveways, 

ponds, swimming pools, lawns, and 

other structures that lack PCEs for the 

ABM. When it has not been possible to 

map out these structures and the land 

upon which they are sited because of 

scale issues, they have been excluded by 

rule text. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultations, unless they 

affect the species and/or PCEs in 

adjacent critical habitat. It is important 

to note that the maps provided in this 

proposed rule (see ‘‘Proposed 

Regulation Promulgation’’ section) are 

for illustrative purposes. For the precise 

legal definition of critical habitat, please 

refer to the narrative unit descriptions 

in the ‘‘Proposed Regulation 

Promulgation’’ section of this rule. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing and 

containing the PCEs may require special 

management considerations or 

protections. We also assess whether 

areas determined to be occupied since 

the time of listing and containing PCEs 

require special management 

considerations or protections. As 

discussed in more detail in the unit 

descriptions below, we find that all of 

the areas we are proposing for 

designation may require special 

management considerations or 

protections due to threats to the 

subspecies and/or its habitat. Such 

management considerations and 

protections include management of nonnative predators and competitors, 

management of non-native plants, and 

protection of beach mice and their 

habitat from threats by road 

construction, urban and commercial 

development, heavy machinery, and 

recreational activities. 

Proposed Critical Habitat Designation 

We are proposing five units as critical 

habitat for the ABM. The units 

described below constitute our best 

assessment, at this time, of the areas 

determined to be occupied by the ABM 

at the time of listing that contain one or 

more of the primary constituent 

elements and may require special 

management, and those additional areas 

that were not occupied at the time of 

listing, but were found to be essential 

for the conservation of ABM. These five 

units, as well as the areas proposed for 

exclusion below, represent our 

determination of those areas that 

contain the physical and biological 

features that are and those additional 

areas found to be essential to the 

conservation of the subspecies. These 

additional areas are essential for the 

conservation of the ABM for two main 

reasons. First, at the time of listing, 

beach mice were thought to be restricted 

to the frontal dune habitat and 

researchers did not focus on scrub 

habitat. Consequently, occurrence 

information of beach mice in scrub 

habitat was sparse even in the relatively 

recent past. However, scrub habitat is 

now known to be invaluable to beach 

mice and inclusion of this habitat in 

critical habitat is a main stimulus of this 

redesignation. Second, as the coastal 

dune environment changes dramatically 

through time, so do beach mouse 

populations. As dunes erode or build 

and habitat and food resources fluctuate 

in response to coastal processes such as 

erosion and tropical storm events, beach 

mouse populations respond 

accordingly, either through short- or 

long-term movements, or through local 

extinctions. As habitat improves in the 

future, densities increase or beach mice 

recolonize the recovering areas. Because 

of this aspect of their biology, and the 

fact that so few natural areas remain but 

mice currently occupy these areas, these 

areas containing PCEs where beach mice 

had not been detected at the time of 

listing are important to the species’

persistence. We have proposed only 

those areas that we believe to be 

essential for the conservation of the 

ABM. For these reasons listed above, we 

propose areas that were not known to be 

occupied at the time of listing, but 

contain one or more of the PCEs and are 

essential for the conservation of the 

beach mice. 

We are proposing five areas as critical 

habitat for the ABM: (1) Fort Morgan 

State Historic Site and adjacent lands 

(hereafter referred to as Fort Morgan 

Unit), (2) lands along the right-of-way of 

Fort Morgan Parkway (State Highway 

180), and south of the Alabama 

Department of Environmental 

Management’s Coastal Construction 

Control line (hereafter referred to as 

Little Point Clear Unit), (3) highelevation habitat in the Gulf Highlands 

(multifamily) area (Gulf Highlands 

Unit), (4) Bureau of Land Management 

properties and private inholdings 

within the Perdue Unit of the Refuge 

(hereafter referred to as Pine Beach), and 

(5) Gulf State Park Unit. Table 1 below 

provides the approximate area (acres/ 

hectares) determined to meet the 

definition of critical habitat for the 

ABM. 


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TABLE 1.—AREAS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE ALABAMA BEACH MOUSE AND

THE AREA PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT

Geographic area 

Definitional 

areas (acres/ 

hectares) 

Area proposed 

for exclusion 

from final 

designation 

(acres/ 

hectares) 

Conservation 

plan type 

The Dunes .................................................................................................................................. 15/6 15/6 HCP. 

Bay to Breakers .......................................................................................................................... 3/1 3/1 HCP. 

Kiva Dunes ................................................................................................................................. 50/20 50/20 HCP. 

Plantation Palms ......................................................................................................................... 12/5 12/5 HCP. 

The Beach Club .......................................................................................................................... 15/6 15/6 HCP. 

Martinique on the Gulf ................................................................................................................ 10/4 10/4 HCP. 

Perdue Unit, Bon Secour NWR .................................................................................................. 1,063/430 1,063/430 CCP. 

Gulf State Park ........................................................................................................................... 171/69 44/18 HCP. 

49 Single Family Homes ............................................................................................................ 17/7 17/7 HCP. 

Total (Baldwin County) ........................................................................................................ 1356/548 1229/497 

The approximate area encompassed 

within each proposed critical habitat 

unit is shown in Table 2. 

TABLE 2.—CRITICAL HABITAT UNITS PROPOSED FOR THE ALABAMA BEACH MOUSE

[Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas without PCEs] 

Critical habitat unit 

Federal 

(acres/ 

hectares) 

State 

(acres/ 

hectares) 

Local and 

private 

(acres/ 

hectares) 

Total 

(acres/ 

hectares) 

1. Fort Morgan ................................................................................................. 44/18 337/136 44/18 424/172 

2. Little Point Clear .......................................................................................... 16/6 82/33 173/71 264/106 

3. Gulf Highlands ............................................................................................. 11/4 47/19 338/137 388/157 

4. Pine Beach .................................................................................................. 11/5 ........................ 21/8 32/13 

5. Gulf State Park ............................................................................................ ........................ 190/77 ........................ 190/77 

Total .......................................................................................................... 82/33 656/265 576/234 1,298/525 

We present brief descriptions of all 

units, and reasons why they have the 

features that are essential for the 

conservation of the ABM, below. 

Universal Transverse Mercator (UTM) 

coordinates and a more precise legal 

description of each unit are provided in 

the Proposed Regulation section. 

Unit 1: Fort Morgan Unit 

Unit 1 (Map 2) consists of 424 ac (172 

ha) and encompasses ABM habitat in 

the Fort Morgan State Historic Site and 

private lands to the east. It is located at 

the extreme western edge of the ABM 

range, and consists principally of 

habitat that was known to be occupied 

at the time of listing (50 FR 23872; 

Holliman 1983) south of State Highway 

180 (hereafter referred to as Fort Morgan 

Parkway in the rule text), with the 

exception of a single line of high scrub 

dunes directly north of the roadway and 

within the historic site boundaries. The 

actual Fort and associated structures 

and developed areas that were included 

in the original designation are not 

included in this proposed unit. The unit 

extends from mean high water line 

(MHWL) northward to the break 

between scrub dune habitat and either 

the maritime forest or developed 

landscape (such as grassy areas 

associated with Fort Morgan State 

Historic Site). The proposed unit is 

bounded to the west by Mobile Bay, and 

to the east by Unit 2 (western property 

line of the ‘‘Bay to Breakers’’ residential 

development) (see Unit 2 Description). 

