4330 Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU46 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Alabama Beach Mouse 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are revising 

critical habitat for the Alabama beach 

mouse (Peromyscus polionotus 

ammobates) under the Endangered 

Species Act of 1973, as amended (Act). 

The revised designation encompasses 

approximately 1,211 acres (ac) (490 

hectares (ha)) of coastal dune and scrub 

habitat in Baldwin County, Alabama. 

DATES: This rule becomes effective on 

March 1, 2007. 

ADDRESSES: To review comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this final rule, make an appointment 

during normal business hours with the 

Field Supervisor, Daphne Field Office, 

1208–B Main Street, Daphne, Alabama 

36526. The final rule, economic 

analysis, and maps are also available on 

the Internet at http://www.fws.gov/ 

daphne. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Daphne Field Office, 

U.S. Fish and Wildlife Service, at 

telephone 251–441–5181 or facsimile 

251–441–6222. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act (16 U.S.C. 1531 et 

seq.) 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under the Act’s section 

4(b)(2), there are significant limitations 

on the regulatory effect of designation 

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

(1) Designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would take place (in other words, other 

statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 476 species, or 36 

percent of the 1,311 listed species in the 

United States under the jurisdiction of 

the Service, have designated critical 

habitat. We address the habitat needs of 

all 1,311 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative, 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 

originally proposed for designation, we 

evaluated the benefits of designation in 

light of Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service, 

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

(hereinafter Gifford Pinchot). In that 

case, the Ninth Circuit invalidated the 

Service’s regulation defining 

‘‘destruction or adverse modification of 

critical habitat.’’ In response, on 

December 9, 2004, the Director issued 

guidance to be considered in making 

section 7 adverse modification 

determinations. This critical habitat 

designation does not use the invalidated 

regulation in our consideration of the 

benefits of including areas in this final 

designation. The Service will carefully 

manage future consultations that 

analyze impacts to designated critical 

habitat, particularly those that appear to 

be resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered 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 


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requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

rule. For information on the Alabama 

beach mouse (ABM), please refer to the 

proposed rule published in the Federal 

Register on February 1, 2006 (71 FR 

5516) or the final listing determination 

(June 6, 1985, 50 FR 23872). 

Previous Federal Actions 

Information about previous Federal 

actions for the ABM can be found in our 

proposal for critical habitat for the ABM 

published in the Federal Register on 

February 1, 2006 (71 FR 5516). On 

August 8, 2006, we announced the 

availability of our draft economic 

analysis (DEA), and we reopened the 

public comment period on the proposed 

rule and provided the time, date, and 

location of our public hearing, as well 

as updated acreage for the critical 

habitat units (71 FR 44976). The 

reopened public comment period ended 

on September 7, 2006. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed critical 

habitat revision in the proposed rule 

published on February 1, 2006 (71 FR 

5516) and in our August 8, 2006, 

Federal Register document (71 FR 

44976). We also contacted appropriate 

Federal, State, and local agencies; 

scientific organizations; and other 

interested parties, and invited them to 

comment on the proposed rule. We also 

issued press releases and published 

legal notices in the Press-Register and 

Islander newspapers. Based on 12 

requests received during the public 

comment period, we held a public 

hearing and information meeting on 

August 24, 2006, at the Adult Activity 

Center in Gulf Shores, Alabama. 

During the comment period that 

opened on February 1, 2006, and closed 

on April 3, 2006, we received 13 

comments from organizations or 

individuals directly addressing the 

proposed revised critical habitat 

designation. During the comment period 

that opened on August 8, 2006, and 

closed on September 7, 2006, we 

received 45 comments from 

organizations and individuals directly 

addressing the proposed revised critical 

habitat designation and the DEA. 

Between February 1, 2006, and 

September 7, 2006, we also received 4 

comments from peer reviewers. 

Collectively, 36 commenters supported 

the proposed revised designation, and 

16 opposed the revised designation. Six 

letters were either neutral or expressed 

both support of and opposition to 

certain portions of the proposal. 

Comments received were grouped into 

eight general issues specifically relating 

to the proposed revised critical habitat 

designation and are addressed in the 

following summary and incorporated 

into the final rule as appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), and current Departmental 

guidance, we solicited expert opinions 

from six knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and/or conservation biology 

principles. We received responses from 

four of the peer reviewers. Peer reviewer 

comments are addressed in the 

following summary and incorporated 

into the final rule as appropriate. 

The peer reviewers generally 

concurred with our methods and 

conclusions and provided additional 

information, clarifications, and 

suggestions to improve the final critical 

habitat rule. Three of the four peer 

reviewers specifically stated that 

redesignation of critical habitat to 

include interior scrub habitat is 

warranted. Information provided by 

peer reviewers included suggestions for 

sampling techniques and population 

viability analyses that would better 

inform future ABM conservation efforts, 

as well as comments on how to best 

determine recovery following 

hurricanes. Suggestions were also made 

and language was provided to clarify 

biological information or make the 

proposed rule easier to follow and 

review. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding ABM critical 

habitat, and addressed them in the 

following summary. Several of the peer 

reviewers provided editorial comments 

that are addressed in the body of this 

rule. Minor editorial comments on the 

Background section of the proposed rule 

(not found in final rules) have been 

incorporated into the administrative 

record. 