Much of Unit 1 is existing critical 

habitat that was designated at the time 

of listing (50 FR 23872). We are 

proposing a minor expansion to 

incorporate scrub habitat. ABM habitat 

within The Dunes development is 

protected under an HCP: therefore, we 

propose to exclude from this Unit (see 

Exclusions section). 

ABM occurrence in the proposed unit 

over time is well documented (Holliman 

1983; 50 FR 23872; Rave and Holler 

1992; Sneckenberger 2001) and mice 

have been captured here following 

Hurricane Ivan (Endangered Species 

Consulting Services 2004a; Service 

2005a). Suspected ABM tracks have 

been identified following Hurricanes 

Katrina and Rita (2005) (Service 2005a). 

This unit contains the features essential 

to the conservation of the subspecies. 

Some areas of the unit contain a 

contiguous mix of primary and 

secondary dunes, interdunal swales, 

wetlands, and scrub dunes, whereas 

other areas contain high-quality primary 

and secondary dune habitat. While no 

one portion of the proposed unit 

contains every PCE, all five PCEs are 

present. 

Natural areas of the Fort Morgan 

Historic Site are owned by the State of 

Alabama (Alabama State Historical 

Commission), but are currently managed 

by the Refuge according to a cooperative 

agreement (Service 2005d) (see 

‘‘Application of Section 3(5)(A) and 

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

Act’’ section for further detail on 

management). Threats in this unit that 

may require special management 

considerations include humanVerDate Aug<31>2005 18:17 Jan 31, 2006 Jkt 208001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\01FEP3.SGM 01FEP3

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generated refuse and degraded habitat 

(from activities associated with 

recreational use, for example). 

Unit 2: Little Point Clear Unit 

Unit 2 consists of 264 ac (106 ha) and 

includes east-west bands of ABM 

habitat south of the Alabama 

Department of Environmental 

Management’s Coastal Construction 

Control Line (CCCL) (ADEM 1995) and 

along the southern roadway right-of-way 

for Fort Morgan Parkway (see Map 3). 

This Unit is bounded to the west by 

Unit 1 and extends eastward to the 

western edge of the Surfside Shores 

subdivision (western boundary of Unit 

3). The CCCL varies in width but 

generally extends about 300 feet (91 

meters) landward of MHWL. The Fort 

Morgan Parkway right-of-way, which is 

managed by the State of Alabama 

(Alabama Department of Conservation 

and Natural Resources) extends 160 feet 

(49 meters) south of and parallel to the 

roadway centerline. Proposed critical 

habitat does not include the road or 

shoulder of the Fort Morgan Parkway. In 

several places along the east-west extent 

of these units, additional parcels, either 

to the south of the Fort Morgan Parkway 

or to the north of the CCCL, which 

contain the PCEs (see Primary 

Constituent Element section) are 

proposed for inclusion in the revised 

designation. 

This unit, while often being 

inundated during storm surge events 

(Service 2004a; ENSR 2004; ACOE 

2001), represents the last remaining 

natural habitat connections between 

ABM populations in and around Unit 1 

and Unit 3, and provides an essential 

link between those populations (PCE 

#4). Portions of this unit south of the 

CCCL contain PCE #2 and some sections 

of the right-of-way contain PCE #3. 

While this area was identified as being 

within the range of the ABM (50 FR 

23872; Holliman 1983, Dawson 1983), 

we have no records that ABM were 

present at the time of listing. However, 

pre-hurricane Ivan trapping has verified 

the presence of mice south of the CCCL 

(Meyers 1983; 50 FR 23872; Endangered 

Species Consulting Services 2004b) and 

along the right-of-way (Sneckenberger 

2001; Farris 2003). As described above, 

due to life history aspects of ABM, 

because so few natural areas remain for 

ABM, and because this unit is currently 

occupied and contains two of the PCEs, 

we consider this unit essential for the 

conservation of the subspecies. Habitat 

south of the CCCL consists of primary 

and secondary dunes, while habitat 

along the right-of-way consists primarily 

of scrub that is often temporarily 

disturbed by utility line maintenance. 

This frequent disturbance may benefit 

ABM by maintaining the habitat in an 

open condition. 

This proposed unit is a mix of State, 

Federal, local, and private ownership. 

Threats south of the CCCL that may 

require special management include 

extensive recreational pressure and feral 

cats. 

Unit 3: Gulf Highlands Unit 

Unit 3 consists of 388 ac (157 ha) in 

the central portion of the Fort Morgan 

Peninsula. It includes portions of the 

Morgantown, Surfside Shores, and 

Cabana Beach subdivisions, as well as 

portions of the proposed Beach Club 

West/Gulf Highlands development, 

Bureau of Land Management properties, 

and some properties along the Fort 

Morgan Parkway right-of-way (see Map 

4). It is bounded to the west by Unit 2. 

The main portion of the proposed unit 

generally stretches from MHWL 

landward to a natural border of 

wetlands to the north. This portion is 

bisected by ABM habitat associated with 

the Kiva Dunes, Plantation Palms, Beach 

Club, and Martinique developments and 

is proposed for exclusion because of its 

HCPs (see Exclusions section). The 

proposed unit also contains an eastward 

continuation of ABM habitat adjacent to 

the Fort Morgan Parkway. This northern 

portion of Unit 3 is bounded to the west 

by Unit 2 and to the east by wetlands 

on the Martinique property. Like the 

right-of-way corridor in Unit 2, it 

extends from the centerline of Fort 

Morgan Parkway 160 feet (49 meters) to 

the south. Unit 3 serves as an expansion 

of critical habitat Zone 2 that was 

designated at the time of listing (50 FR 

23872), but did not include scrub 

habitat. This unit contains the features 

essential to the conservation of the 

subspecies; all five PCEs are present in 

varying amounts throughout this unit. 

This proposed unit, combined with 

the neighboring Perdue Unit of the 

Refuge and several properties with 

conservation plans that are being 

proposed for exclusion (see Exclusions 

section), contains the largest assemblage 

of high-elevation habitat within the 

range of the ABM (ENSR 2004; ACOE 

2001; Service 2004c). The largest tracts 

of contiguous habitat possessing a full 

gradient of ABM habitat (primary dunes 

landward to scrub dunes) are also found 

here. ABM occupancy is well 

documented both at the time of listing 

(Meyers 1983; Holliman 1983) and 

recently (Endangered Species 

Consulting Services, LLC and ENSR 

Corporation 2001; Farris 2003). Mice 

have been found here following 

Hurricane Ivan (Endangered Species 

Consulting Services 2004c, 2004d). 

Threats that may require special 

management include habitat 

degradation and fragmentation, 

extensive recreational pressure, post 

storm cleanups, artificial lighting, 

predation, and human-generated refuse. 

Unit 4: Pine Beach 

This unit (see Map 5) consists of 32 

ac (13 ha), including a Bureau of Land 

Management property and 27 private 

inholdings within the Perdue Unit of 

the Bon Secour National Wildlife 

Refuge, not managed under the Refuge’s 

draft Comprehensive Conservation Plan. 

The primary and secondary dunes 

within this unit were part of ‘‘Zone 2’’

of the original critical habitat 

designation. ABM are well documented 

from the area both recently (Rave and 

Holler 1992; Swilling et al. 1998; 

Service 2003) and from the time of 

listing (Holliman 1983; Meyers 1983). 

This unit, along with adjacent Refuge 

lands (see Exclusions section), contains 

the features essential to the conservation 

of the ABM because of its high-elevation 

habitat and continuity between habitat 

types. It contains PCEs 2, 3, and 5, and 

when combined with the surrounding 

Refuge lands, it also includes PCEs 1 

and 4. Threats that may require special 

management considerations on this unit 

may include artificial lighting from 

residences, human-generated refuse that 

may attract predators, feral cats, habitat 

fragmentation from the design and 

construction of properties (and access 

routes) to inholdings, and primary and 

secondary dunefields impacted from 

recent storm events. 

Unit 5: Gulf State Park 

Unit 5 consists of 190 ac (77 ha) of 

ABM habitat in Gulf State Park, 

immediately east of the City of Gulf 

Shores and west of the City of Orange 

Beach (see Map 6). This unit retains 

most critical habitat designated in the 

1985 listing rule (Zone 3—all primary 

and secondary dunes south of State 

Route 182) (50 FR 23872) and adds 

approximately 30 ac (12 ha) of scrub 

habitat located directly north of S.R. 

182. It extends from MHWL northward 

to a natural boundary consisting of 

brackish wetlands and maritime forest. 

ABM habitat that is covered under the 

2004 HCP is proposed for exclusion 

from the designation (see Exclusions 

section). 

This unit contains a mix of scrub and 

primary and secondary dune habitat, 

and represents the last remaining 

sizable block of habitat on the eastern 

portion of the historic range of the 

subspecies. 

Mice were documented in the Park in 

the late 1960s (Linzey 1970), but were 


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presumed extirpated by the early 1980s 

(Holliman 1983; Holler and Rave 1991), 

because of habitat isolation combined 

with the effects of tropical storm, 

predation (primarily from feral cats), 

and competition with house mice. 

However, critical habitat designated in 

the Park at the time of listing was 

referred to as occupied in our final 

listing rule (50 FR 23872). Therefore, we 

consider this area to be occupied at the 

time of listing. ABM were reintroduced 

to the park in 1998, and subsequent 

trapping confirmed their presence there 

(Sneckenberger S., Service, personal 

communication, 2005; Service 2003b). 

This proposed unit was heavily 

impacted by Hurricane Ivan in 2004 

(Service 2004a) and Hurricane Katrina 

(2005) and recent trapping has not 

located mice (Volkert 2005). This unit 

contains PCEs 2 and 3 and, therefore, 

possesses the habitat features essential 

to the conservation of the subspecies. 

This proposed unit is State-owned 

and managed by the State Parks 

Division of the Alabama Department of 

Conservation and Natural Resources. It 

has pressures from heavy recreational 

use, and ABM habitat here has been 

severely impacted by recent hurricanes. 

Threats to ABM habitat include loss of 

dune topography and vegetation from 

habitat destruction, human-generated 

refuse that could attract predators, feral 

cats, and artificial lighting. Habitat 

fragmentation also threatens ABM 

within this unit. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to: Alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Courts of Appeal (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F. 3d 1059 (9th Cir 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir 2001); also see discussion 

on Role of Critical Habitat above) have 

invalidated this definition. Pursuant to 

current national policy and the statutory 

provisions of the Act, destruction or 

adverse modification is determined on 

the basis of whether, with 

implementation of the proposed Federal 

action, the affected critical habitat 

would remain functional (or retain the 

current ability for the PCEs to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action likely to jeopardize the 

continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or to destroy 

or adversely modify its critical habitat. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

compliance with the requirements of 

section 7(a)(2) will be documented 

through the Service’s issuance of: (1) A 

concurrence letter for Federal actions 

that may affect, but are not likely to 

adversely affect, listed species or critical 

habitat; or (2) a biological opinion for 

Federal actions that may affect, but are 

likely to adversely affect, listed species 

or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated that 

may be affected and the Federal agency 

has retained discretionary involvement 

or control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consulting us on actions 

for which formal consultation has been 

completed, if those actions may affect 


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subsequently listed species or 

designated critical habitat or adversely 

modify or destroy proposed critical 

habitat. 

Federal activities that may affect the 

ABM or its designated critical habitat 

will require section 7 consultation 

under the Act. Activities on State, local, 

or private lands requiring a permit from 

a Federal agency, such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act, a 

section 10(a)(1)(B) permit from the 

Service, or some other Federal action, 

including funding (e.g., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding), will also continue to be 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat and 

actions on non-Federal and private 

lands that are not federally funded, 

authorized, or permitted do not require 

section 7 consultation. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the 

Alabama Beach Mouse and Its Critical 

Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for ABM 

jeopardy analyses that relies heavily on 

the importance of populations to the 

survival and recovery of the subspecies. 

The section 7(a)(2) analysis is focused 

not only on these populations but also 

on the habitat conditions necessary to 

support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the ABM in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, if a proposed Federal action 

is incompatible with the viability of a 

population, inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each population to 

the survival and recovery of the species 

as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting ABM critical habitat. 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Generally, the conservation role of 

critical habitat units is to support viable 

populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the ABM. Federal activities that, 

when carried out, may adversely affect 

critical habitat for the ABM include, but 

are not limited to: 

(1) Actions that would significantly 

alter dune structure or the degree of soil 

compaction. Such activities could 

include, but are not limited to, 

permanent conversion of ABM habitat 

for residential or commercial purposes, 

excessive foot traffic, and the use of 

construction, utility, or off-road vehicles 

in beach mouse habitat. These activities, 

even if temporary, could alter burrow 

construction, reduce the availability of 

potential burrow sites, and degrade or 

destroy beach mouse habitat. 

(2) Actions that would significantly 

alter the natural vegetation of the coastal 

dune community. Such activities could 

include, but are not limited to, allowing 

non-native species to establish in the 

area, landscaping with grass or other 

non-indigenous plants, and landscaping 

that yields excessive leaf litter, mulch, 

or other foreign materials. These 

activities could alter beach mouse 

foraging activities and degrade or 

destroy beach mouse habitat. 

(3) Actions that would significantly 

alter the natural predator/prey balance 

of the coastal dune community. Such 

activities could include, but are not 

limited to, allowing unprotected refuse 

in the area and allowing or encouraging 

feral cat communities or the temporary 

release of domestic cats. These activities 

could alter beach mouse foraging 

activities and the availability of foraging 

resources and cause appreciable 

mortalities. 