Specific Peer Reviewer Comments 

(1) Comment: Two peer reviewers 

suggested that the ABM may persist in 

areas outside of its present known 

range, including open, sandy portions of 

Gulf State Park north of the scrub dunes 

and east of Lake Shelby; additional 

scrub habitat within central and 

northern portions of Little Point Clear; 

and sand dunes along the Bon Secour 

National Wildlife Refuge’s (Refuge) 

Sand Bayou Unit. 

Our Response: Section 4 of the Act 

requires that we designate critical 

habitat on the basis of the best scientific 

data available. We agree that the ABM 

may exist in areas outside of its current 

known range. However, we do not have 

trapping data indicating ABM presence 

in these areas at this time. Both Little 

Point Clear and the referenced portions 

of Gulf State Park have been trapped on 

occasion, or subjected to qualitative 

tracking and habitat surveys 

(Sneckenberger 2001, p. 13; Service 

2003, p. 2; Falcy 2006, p. 1). ABM were 

documented in the southern portion of 

Little Point Clear earlier this summer 

(Falcy 2006, p. 1) but not in more 

interior areas. We are aware of one 

qualitative survey in the Sand Bayou 

Unit where no evidence of beach mice 

was encountered (Sneckenberger 2001, 

p. 14). Much of the referenced areas are 

thickly vegetated, contain compacted 

sand, are isolated from existing known 

ABM habitat, do not possess the 

requisite primary constituent elements 

(PCEs) identified in the proposed rule, 

and are therefore not found to be 

essential to the conservation of the 

species at this time. We recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For this reason, critical habitat 

designations do not imply that habitat 

outside the designation is unimportant. 

(2) Comment: One peer reviewer 

stated that it was inadequate to limit 

ABM critical habitat to those areas 

known to be occupied at the time of 

listing since much information has been 

learned about ABM distribution since 

then. 

Our Response: Critical habitat is 

defined in section 3 of the Act as: (i) The 

specific areas within the geographical 

area occupied by a species, at the time 

it is listed in accordance with the Act, 

on which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) that 

may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by a species at the time 


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it is listed, upon a determination that 

such areas are essential for the 

conservation of the species. For the 

purposes of this designation, we 

considered all frontal dunes within the 

proposed units to be occupied at the 

time of listing. Since the ABM was 

listed, we have learned that scrub 

habitat is also occupied by the 

subspecies and is especially important 

to beach mouse conservation during and 

after hurricane events (Swilling et al. 

1998, pp. 294–296; Sneckenberger 2001, 

p. 18). Scrub habitats were included in 

the designation if they are presently 

occupied, support a core population of 

beach mice, and are now found to be 

essential to the conservation of the 

subspecies (contain PCEs 3 or 4 or both 

and are not highly fragmented, 

degraded, or isolated). Areas where 

mice may exist, but are undocumented, 

or areas where mice have been captured 

but that do not possess one or more of 

the PCEs or that we have determined 

not to be essential to the conservation of 

the species, were not included in the 

designation. 

(3) Comment: One peer reviewer 

questioned whether there were 

references indicating the PCEs are an 

appropriate and adequate means to 

evaluate essential requirements for 

species. 

Our Response: PCEs are those 

physical and biological features that are 

essential to the conservation of the 

species, and within areas occupied by 

the species at the time of listing, that 

may require special management 

considerations and protection. Such 

requirements include: (1) Space for 

individual and population growth and 

for normal behavior; (2) food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and (5) 

habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distributions of a species. Our 

knowledge of these requirements for the 

ABM is not absolute, but research and 

practical experience do provide us with 

information on physical and biological 

needs of the subspecies. 

Frontal dunes have been recognized 

as being essential to the conservation of 

the species since the earliest beach 

mouse research (Bangs 1898, pp. 195–

200; Howell 1921, p. 239; Howell 1909, 

p. 61; Blair 1951, p. 21; Pournelle and 

Barrington 1953, pp. 133–134; Bowen 

1968, p. 4), and were the main habitat 

type represented in the original critical 

habitat designation (June 6, 1985, 50 FR 

23872). Trapping data continue to 

illustrate the importance of frontal 

dunes to ABM (Rave & Holler 1992, p. 

248; Service 2003, pp. 1–3; Service 

2004, p. 16), and therefore they are 

included in our PCEs (PCEs 1 and 2). 

Recent research, however, has 

illustrated that beach mice use interior 

scrub habitat on a permanent basis, and 

that this habitat serves an invaluable 

role in the persistence of beach mouse 

populations during and after storm 

events (Swilling et al. 1998, pp. 294–

296; Sneckenberger 2001, p. 18). The 

importance of high-elevation scrub 

habitat to ABM is reinforced by our 

observations of suitable ABM habitat 

distribution and trapping records 

following hurricanes Ivan (2004) and 

Katrina (2005) (Service 2004, pp. 9–10; 

Service 2005a, pp. 10–13). Therefore, 

we incorporated high-elevation scrub 

habitat into the PCEs (PCEs 1 and 3). 

General research supports the 

effectiveness of biological corridors 

(Beier and Noss 1998, p. 1241), and 

recent population viability analysis 

work (Traylor-Holzer et al. 2005; 

Traylor-Holzer 2005, pp. 51–57; 2005b, 

pp. 29–30; Reed & Traylor-Holzer 2006, 

pp. 21–22), general observations (for 

example, extirpation of various ABM 

populations in Gulf State Park 

(Holliman 1983, pp. 125–126; Service 

2005, pp. 6–9), and the City of Orange 

Beach (Endangered Species Consulting 

Services 2001, pp. 1–3) suggest the 

importance of functional pathways for 

ABM. Based on this information, habitat 

connectivity was prominently featured 

in the PCEs (PCEs 1 and 4). 

Anthropogenic disturbances in the form 

of artificial lighting (Bird et al. 2004, p. 

1435) and the support of nonnative 

predator populations (such as feral cats) 

(Linzey 1978, p. 20; Holliman 1983, p. 

128) are known to adversely affect beach 

mice. We incorporated these issues into 

PCEs 1, 2, and 5. Please refer to the 

‘‘Primary Constituent Elements’’ section 

for full description of PCEs. 

In summary, we based the PCEs on 

the best available information of the 

physical and biological needs of the 

subspecies. Using the PCEs, we have 

identified lands containing all beach 

mouse habitat types, lands that provide 

only frontal dunes, lands that provide 

only scrub dune habitat, lands that serve 

to preserve functional connections 

between these habitat types, and lands, 

within the coastal dune ecosystem, that 

maintain a natural light regime. We 

believe that these PCEs are based upon 

the best available science, capture those 

physical and biological features 

essential to the conservation of the 

species, and represent a substantial 

improvement over PCEs from the 

original designation. We believe these 

PCEs are an appropriate and adequate 

means to evaluate essential ABM habitat 

requirements. 

(4) Comment: One peer reviewer 

suggests that we should better describe 

the effects of disturbance along the 

utility line corridor within the S.R. 180 

(Fort Morgan Road) right-of-way (Unit 2 

description, 71 FR 5516, February 1, 

2006, p. 5526) to avoid the 

misinterpretation that all disturbance is 

beneficial to ABM. 

Our Response: We agree and have 

addressed this in the discussion of Unit 

2 below (see Unit Descriptions section). 

(5) Comment: One peer reviewer 

suggests that feral cats should be listed 

as threats requiring special management 

consideration or attention in all units. 

Our Response: Feral cats were 

originally listed as threats in Units 2 

and 5. Although we agree that the 

potential for feral cat problems exists 

throughout the known range of the 

ABM, the special management required 

under critical habitat addresses threats 

to habitat. Therefore, control of feral 

cats is not specifically mentioned in this 

designation as a threat requiring special 

management consideration or attention. 

Currently, control of cats is required in 

all incidental take permits involving 

ABM, and feral cats will continue to be 

managed as part of our efforts towards 

conservation of the ABM. 

(6) Comment: One peer reviewer 

suggests that the proposal may 

underemphasize the importance of noncontiguous habitat because dispersal 

likely occurs through inhabitable as 

well as uninhabitable habitat. 

Our Response: The Act requires us to 

designate critical habitat on the basis of 

the best scientific data available. ABM 

have been trapped in a variety of habitat 

types including primary and secondary 

dunes, scrub habitat, immediately 

adjacent to ephemeral wetlands, and 

along sparsely vegetated sand flats 

associated with roadway rights-of-way 

(Service 2003, p. 2; Farris 2003). With 

our designation, we have included all of 

these habitat types, and attempted to 

maintain connectivity between them. 

Neither information in our files nor 

published literature supports other 

habitat types as being essential to the 

conservation of the ABM. ABM may use 

uninhabitable habitat such as lawns, 

maritime forest, and permanent 

wetlands for dispersal, but we do not 

have evidence of this at this time. These 

habitat types therefore do not meet the 

requirements needed to be included in 

the critical habitat designation. We 

recognize that designation of critical 

habitat may not include all of the 

habitat areas that may eventually be 


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Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 4333 

determined to be necessary for the 

recovery of the species. Critical habitat 

designations therefore do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

(7) Comment: One peer reviewer 

stated (in reference to a comment in the 

proposed rule, 71 FR 5516; February 1, 

2006; p. 5521) that Oli et al. (2001) did 

not provide any data supporting the 

value of multiple populations. 

Our Response: Oli et al. (2001) 

performed a population viability 

analysis for four distinct populations of 

beach mice, two of which were ABM 

populations (Fort Morgan and Perdue 

Units of the Refuge). Their results 

indicated that even the Perdue Unit 

population (the most robust) was 

susceptible to extirpation when impacts 

from catastrophic events, such as 

hurricanes, are considered (p. 114). 