(4) Actions that would significantly 

alter natural lighting. Such activities 

could include, but are not limited to, 

allowing artificial lighting that does not 

comply with wildlife-friendly lighting 

specifications. These activities could 

alter beach mouse foraging activities, 

increase predation upon beach mice, 

and reduce the use of otherwise suitable 

beach mouse habitat. 

(5) Activities that eliminate or 

degrade movement within and among 

designated critical habitat units. Actions 

such as bulkhead, canal, ditch, and wall 

construction; the permanent conversion 

of beach mouse habitat to residential or 

commercial development; changing of 

water elevations or flooding; the 

removal of vegetation; and excessive 

artificial lighting could effectively block 

east-west and/or north-south corridors 

among various habitat types, and isolate 

habitat. 

We consider the five critical habitat 

units to be currently occupied by the 

subspecies, based on trapping data, our 

2003 habitat map, and Service trapping 

protocol (Service 2005c). All of the units 

included in this proposed designation 

contain the features that are essential to 

the conservation of the ABM or are 

found to be essential for the 

conservation of the subspecies. 

Application of Section 3(5)(A) and 

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

Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographic area occupied by 

the species at the time of listing on 

which are found those physical and 

biological features (i) essential to the 

conservation of the species and (ii) that 

may require special management 

considerations or protection. Therefore, 

areas within the geographical area 

occupied by the species at the time of 

listing that do not contain the features 

essential for the conservation of the 

species are not, by definition, critical 

habitat. Similarly, areas within the 

geographic area occupied by the species 

at the time of listing that do not require 

special management or protection also 

are not, by definition, critical habitat. 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans as well as 

management under Federal agencies 

jurisdictions can provide protection and 

management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 


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making this determination, we examine 

whether the plan provides management, 

protection, or enhancement of the PCEs 

that is at least equivalent to that 

provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides a conservation 

benefit to the species (i.e., the plan must 

maintain or provide for an increase in 

the species’ population, or the 

enhancement or restoration of its habitat 

within the area covered by the plan); (2) 

the plan provides assurances that the 

conservation management strategies and 

actions will be implemented (i.e., those 

responsible for implementing the plan 

are capable of accomplishing the 

objectives, and have an implementation 

schedule or adequate funding for 

implementing the management plan); 

and (3) the plan provides assurances 

that the conservation strategies and 

measures will be effective (i.e., it 

identifies biological goals, has 

provisions for reporting progress, and is 

of a duration sufficient to implement the 

plan and achieve the plan’s goals and 

objectives). 

Further, section 4(b)(2) of the Act 

states that critical habitat shall be 

designated, and revised, on the basis of 

the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

Perdue and Fort Morgan Units of the 

Bon Secour National Wildlife Refuge 

The Refuge finalized its 

Comprehensive Conservation Plan in 

November 2005. This document details 

proposed conservation actions for the 

Refuge over a 15-year period, and 

outlines three objectives (implement 

monitoring protocol and manage beach 

and scrub habitat for the ABM) and two 

projects (standardize surveys and 

manage and evaluate scrub habitat for 

the ABM) that specifically address the 

subspecies. Many other objectives (e.g., 

predator management plan) and projects 

(e.g., develop biological database) would 

also benefit ABM. The Service has a 

statutory mandate to manage the refuge 

for the conservation of listed species, 

and the CCP provides a detailed 

implementation plan. 

We believe that the CCP provides a 

substantial conservation benefit to the 

subspecies, and there are reasonable 

assurances that it will be implemented 

properly and in an effective fashion 

within portions of the Perdue Unit of 

the Refuge that contains the physical 

and biological features essential to the 

conservation of the ABM. Accordingly, 

we believe that these units of the Refuge 

do not meet the definition of critical 

habitat under section 3(5)(A) of the Act 

because a secure management plan is 

already in place to provide for the 

conservation of the ABM, and no special 

management or protection will be 

required. 

The Service also either owns or 

manages 510 acres of coastal dune 

habitat, most of which is occupied by 

ABM, within the boundaries of the Fort 

Morgan State Historic Site. These lands, 

collectively, are referred to as the Fort 

Morgan Unit of the Refuge, but are 

within the Historic Site. Of the 510 

acres, approximately 480 acres are 

owned by the State, but are managed by 

the Service through a cooperative 

management agreement with the 

Alabama Historical Commission. While 

the CCP outlines proposed management 

activities within the Fort Morgan Unit, 

we do not know whether the 

cooperative management agreement will 

be modified or terminated in the future, 

and therefore, if the conservation plan 

outlined within the CCP will be 

implemented. Areas containing the 

PCEs within these State-owned lands 

and the approximately 30 acres of 

Federal land imbedded within them, 

therefore, may require special 

management or protection, and are 

being proposed for inclusion into the 

critical habitat designation as part of 

Unit 1. 

Habitat Conservation Plans (HCPs) 

As described above, section 4(b)(2) of 

the Act requires us to consider other 

relevant impacts, in addition to 

economic and national security impacts, 

when designating critical habitat. 

Section 10(a)(1)(B) of the Act authorizes 

us to issue permits for the take of listed 

wildlife species incidental to otherwise 

lawful activities. The ESA specifies that 

an application for an incidental take 

permit (ITP) must be accompanied by a 

habitat conservation plan and specifies 

the content of such a plan. The purpose 

of conservation plans is to describe and 

ensure that the effects of the permitted 

action on covered species are 

adequately minimized and mitigated, 

and that the action does not appreciably 

reduce the survival and recovery of the 

species. 

HCPs vary in size and may provide for 

incidental take coverage and 

conservation management for one or 

many federally listed species. 

Additionally, more than one applicant 

may participate in the development and 

implementation of an HCP. The areas 

occupied by, and determined to have 

features essential to, ABM include 56 

approved HCPs that specifically address 

the subspecies. These include HCPs for 

6 multifamily developments, one hotel 

and convention center complex, and 49 

single family homes (see below). 

The completed HCPs and the 

associated ITPs issued by the Service 

contain management measures and 

protections for identified areas that 

protect, restore, and enhance the value 

of these lands as habitat for ABM. These 

measures include explicit standards to 

minimize any impacts to the ABM and 

its habitat. In general, HCPs are 

designed to ensure that the value of the 

conservation lands are maintained, 

expanded, and improved for the species 

that they cover. 

For HCPs that have been already 

approved, we have provided assurances 

to permit holders that once the 

protection and management required 

under the plans are in place and for as 

long as the permit holders are fulfilling 

their obligations under the plans, no 

additional mitigation in the form of land 

or financial compensation will be 

required of the permit holders and, in 

some cases, specified third parties. 

A discussion of completed HCPs for 

areas that we identified as having the 

PCEs follows. 

Multifamily Developments 

HCPs for six multifamily 

developments along the Fort Morgan 

Peninsula were approved between 1994 

and 1996. These developments include, 

from west to east, The Dunes, Bay to 

Breakers, Kiva Dunes, Plantation Palms, 

The Beach Club, and Martinique, all of 

which were issued 30-year ITPs by the 

Service. The HCPs covering the 

properties are almost identical and 

consist of setting aside primary and 

secondary dune habitat in perpetuity, 

and the construction of dune walkovers 

within protected areas to minimize 

pedestrian impact to habitat. These 

HCPs also require the use of native 

plants in landscaping, control of 

domestic and feral cats, interpretive 

signage, minimal outdoor lighting, livetrapping surveys, and annual reports. 


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HCPs for The Beach Club and 

Martinique developments also include 

the creation of endowment funds for use 

in future ABM conservation activities 

(e.g., research or habitat restoration). All 

of these properties have been developed 

as permitted or are nearing completion, 

and the areas within the properties that 

we have identified as containing the 

features that are essential to the 

conservation of the ABM consist of the 

acreage set aside as ABM conservation 

zones (see Table 1). Much of these 

conservation zones were designated as 

critical habitat at the time ABM was 

listed. 

On the basis of the conservation 

benefits afforded the ABM from the 

referenced HCPs and the provisions of 

section 4(b)(2) of the Act, we propose to 

exclude the areas on these properties 

that contain the features that are 

essential to the conservation of the 

subspecies from proposed critical 

habitat. We have further determined 

that the exclusion of these areas from 

critical habitat would not result in the 

extinction of the ABM. The rationale for 

this determination is below (see Benefits 

of Exclusion). 

Gulf State Park Hotel and Convention 

Center Complex 

In 2004, we approved an HCP for the 

upcoming demolition and 

reconstruction of a new hotel and 

convention center complex south of S.R. 

182 on Gulf State Park. This new 

complex will replace the current 

facilities (which were destroyed during 

Hurricane Ivan) and its construction 

will result in a net gain of 3 ac (1 ha) 

of ABM habitat due to improved siting 

and design of the structures and 

restoration work outlined in the HCP. 

The HCP for this complex, which covers 

both the construction and operation of 

the facilities, outlines an aggressive 

strategy for the control of roaming cats, 

house mice, and refuse; and includes 

wildlife-friendly lighting, native 

landscaping, and visitor outreach on the 

fragile coastal environment (including 

the ABM). The area covered by the HCP 

and ITP includes the 44 ac (18 ha) 

surrounding the complex. 

On the basis of the conservation 

benefits afforded the ABM from this 

HCP and the provisions of section 

4(b)(2) of the Act, we propose to exclude 

the 44 ac (18 ha) covered area, portions 

of which we have identified contain the 

features that are essential to the 

conservation of the subspecies, from 

proposed critical habitat. We have 

further determined that the exclusion of 

this area from critical habitat would not 

result in the extinction of the ABM. The 

rationale for this determination is below 

(see Benefits of Exclusion). 

Single Family Homes 

Prior to August 2004, we approved 

HCPs for the construction of two single 

family homes in the Cabana Beach 

subdivision. Portions of both these 

properties have been determined to 

contain the features that are essential to 

the conservation of the ABM. In August 

2004, we approved HCPs for the 

construction of 17 additional single 

family homes in occupied ABM habitat. 

Ten of these properties have been 

determined to contain features essential 

to the conservation of the ABM (see 

CRITERIA section). In September 2005, 

we approved HCPs for the construction 

of 55 more residences within occupied 

ABM habitat. Thirty-seven of these 

properties (11 of which are located 

within ‘‘The Dunes’’ development) have 

been determined to be essential to the 

ABM. The HCPs and ITPs covering all 

of these properties while under and 

after construction require a small 

developed footprint (typically no larger 

than 0.1 ac (0.004 ha)) for all structures 

and driveways, the construction of a 

dune walkover for Gulf-front lots, and 

the conservation of the remaining ABM 

habitat on the property for the duration 

of the ITP. The HCPs also call for 

wildlife-friendly lighting, landscaping 

with native plants, control of domestic 

pets (such as cats), and refuse control. 

The associated ITPs are valid for 50 

years and ITP permit conditions are 

transferable if property ownership 

changes. 

On the basis of the conservation 

benefits afforded the ABM from the 

referenced HCPs and the provisions of 

section 4(b)(2) of the Act, we propose to 

exclude ABM habitat within these 49 

properties that contain features essential 

to ABM conservation from proposed 

critical habitat. We have further 

determined that the exclusion of these 

areas from critical habitat would not 

result in the extinction of the ABM. The 

rationale for this determination is below 

(see Benefits of Exclusion). 

Following is our analysis of the 

benefits of including lands within 

approved HCPs versus excluding such 

lands from this critical habitat 

designation. 

(1) Benefits of Inclusion 

The benefits of including approved 

HCPs in critical habitat are normally 

small. The principal benefit of any 

designated critical habitat is that 

federally funded or authorized activities 

that may affect it require consultation 

under section 7 of the Act. This 

consultation process ensures adequate 

protection against adverse modification 

of critical habitat. Where HCPs are in 

place, our experience indicates that this 

benefit is small or non-existent. 

Currently approved and permitted HCPs 

are typically crafted to ensure the longterm survival and conservation of 

covered species within the plan area. 

These approved HCPs, which were 

based upon the best available science at 

the time, set aside areas that contain the 

habitat features essential to the 

conservation of the subspecies, 

including critical habitat designated at 

the time of listing. Other areas within 

these developments no longer contain 

natural ABM habitat. All 56 HCPs 

include management measures and 

protections for conservation lands 

designed to protect, restore, and 

enhance their value as habitat for 

covered species. While the presence or 

absence of ABM on each of the sites has 

not been verified, the presence of ABM 

on many of the sites has been confirmed 

by field surveys. On the remainder of 

the sites, ABM have been documented 

on nearby or adjacent sites containing 

identical habitat. As such, we have a 

high degree of certainty that ABM 

cyclically utilize these sites. Surveys 

completed after the development of 

several of the sites indicates that ABM 

continue to utilize the undeveloped 

portions of the sites. Therefore, a clear 

Federal nexus remains on these sites. 

This includes the sites after 

development where we anticipate the 

continued usage by ABM. 

Another possible benefit to including 

these lands in the proposed designation 

is public outreach and education. The 

designation of critical habitat can serve 

to educate landowners and the public 

regarding the potential conservation 

value of an area. This may focus and 

contribute to conservation efforts by 

other parties by clearly delineating areas 

of high conservation value for certain 

species. However, through the HCP 

development process, which typically 

involves extensive outreach and 

opportunity for public review and 

typically results in formal protection of 

essential habitat areas, the public is well 

informed and educated about 

conservation value of essential habitat 

lands. The importance of these HCPcovered areas to the ABM is reinforced 

through the publication of this proposed 

critical habitat revision, regardless of 

whether the areas are included or 

excluded. 

(2) Benefits of Exclusion 

The benefits of excluding HCPs 

include relieving landowners, 

communities and counties of the need 

to consult a second time to determine if 


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their proposed action would constitute 

adverse modification. A second 

consultation would provide little benefit 

for the species since a formal 

consultation has already been 

completed on the project site to 

determine if the project would result in 

jeopardy. Additional regulatory burden 

that might be imposed by critical habitat 

beyond that found in the HCP may be 

perceived. This benefit to exclusion is 

particularly compelling because we 

have made the determination that once 

an HCP is negotiated and approved by 

us after public comment, activities 

consistent with the plan will satisfy the 

requirements of the Act. Imposing an 

additional regulatory review after HCP 

completion may call into question 

conservation efforts and partnerships in 

many areas, and could be viewed as a 

disincentive to those developing HCPs. 