Later in the document, they addressed 

the importance of multiple populations 

for beach mouse conservation and 

warned against additional fragmentation 

of habitat (pp. 116–117). While this 

work was a population viability analysis 

that must be viewed with the 

appropriate caveats (for example, Reed 

et al. 1998), we believe that it 

emphasizes the importance of multiple 

core populations and habitat continuity. 

(8) Comment: One peer reviewer, 

referring to the proposed rule (71 FR 

5516; February 1; p. 5517), stated that 

Rave and Holler (1992) did not address 

time of activity, burrow location, or 

feeding habits of ABM. This reviewer 

suggested Bowen (1968) or Garten 

(1976) as better references. 

Our Response: We concur with this 

comment. Bowen (1968, pp. 2–4), 

Sneckenberger (2001, pp. 51–52), Lynn 

(2000, pp. 30–33), and Moyers (1996, 

pp. 2, 25–26, 29) all serve as better 

references and collectively describe 

time of activity, burrow location, and 

feeding habits of beach mice. We have 

corrected our references. On the other 

hand, Garten (1976), addresses 

aggressive behavior in inland subspecies 

of Peromyscus polionotus and is, 

therefore, not applicable. 

(9) Comment: Three peer reviewers 

and several commenters expressed 

concerns over the exclusion of areas 

under ABM habitat conservation plans 

(HCPs) from the proposal. Many 

suggested that HCPs are often 

inadequate, are subject to frequent 

violations, and/or are less protective 

than critical habitat. 

Our Response: Private lands may be 

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

Act if the benefits of exclusion outweigh 

the benefits of inclusion. In our view, 

legally operative HCPs covering the 

species, or draft HCPs that cover the 

species and have undergone public 

review and comment (pending HCPs), 

meet this criterion. The HCPs provide 

assurances that the conservation 

measures they outline will be 

implemented and effective, and the 

designation of critical habitat provides 

no additional benefits in these areas 

(species and their habitat are protected 

by the conditions of the incidental take 

permit (ITP) and section 9 of the Act). 

There are 51 areas currently under 

HCP ITPs collectively containing 261 ac 

(105 ha) of habitat we have identified as 

essential to ABM conservation (see 

Table 2). During HCP development, we 

worked with all property owners to 

ensure that ABM impacts were avoided, 

minimized, or mitigated to the 

maximum extent practicable. Property 

owners with HCPs have indicated that 

they intend to abide by their plan and 

those with Service-issued ITPs based on 

the HCP are required to comply with the 

ITP. All permits and plans require 

controlling of cats and refuse, planting 

with native vegetation, minimizing 

developed footprints, and protecting 

habitat outside of approved footprints. 

In addition, many of the ITPs require 

seasonal ABM monitoring, the 

development of ABM interpretive 

materials, and the establishment of 

endowments for habitat restoration. The 

conditions of the ITPs are legally 

enforceable, and, therefore, ABM and 

their habitat are protected by section 9 

of the Act. Critical habitat has no 

additive value in this situation. In fact, 

critical habitat, often incorrectly 

perceived to preclude development, can 

adversely affect existing conservation 

relationships. We, therefore, have found 

that the benefit of excluding areas 

covered by HCPs on 51 properties 

outweighs the benefit of including these 

properties in the final designation. 

Please see the ‘‘Application of Section 

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

Under Section 4(b)(2) of the Act’’

section for a more thorough discussion 

of HCP sites and critical habitat. 

(10) Comment: One commenter, 

referring to information presented in the 

background section of the proposed rule 

(71 FR 5516, 5518, and elsewhere), 

stated that there are no known 

benchmarks for monitoring ABM 

recovery because the habitat is always 

in a state of flux due to hurricane 

impacts. The commenter suggested 

using pre-Ivan ABM populations to 

gauge ABM recovery. 

Our Response: ABM habitat is 

continually changing as a result of 

coastal processes and impacts from 

tropical cyclones. The Service 

conducted extensive live-trapping 

throughout the suspected range of the 

subspecies in 2003 (the year prior to 

Hurricane Ivan) and found ABM in 

areas where they had never been 

recorded (Service 2003, pp. 1–3; Farris 

2003, pp. 1–5). These trapping data led 

us to produce the ABM habitat maps 

(discussed in detail in Comment 13) and 

will be useful in our ongoing review of 

the recovery needs of the subspecies. 

(11) Comment: One commenter, 

referring to the information presented in 

the background section of the proposed 

rule (71 FR 5516; February 1, 2006; p. 

5522), stated that they were not aware 

of data supporting the formal definition 

of ABM population cycles beyond the 

seasonal variation that occurs on an 

annual basis. 

Our Response: We concur with this 

statement, and it was our intent to 

provide evidence for the existence of 

seasonal population cycles in the 

proposed rule. Rave and Holler (1992, 

pp. 351–352) describe the seasonal 

variation in ABM populations at the 

Perdue and Fort Morgan Units of the 

Bon Secour National Wildlife Refuge, 

and Sneckenberger (2001, pp. 48–51) 

describes the seasonal availability of 

ABM food sources in the primary and 

secondary dunes. ABM populations 

likely fluctuate over a longer temporal 

period in response to tropical storms 

and hurricanes, but this has never been 

described in the literature to our 

knowledge. 