Excluding HCPs provides us an 

opportunity to streamline regulatory 

compliance, and provides regulatory 

certainty for HCP participants. 

Another benefit of excluding HCPs is 

that it would encourage the continued 

development of partnerships with 

present and future HCP participants, 

including States, local governments, 

conservation organizations, and private 

landowners, that together can 

implement conservation actions we 

would otherwise be unable to 

accomplish. By excluding areas covered 

by HCPs from critical habitat 

designation, we clearly maintain our 

commitments, preserve these 

partnerships, and, we believe, set the 

stage for more effective conservation 

actions in the future. 

In addition, an HCP application must 

undergo consultation pursuant to 

section 7 of the Act. Several of these 

developments have already undergone a 

formal evaluation of the plan’s potential 

to adversely modify critical habitat that 

was designated in 1985, and in all cases 

the designated critical habitat is part of 

the ABM conservation areas set aside 

under the HCP. In those areas where 

critical habitat had not been designated, 

we carefully analyzed the effects of the 

plan on essential habitat areas as part of 

our jeopardy analysis under section 7 of 

the Act, and as part of its evaluation of 

the adequacy of the plan under section 

10 of the Act. Because virtually all HCPs 

are developed to minimize and mitigate 

the impacts of take (as defined in the 

Act) of covered species resulting from 

habitat loss within the plan area, a 

fundamental goal of these plans is to 

identify and protect habitat essential to 

the covered species while directing 

development to non-habitat or lower 

quality habitat areas. Thus, the plan’s 

effectiveness in protecting essential 

habitat within the plan boundaries and 

management challenges within the plan 

boundaries will have been thoroughly 

addressed in the HCP. Future Federal 

actions that may affect listed species 

would continue to require consultation 

under the ‘‘jeopardy standard’’ of 

section 7 of the Act. 

Further, HCPs typically provide for 

greater conservation benefits to a 

covered species than consultations 

pursuant to section 7 of the Act because 

HCPs assure the long-term protection 

and management of a covered species 

and its habitat, and funding for such 

management through the standards 

found in the 5 Point Policy for HCPs (64 

FR 35242) and the HCP No Surprises 

regulation (63 FR 8859). Such 

assurances are typically not provided by 

consultations under section 7 of the Act 

that, in contrast to HCPs, often do not 

commit the project proponent to longterm special management or protections. 

Thus, a consultation typically does not 

afford the lands it covers the extensive 

benefits an HCP provides. The 

development and implementation of an 

HCP provide other important 

conservation benefits, including the 

development of biological information 

to guide conservation efforts and assist 

in species conservation, and the 

creation of innovative solutions to 

conserve species while allowing for 

development. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

In general, we believe that the benefits 

of critical habitat designation for the 

ABM on lands within the 56 approved 

HCPs that cover this subspecies are 

small while the benefits of excluding 

these lands from designation of critical 

habitat are substantial. After weighing 

the minor benefits of including these 

lands against the much greater benefits 

derived from exclusion, including 

encouraging the pursuit of additional 

conservation partnerships, we are 

excluding lands determined to contain 

features essential to ABM conservation 

within the 56 developments covered by 

approved and legally operative HCPs 

from the proposed revised critical 

habitat. 

We believe that these HCPs and their 

associated ITPs adequately protect 

essential ABM habitat features within 

their boundaries and provide 

appropriate management to maintain 

and enhance the long-term value of this 

habitat. The education benefits of 

critical habitat designation have been 

achieved through the public outreach, 

and notice and comment procedures 

required prior to approval of these 

plans, and through their identification 

in this critical habitat revision. For these 

reasons we find that designation of 

critical habitat has little benefit in areas 

covered by these HCPs and that such 

benefits are outweighed by the benefits 

of maintaining proactive partnerships 

with plan participants and encouraging 

additional conservation partnerships 

that will result from exclusion of critical 

habitat in these plan areas. We also find 

that the exclusion of these lands from 

proposed critical habitat will not result 

in the extinction of the ABM, or hinder 

its recovery because their HCPs have 

already been evaluated under section 7 

of the Act to ensure that their 

implementation will not jeopardize the 

continued existence of the subspecies. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for the 

Alabama beach mouse is being 

prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://www.fws.gov/daphne, 

or by contacting the Daphne Ecological 

Services Field Office directly (see 

ADDRESSES section). For further 

explanation, see the ‘‘Regulatory 

Flexibility Act’’ and ‘‘Regulatory 

Planning and Review’’ discussions 

below. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

send these peer reviewers copies of this 

proposed rule immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the public comment 

period, on the specific assumptions and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 


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5532 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Proposed Rules 

must be made in writing at least 15 days 

prior to the close of the public comment 

period. We intend to schedule public 

hearings once the draft economic 

analysis is available such that we can 

take public comment on the proposed 

designation and economic analysis 

simultaneously. However, we can 

schedule public hearings on this 

proposal prior to that time, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis will be available 

from the Internet Web site at http:// 

www.fws.gov/daphne/ or by contacting 

the Daphne Fish and Wildlife Field 

Office directly (see ADDRESSES section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Our assessment of economic effect 

will be completed prior to final 

rulemaking based upon review of the 

draft economic analysis prepared 

pursuant to section 4(b)(2) of the ESA 

and E.O. 12866. This analysis is for the 

purposes of compliance with the 

Regulatory Flexibility Act and does not 

reflect our position on the type of 

economic analysis required by New 

Mexico Cattle Growers Assn. v. U.S. 

Fish & Wildlife Service 248 F.3d 1277 

(10th Cir. 2001). 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the ESA and E.O. 12866. This 

draft economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for the ABM is not a significant 

regulatory action under Executive Order 

12866, and it is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action 

and no Statement of Energy Effects is 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 


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to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments due to current public 

knowledge of the species’ protection, 

the prohibition against take of the 

species both within and outside of the 

designated areas, and the fact that 

critical habitat provides no incremental 

restrictions, we do not anticipate that 

this rule will significantly or uniquely 

affect small governments. As such, 

Small Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and revise this 

assessment if appropriate. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Alabama. The designation of critical 

habitat in areas currently occupied by 

the ABM imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments in that the areas essential 

to the conservation of the species are 

more clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of the species 

are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated areas to assist the public in 

understanding the habitat needs of the 

ABM. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands with features essential for the 

conservation of the ABM. Therefore, 

critical habitat for the subspecies has 

not been designated on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Acting Field 

Supervisor, Daphne Fish and Wildlife 

Field Office (see ADDRESSES section). 