General Comments 

Comments Related to Regulatory Burden 

and Private Property Concerns 

(12) Comment: Several commenters 

feel that the proposed critical habitat 

designation is a violation of their 

property rights. One commenter 

mentioned that critical habitat 

represents ‘‘condemnation without 

compensation’’ and believes that if land 

is designated, it cannot be developed. 

Our Response: Critical habitat does 

not mean that private lands would be 

taken by the Federal government or that 

reasonable uses would be restricted. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. A critical 

habitat designation has no effect on 

situations where a Federal agency is not 

involved—for example, a landowner 

undertaking a project on private land 

that involves no Federal funding or 

permit. The Act only requires a 

consultation if there is a Federal 

nexus—that is, any activity a Federal 

agency funds, authorizes, or carries out 

that may jeopardize the survival of a 

threatened or endangered species. The 


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designation is a reminder to Federal 

agencies that they must make special 

efforts to protect the important 

characteristics of these areas. It does not 

allow government or public access to 

private lands. We evaluated this rule in 

accordance with Executive Order 12630, 

and we believe that this critical habitat 

designation for the ABM will not have 

significant takings implications. We do 

not anticipate that property values, 

rights, or ownership will be 

significantly affected by the critical 

habitat designation. We determined that 

the designation would result in little 

additional regulatory burden above that 

currently in place, as the subspecies is 

already federally listed and the areas 

designated are already occupied by the 

subspecies. Examples of projects that 

have received permits within critical 

habitat include two single-family homes 

in the Cabana Beach subdivision and 

the proposed Gulf State Park hotel and 

convention center. We have also 

conducted consultations on beach 

nourishment projects and boardwalk 

construction within designated critical 

habitat. In all of these instances, we 

were able to work with applicants and 

Federal agencies to ensure that projects 

are completed while still conserving 

critical habitat and the ABM. 

(13) Comment: Several commenters 

expressed confusion between the ABM 

habitat maps (also known as blue maps) 

and critical habitat. 

Our Response: In November 2003, 

after habitat assessments and an 

extensive review of trapping data and 

aerial photography, the Service 

completed ABM habitat maps. These 

maps, which currently depict 2,544 ac 

(1,030 ha) of potential ABM habitat, 

were used to show the public and local, 

State, and Federal agencies those areas 

that may be occupied by ABM, and 

therefore, to indicate where consultation 

may be required for Federal actions or 

incidental take permits may be 

recommended for private interests. 

These maps were made available to the 

general public and are on display at the 

City of Gulf Shores Public Works 

Department, the headquarters of the Bon 

Secour National Wildlife Refuge, and 

the Daphne Field Office. They show 

areas with ABM habitat (where 

incidental take may occur) and were 

generated by the Service at our own 

discretion. 

The maps associated with this 

designation are part of a separate action. 

When the ABM was listed, we 

designated approximately 1,034 ac (418 

ha) of critical habitat, spread into three 

zones: (1) Areas south of State Road (SR) 

180 in the Fort Morgan State Historic 

Site and some adjacent private land, (2) 

areas 500 feet (ft) (150 meters (m)) 

inland from mean high tide from Kiva 

Dunes east to Laguna Key, including 

portions of the Bon Secour NWR, and 

(3) areas south of S.R. 182 in Gulf State 

Park. We are now revising critical 

habitat as a result of a December 2004 

declaration filed with the U.S. District 

Court for the Southern District of 

Alabama (see ‘‘Previous Federal 

Actions’’ above). The revised critical 

habitat designation identifies the subset 

of ABM habitat as depicted in the 2003 

habitat maps that has those features 

that, according to the best available 

science, we have found to be essential 

to the conservation of the species. 

(14) Comment: Several commenters 

asked what additional requirements 

designated critical habitat placed on 

individuals seeking ITPs under the Act. 

Our Response: ABM are protected 

from take (by section 9 of the Act) and 

by consultation with Federal agencies 

on Federal actions (under section 7 of 

the Act), regardless of whether critical 

habitat is designated. When critical 

habitat is designated, Federal agencies, 

through the section 7 consultation 

process, must also consult with the 

Service on actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. For each 

section 7 consultation, we already 

review the direct and indirect effects of 

the proposed projects on the beach mice 

and currently designated habitat, and 

will continue to do so for revised 

critical habitat. A critical habitat 

designation does not create a separate 

process, and timelines do not change. 

Our assessment of impacts to habitat 

is nothing new. In fact, we track the take 

of ABM through the loss of habitat and 

have always done this, even in areas 

outside of the original critical habitat 

designation, through the use of our 

ABM habitat maps (see Comment 13). 

(15) Comment: One commenter asked 

if designation of critical habitat would 

preclude an individual from 

reconstructing or repairing a house 

following hurricanes. 

Our Response: Just as with previous 

storms, homeowners can rebuild their 

structures within their previous 

footprints without the need for 

consultation, permits, or mitigation. If a 

homeowner wishes to expand the 

footprint of the structure during the 

rebuild and this will impact previously 

undeveloped ABM habitat, we 

recommend that the homeowner apply 

for an ITP (regardless of whether the 

ABM habitat is designated critical). 

Please contact the Daphne Field Office 

(see ADDRESSES or FOR FURTHER

INFORMATION CONTACT) for more 

information on ITPs and HCPs. 

(16) Comment: One commenter asked 

what would happen if a lot owner had 

received a ‘‘clearance’’ letter from the 

Service stating that no ITP was required 

but then has his or her property 

designated as critical habitat. 

Our Response: Landowners requesting 

technical assistance from the Service 

may receive such a letter if review of 

their project by Service personnel 

(either through on-site or in-house 

investigation) determines that the parcel 

falls outside the boundaries of potential 

ABM habitat (see Comment 13 for more 

discussion on ABM habitat mapping). 

When areas are investigated and found 

to not contain ABM habitat, they are 

removed from our ABM habitat maps. 

Because the proposed critical habitat 

was based on these ABM habitat maps, 

it is not likely (though not impossible) 

that lots with clearance letters appeared 

in the proposed designation. If a lot 

with a clearance letter does appear, it 

may have been an error, and we 

recommend that the homeowner contact 

the Daphne Field Office (see 

ADDRESSES). 

(17) Comment: One commenter 

questioned why the Service is 

designating critical habitat when we 

admit that we have found it to be of 

little value. 

Our Response: While attention to and 

protection of habitat are paramount to 

successful conservation actions, the role 

that designation of critical habitat plays 

in protecting the habitat of listed species 

is often misunderstood. A designation of 

critical habitat does not create a 

preserve or refuge. It does not mandate 

funding for habitat protection or 

restoration. It simply requires that 

Federal agencies consult with the 

Service on actions that could adversely 

modify or destroy designated critical 

habitat. Federal agencies are already 

required to consult with the Service on 

proposed actions that may adversely 

affect or jeopardize threatened and 

endangered species, regardless of 

whether or not there is critical habitat. 

Furthermore, we monitor the health of 

ABM populations through the loss of 

habitat, regardless of whether or not that 

habitat is designated as critical. Critical 

habitat does provide some nonregulatory benefits to the species by 

informing the public of areas that are 

important for species recovery and 

where conservation actions would be 

most effective. However, because of the 

enormous time, cost, complexity, and 

potential for controversy associated 

with critical habitat, we have found that 

there is much more value to directing 

limited conservation monies to listing 

new species under the Act, and 

developing cooperative agreements to 


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protect them. We have been inundated 

with lawsuits for our failure to designate 

critical habitat and face a growing 

number of lawsuits challenging our 

designations. This revision of critical 

habitat was brought about by a petition 

to revise critical habitat and subsequent 

legal action. This cycle appears endless 

and keeps us from focusing scarce 

conservation resources where they are 

most needed. Nonetheless, under 

section 4(a) of the Act, we are required 

to designate critical habitat concurrently 

with listing a species as endangered or 

threatened to the maximum extent 

prudent and determinable. 

(18) Comment: One commenter said 

that the Service was wrong in saying 

that a clear ‘‘Federal nexus’’ (71 FR 

5516, 5530) exists on HCP/ITP sites. The 

commenter maintains that the only 

Federal involvement that remains is the 

Service’s ability to enforce ITP 

conditions. 

Our Response: We used the term 

nexus (a synonym for connection or 

link) to demonstrate that once ITPs are 

issued, the Service is still involved in 

monitoring permittee compliance with 

permit terms and conditions on sites 

and retains the ability to enforce ITP 

conditions. We have rewritten this text 

and omitted the term nexus, which is 

frequently used in section 7 

consultations, to avoid any further 

confusion. 

(19) Comment: One commenter stated 

that the habitat for this species is under 

such pressure that, unless regulations 

protect habitat, it is likely that the 

subspecies will decline. 

Our Response: We acknowledge that 

loss and fragmentation of habitat is one 

of the main threats to ABM (71 FR 5516; 

February 1, 2006; p. 5518). Please refer 

to our response to Comment 17 for more 

information on the regulatory value of 

critical habitat. 

Specific Comments Related to Suggested 

Alternatives to Designating Critical 

Habitat 

(20) Comment: Several commenters 

believe that the Federal government 

presently owns sufficient habitat for 

ABM survival and recovery. 

Our Response: We have determined 

that 2,281 ac (923 ha) of land are 

essential to ABM conservation. Roughly 

50 percent of this is public land owned 

by the Federal government. The 

majority of this (47 percent) is owned by 

the Service and located on the Perdue 

Unit of Bon Secour National Wildlife 

Refuge, but lesser amounts include 

approximately 30 ac (12 ha) of Refuge 

land within Fort Morgan State Historic 

Site and Bureau of Land Management 

(BLM) properties spread throughout the 

middle of the Fort Morgan Peninsula. 