Author 

The primary author of this package is 

the Daphne Fish and Wildlife Office 

(see ADDRESSES section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.95(a), revise the entry for 

‘‘Alabama Beach Mouse (Peromyscus 

polionotus ammobates)’’ under 

‘‘MAMMALS’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 


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(a) Mammals 

* * * * * 

Alabama Beach Mouse (Peromyscus 

polionotus ammobates) 

(1) Critical habitat units are depicted 

for Baldwin County, Alabama, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for the Alabama Beach 

Mouse are the habitat components that 

provide: 

(i) A contiguous mosaic of primary, 

secondary, and scrub vegetation and 

dune structure, with a balanced level of 

competition and predation and few or 

no competitive or predaceous nonnative 

species present, that collectively 

provides foraging opportunities, cover, 

and burrow sites. 

(ii) Primary and secondary dunes, 

generally dominated by sea oats (Uniola 

paniculata), that despite occasional 

temporary impacts and reconfiguration 

from tropical storms and hurricanes, 

provide abundant food resources, 

burrow sites, and protection from 

predators. 

(iii) Scrub dunes, generally dominated 

by scrub oaks (Quercus spp.), that 

provide food resources and burrow 

sites, and provide elevated refugia 

during and after intense flooding due to 

rainfall and/or hurricane-induced storm 

surge. 

(iv) Functional, unobstructed habitat 

connections that facilitate genetic 

exchange, dispersal, natural exploratory 

movements, and recolonization of 

locally extirpated areas. 

(v) A natural light regime within the 

coastal dune ecosystem, compatible 

with the nocturnal activity of beach 

mice, necessary for normal behavior, 

growth, and viability of all life stages. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

driveways, lawns, swimming pools, and 

roads, and the land on which such 

structures are located. 

Critical Habitat Map Units 

(4) Data layers defining map units 

were created by delineating habitats that 

contained one or more of the PCEs 

defined in paragraph (2) of this section, 

over 2001 Baldwin County, Alabama, 

color photography (UTM 16, NAD 83). 

(5) Note: Map 1 (index map) follows. 

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(6) Unit 1: Fort Morgan, Baldwin 

County, Alabama. 

(i) General Description: Unit 1 

consists of 424ac (172 ha) at the extreme 

western tip of the Fort Morgan 

Peninsula in Baldwin County, Alabama. 

This unit encompasses essential features 

of beach mouse habitat within the 

boundary of the Fort Morgan State 

Historic Site and adjacent properties 

west of the Bay to Breakers 

development. The southern and western 

extents are the mean high water level 

(MHWL). The unit extends northward to 

either the seaward extent of maritime 

forest, developed features associated 

with the Fort Morgan State Historic Site, 

or State Highway 180 (here after referred 

to as Fort Morgan Parkway). 

(ii) Coordinates: From the Fort 

Morgan and Saint Andrews Bay USGS 

1:24,000 quadrangle maps, Alabama, 

land bounded by the following UTM 16 

NAD 83 coordinates (E,N): 

401473.62, 3344763.21; 401547.57, 

3344692.62; 401513.96, 3344669.09; 

401503.87, 3344514.47; 401369.42, 

3344440.53; 401577.82, 3344356.49; 

402008.06, 3344443.89; 402169.41, 

3344622.04; 402525.70, 3344682.54; 

403820.62, 3344782.93; 404628.95, 

3344823.00; 404623.54, 3344330.64; 

404288.09, 3344287.36; 404288.09, 

3344758.07; 403995.92, 3344747.25; 

403995.92, 3344233.25; 403292.55, 

3344087.17; 402583.77, 3343995.19; 

401269.00, 3343995.19; 400971.42, 

3344125.04; 400976.83, 3344206.20; 

401301.47, 3344628.22 

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


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(7) Unit 2: Little Point Clear, Baldwin 

County, Alabama. 

(i) General Description: Unit 2 

consists of 264 acres (106 ha) on the 

Fort Morgan Peninsula in Baldwin 

County, Alabama. This unit 

encompasses essential features of 

Alabama beach mouse habitat north of 

the mean high water line (MHWL) and 

south of the Alabama Department of 

Environmental Management Coastal 

Construction Control Line (as defined in 

Alabama Administrative Code of 

Regulations 335–8–2–0.8) from the 

eastern property boundary of Bay to 

Breakers eastward to the western 

boundary of the Surfside Shores 

subdivision. This unit also includes 

essential features of Alabama beach 

mouse habitat 160 feet south of the 

centerline of Fort Morgan Parkway, from 

the eastern boundary of Bay to Breakers 

east to the western boundary of the 

Surfside Shores subdivision, and 

associated areas as depicted in Map 3 

and the following coordinates. 

(ii) Coordinates: From the Saint 

Andrews Bay USGS 1:24,000 

quadrangle map, Alabama, land 

bounded by the following UTM 16 NAD 

83 coordinates (E,N): 

408673.97, 3345088.73; 408690.96, 

3345050.98; 408964.63, 3345069.85; 

408992.95, 3345115.15; 409098.64, 

3345124.59; 409260.96, 3345071.74; 

409306.26, 3345047.20; 409421.39, 

3345039.65; 409421.39, 3345018.89; 

409839.57, 3345038.68; 410450.38, 

3345133.36; 410638.20, 3345180.70; 

411632.04, 3345331.96; 411819.06, 

3345348.96; 411819.06, 3345276.71; 

411455.65, 3345227.83; 411423.77, 

3345234.20; 411115.62, 3345195.95; 

410735.21, 3345138.57; 410735.21, 

3345117.32; 410129.52, 3345030.18; 

404002.05, 3344787.64; 405929.15, 

3344870.87; 406790.26, 3344915.69; 

406790.26, 3344944.50; 406889.49, 

3344986.11; 406915.10, 3344986.11; 

406947.11, 3344973.31; 406972.72, 

3344998.92; 406998.33, 3344960.50; 

407039.95, 3344973.31; 407065.56, 

3344950.90; 407148.55, 3344960.50; 

407232.02, 3345008.52; 407238.42, 

3345034.13; 407289.64, 3344954.10; 

407918.85, 3345054.48; 408411.28, 

3345026.14; 408414.83, 3345068.65; 

408687.61, 3345125.34; 408723.04, 

3345107.62; 406397.69, 3344654.51; 

407290.11, 3344737.53; 408502.15, 

3344816.39; 408502.15, 3344974.12; 

408369.32, 3344978.29; 408074.61, 

3345003.18; 407842.17, 3344994.88; 

407194.65, 3344878.65; 406327.13, 

3344837.15; 406318.83, 3344720.92; 

406181.85, 3344716.77; 406165.25, 

3344837.15; 404625.30, 3344770.73; 

408639.12, 3344982.42; 408850.81, 

3345011.48, 408850.81, 3344837.15; 

408626.67, 3344828.84; 408904.77, 

3345015.63; 409021.00, 3345003.18; 

409033.45, 3344837.15; 408896.47, 

3344841.30; 410127.40, 3344881.42; 

409955.26, 3344885.67; 409942.50, 

3345003.19; 409321.94, 3344964.94; 

409122.17, 3344994.69; 409122.17, 

3344839.55; 409917.00, 3344856.55; 

411885.04, 3344791.03; 411876.74, 

3344679.42; 411303.93, 3344704.32; 

410054.54, 3344754.13; 410029.64, 

3344741.68; 409992.28, 3344745.83; 

409963.23, 3344758.28; 408879.87, 

3344720.92; 407663.69, 3344658.66; 

407157.29, 3344642.06; 406011.67, 

3344509.23; 405044.53, 3344417.91; 

404700.02, 3344343.20; 404712.47, 

3344496.78 

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


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(8) Unit 3: Gulf Highlands, Baldwin 

County, Alabama. 