ABM habitat in the Perdue Unit does 

not meet the definition of critical habitat 

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

it is protected under the Refuge’s 

Comprehensive Conservation Plan (see 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section for 

more details). The remainder of the 

Federal lands identified as essential to 

the conservation of the species are 

included as critical habitat. 

Of the various federally owned 

parcels on the Fort Morgan Peninsula, 

the Perdue Unit is the only Federal land 

containing all of the PCEs. It likewise 

sustains an ABM population. However, 

the Perdue Unit is just one of several 

ABM populations, and many studies 

indicate the importance of multiple 

populations to species recovery. 

Conservation of a species over a range 

of habitat types where it is known to 

occur reduces the chance of losing 

disjunct populations, which represent 

important conservation value for their 

adaptation to local environmental 

conditions and their genetic uniqueness 

(Fahrig and Merriam 1994, p. 50). 

Preservation of natural populations 

throughout the range of each subspecies 

is therefore crucial, as the loss of a 

population of beach mice can result in 

a permanent loss of alleles (Wooten & 

Holler 1999, p. 17). This loss of genetic 

variability cannot be regained through 

translocations or other efforts. 

We believe that private lands are 

essential to the conservation of multiple 

populations and therefore essential to 

conservation of the subspecies. Two 

population viability analyses conducted 

on the ABM support this theory. Oli et 

al. (2001, pp. 113–114) suggest that 

when hurricanes are considered, even 

the stable ABM population at the 

Perdue Unit is at ‘‘substantial risk.’’ A 

Population Viability Analysis (PVA) 

conducted by the Conservation Breeding 

Specialist Group (Vortex model) 

likewise shows the importance of both 

total overall habitat, and habitat 

continuity. Without dispersal among 

public lands through private lands, the 

PVA results project the ABM to have a 

41.2 percent ± 1.1 percent likelihood of 

extinction (Traylor-Holzer 2006, p. 20). 

If all privately owned habitat between 

the public lands is lost, the estimate of 

probability of extinction increases 

(Traylor-Holzer 2006, p. 20). There are 

many limitations with population 

viability analyses, and we must view 

estimates of extinction probability with 

caution (Reed et al. 2006; Morris and 

Doak 2002, pp. 12–13). However, we 

believe that these estimates emphasize 

the importance of core populations and 

habitat continuity. This maintenance of 

both core populations and habitat 

continuity would not be possible 

without the conservation of habitat on 

private lands connecting the various 

federally owned properties. 

(21) Comment: Several commenters 

suggested that the ITPs issued to Beach 

Club West and Gulf Highlands 

developments (but currently held in 

abeyance) should have been excluded 

either because they do not meet the 

definition of critical habitat in 3(5)(A) or 

they are eligible for exclusion under 

4(b)(2). 

Our Response: These developments 

have been excluded from the final 

designation of critical habitat under 

section 4(b)(2) of the Act based on their 

conservation efforts (including the 

habitat conservation plan). Please see 

the ‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section for 

more information. 

(22) Comment: One commenter 

questioned why the areas south 

(seaward) of ADEM’s Coastal 

Construction Control line (CCCL) were 

not excluded because of the baseline 

protections. 

Our Response: While it is true areas 

seaward of the CCCL receive protection 

from the State, they do not qualify for 

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

Act. There is no species-specific 

management plan addressing ABM 

issues (see Comment 2 or ‘‘Application 

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

the Act’’ section for more information 

on these criteria). Furthermore, many 

threats to beach mouse conservation, 

including artificial lighting and 

extensive recreational pressure, still 

persist there. Therefore, these areas have 

been included as critical habitat. 

(23) Comment: Two commenters 

suggested that the Service should 

designate only the conservation areas of 

sites with a Service-approved HCP. 

Our Response: If an area meets our 

criteria for designating ABM critical 

habitat (see Comment 2), then it is 

eligible for inclusion in critical habitat. 

If the area is covered by a Serviceapproved HCP, then it may be removed 

from the designation under section 

4(b)(2) of the Act if we determine that 

the benefits of excluding HCPs outweigh 

the benefits of inclusion (see Comment 

2 and ‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section). 

Developed areas (for example, building 

footprints and parking areas) associated 

with the HCP do not possess natural 

ABM habitat and are, therefore, not even 

considered for designation. As such, it 

is specifically the conservation areas 

associated with HCPs that are excluded 

under section 4(b)(2). 


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(24) Comment: Several commenters 

noted that the French Caribbean 

development was not mentioned as 

critical habitat and maintain that it is 

eligible for exclusion under 4(b)(2) of 

the Act. 

Our Response: The Service completed 

a formal consultation under section 7 of 

the Act on January 20, 2000, with the 

U.S. Army Corps of Engineers 

(USACOE) for the French Caribbean 

resort. We issued an incidental take 

exemption for all ABM within a 3.7 acre 

project impact area. The wetland fill 

permit issued for this project expired in 

2005. However, the developers of Beach 

Club West and Gulf Highlands have 

agreed not to pursue this project, and 

the French Caribbean site will now be 

part of the conservation area in their 

HCP. It is being excluded under section 

4(b)(2) of the Act (see ‘‘Application of 

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

Act’’ section for more details). 