(i) General Description: Unit 3 

consists of 388 acres (157 ha) on the 

Fort Morgan Peninsula in Baldwin 

County, Alabama. This unit 

encompasses essential features of 

Alabama beach mouse habitat north of 

the mean high water line (MHWL) to the 

seaward extent of interdunal wetlands 

as depicted in Map 4 and outlined in 

the following coordinates. This unit also 

includes essential features of Alabama 

beach mouse habitat 160 feet south of 

the centerline of Fort Morgan Parkway. 

Unit 3 is bounded to the west by the 

eastern property line of the Morgantown 

subdivision and to the east by the 

western property line of Martinique on 

the Gulf. 

(ii) Coordinates: From the Pine Beach 

and Saint Andrews Bay USGS 1:24,000 

quadrangle maps, Alabama, land 

bounded by the following UTM 16 NAD 

83 coordinates (E,N): 

Surfside Shores—

411884.85, 3344677.70; 411900.69, 

3344899.40; 412122.39, 3344896.76; 

412230.61, 3344952.19; 412407.44, 

3344970.66; 412407.44, 3344997.06; 

413286.34, 3345139.58; 413283.70, 

3344598.52 

Gulf Highlands—

414393.00, 3344536.62; 414393.00, 

3344732.11; 414676.12, 3344736.60; 

414671.63, 3345057.92; 415538.97, 

3345096.12; 415529.98, 3344440.00 

Gulf Shores Plantation—

414204.25, 3344552.35; 414204.25, 

3344725.37; 414343.57, 3344754.58; 

414341.32, 3344543.36 

Cabana Beach—

415938.37, 3344420.63; 415938.37, 

3344937.42; 416333.53, 3344954.65; 

416753.99, 3345042.26; 416756.08, 

3344395.60 

ROW—

411829,54, 3345348.68; 413472.87, 

3345602.80; 413767.66, 3345609.58; 

413781.21, 3345585.86; 414496.15, 

3345582.47; 414760.44, 3345545.20; 

414973.90, 3345460.49; 415278.85, 

3345487.60; 416762.94, 3345548.59; 

416796.82, 3345490.99; 416224.19, 

3345470.66; 415654.96, 3345426.61; 

414973.90, 3345402.89; 414533.42, 

3345521.48; 413621.96, 3345538.42; 

411836.31, 3345284.30 

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


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5542 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Proposed Rules 

(9) Unit 4: Pine Beach, Baldwin 

County, Alabama. 

(i) General Description: Unit 4 

consists of 32 acres (13 ha) on 27 

inholdings within the Perdue Unit of 

the Bon Secour National Wildlife Refuge 

as depicted in Map 5 and described in 

the following UTM coordinates. 

(ii) Coordinates: From the Pine Beach 

USGS 1:24,000 quadrangle map, 

Alabama, land bounded by the 

following UTM 16 NAD 83 coordinates 

(E,N): 

421996.98, 33444458.27; 419890.08, 

3344529.29; 4199446.90, 3344526.92; 

419946.90, 3344389.62; 420406.15, 

3344394.35; 420401.42, 3344342.27; 

419587.07, 3344320.96; 419589.44, 

3344384.88; 419658.09, 3344384.88; 

419655.72, 3344503.25; 419636.78, 

3344503.25; 419639.15, 3344534.02; 

419783.19, 3344531.65; 419783.55, 

3344384.88; 419803.49, 3344384.88; 

421902.28, 3344929.36; 421933.43, 

3344929.36; 421930.69, 3344448.80; 

421895.18, 3344446.43; 421999.34, 

3344917.52; 422030.12, 3344917.52; 

422030.12, 3344465.37; 419800.13, 

3344730.51; 419842.74, 3344730.51; 

419842.74, 3344635.81; 419797.76, 

3344640.55; 419688.86, 3344841.77; 

419740.94, 3344841.77; 419740.94, 

3344751.81; 419688.86, 3344749.44; 

419688.86, 3344645.28; 419743.31, 

3344642.92; 419740.94, 3344593.20; 

419688.86, 3344595.57; 420294.50, 

3345060.66; 420306.84, 3345060.44; 

420306.62, 3345022.12; 420294.28, 

3345022.34; 420148.12, 3344725.77; 

420190.73, 3344725.77; 420188.36, 

3344633.45; 420150.49, 3344633.45; 

420046.32, 3344728.14; 420098.40, 

3344728.14; 420098.40, 3344635.81; 

420046.32, 3344635.81; 420046.32, 

3344567.16; 420058.16, 3344567.16; 

420058.16, 3344545.86; 420003.71, 

3344545.86; 420003.71, 3344638.18; 

419906.65, 3344638.18; 419927.96, 

3344638.18; 419927.96, 3344545.86; 

419906.65, 3344548.22 

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


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(10) Unit 5: Gulf State Park, Baldwin 

County, Alabama. 

(i) General Description: Unit 5 

consists of 190 ac (77 ha) in Gulf State 

Park east of the City of Gulf Shores in 

Baldwin County, Alabama. This unit 

encompasses essential features of 

Alabama beach mouse habitat north of 

the mean high water line (MHWL) to the 

seaward extent of either coastal 

wetlands, maritime forest, or Alabama 

beach mouse habitat managed under the 

2004 Gulf State Park habitat 

conservation plan. Exact boundaries are 

depicted in Map 6 and displayed in the 

following coordinates. 

(ii) Coordinates: From the Gulf Shores 

USGS 1:24,000 quadrangle map, 

Alabama, land bounded by the 

following UTM 16 NAD 83 coordinates 

(E,N): 

438247.09, 3347462.61; 438384.26, 

3347485.47; 438504.29, 3347456.89; 

438738.63, 3347479.75; 438738.63, 

3347411.17; 438681.48, 3347405.45; 

438675.76, 3347193.97; 437681.24, 

3346988.21; 436938.21, 3346702.43; 

436349.50, 3346599.55; 435377.85, 

3346548.11; 435160.66, 3346490.95; 

435166.37, 3346736.72; 435606.47, 

3346856.75; 435623.62, 3346833.89; 

435572.18, 3346731.01; 435629.34, 

3346645.27; 435766.51, 3346696.71; 

436018.00, 3346713.86; 436360.94, 

3346702.43; 436349.50, 3346765.30; 

436218.05, 3346765.30; 436212.33, 

3346799.60; 436572.41, 3346828.17; 

436572.41, 3346913.91; 436881.06, 

3347033.94; 436909.64, 3347068.23; 

437612.66, 3347325.43; 437818.42, 

3347319.72; 437829.85, 3347251.13; 

438035.61, 3347308.29; 438041.33, 

3347394.02 

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


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* * * * * Dated: January 18, 2006. 

Paul Hoffman, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–688 Filed 1–31–06; 8:45 am] 

BILLING CODE 4310–55–C 


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