(25) Comment: One commenter 

suggested that conservation efforts 

should be voluntary and involve 

partnerships instead of designating 

lands as critical habitat. 

Our Response: The Service 

encourages voluntary conservation 

efforts and partnerships that would 

provide management or enhancement of 

habitat for threatened and endangered 

species. However, designation of critical 

habitat does not influence the extent of 

conservation efforts recommended for 

endangered species habitat on public 

lands. One benefit of the critical habitat 

designation process is the increased 

awareness to the public of the 

importance that public lands have for 

the species. This often leads to 

constructive interagency discussions, 

creative solutions to public use and 

habitat management issues, and 

strengthened partnerships. 

(26) Comment: One commenter 

suggested that the proposed rangewide 

HCP with the City of Gulf Shores should 

be excluded from critical habitat under 

section 4(b)(2) to promote regulatory 

certainty and cooperative conservation. 

Our Response: The State of Alabama 

was awarded monies under our Habitat 

Conservation Planning grants program 

to develop, in conjunction with the 

Service, a rangewide HCP for singlefamily home and duplex developments. 

The funds were provided to the City of 

Gulf Shores. This HCP is still in draft 

form and has not yet undergone public 

review. The draft HCP could potentially 

cover all future single-family and 

duplex projects on the Fort Morgan 

Peninsula (approximately 700 lots), and 

would substantially streamline the 

HCP–ITP process for this class of 

development. Existing landowners, and 

those wishing to add to their houses, 

would also be eligible for inclusion. 

Upon signing a certificate of inclusion 

into the rangewide program, landowners 

would be required to pay a one-time 

conservation fee that would apply 

towards ABM conservation projects 

such as cogongrass (Imperata cylindrica) 

removal or the construction of 

boardwalks. The rangewide HCP would, 

therefore, provide more mitigation 

funding and options than traditional, 

individual ITPs. 

While we acknowledge the City of 

Gulf Shores’ efforts in developing this 

draft plan, we are unable to exclude it 

from critical habitat at this time for two 

reasons: (1) The plan has not yet been 

completed or undergone public review 

and (2) enrollment in the plan is 

voluntary, and there is, therefore, no 

way to know which landowners will 

choose to enroll (this is further 

complicated by areas having the 

potential to be rezoned to higher density 

development). The designation of 

critical habitat should not jeopardize the 

development of the rangewide HCP. The 

Service, in conducting its biological 

review of the rangewide HCP, will 

simply have to determine if the 

proposed project will adversely modify 

or destroy designated critical habitat. 

We already have to determine whether 

or not the project will adversely affect 

or jeopardize the ABM, an action 

informed by analyzing impacts to ABM 

habitat, regardless of whether or not 

critical habitat is designated. We look 

forward to continuing our conservation 

relationship (and HCP–ITP streamlining 

efforts) with the City of Gulf Shores and 

working with it to ensure that the 

rangewide HCP does not adversely 

modify critical habitat. 

(27) Comment: One commenter 

suggested that the Service develop a 

procedure for exempting (excluding) 

future HCPs from designated critical 

habitat. 

Our Response: Critical habitat is a 

rulemaking process, and any future 

changes to critical habitat would 

involve additional rulemaking. Because 

this is expensive and consumes large 

amounts of already limited staff time, it 

is not practical to exclude every future 

approved HCP case by case. We can 

only exclude those properties that meet 

our standards for either exemption or 

exclusion under 3(5)(A) or 4(b)(2) of the 

Act before the publication date of this 

final rule. 

(28) Comment: One commenter stated 

that the failure to exclude areas from 

critical habitat will result in a more 

onerous (and far less effective) Act by 

damaging relationships between the 

Service and the public and imposing 

unnecessary regulation. 

Our Response: We agree that critical 

habitat is often misunderstood and 

results in controversy (see our response 

to Comment 17). However, we will 

continue to work with the general 

public and affected agencies to recover 

the ABM and assist landowners with the 

environmental review of their projects 

to the best of our ability. We are 

excluding 51 areas covered by HCPs–

ITPs from this designation (see response 

to comment 9 and the ‘‘Application of 

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

Act’’ section). 

Comments Related to Criteria and 

Methods Used To Designate Critical 

Habitat 

(29) Comment: One commenter stated 

that the designation appears arbitrary 

and questions how areas were selected 

for designation. 

Our Response: We began our 

designation by determining those areas 

known to be occupied by the species at 

the time of listing and those found to be 

occupied since listing. This was 

determined by consulting live-trapping 

data, published literature, the original 

listing rule, and our ABM habitat map 

(see response to Comment 13). Within 

these areas, we then determined the 

subset of acreage that possessed one or 

more of the PCEs. This was determined 

through site visits, the review of 2001 

and 2005 aerial photography, LIDAR 

topographic data, and hurricane storm 

surge models. We then removed any 

areas that were highly isolated, 

fragmented, or degraded. After this, we 

were left with 2,281 ac (923 ha) of ABM 

habitat considered to be essential to the 

conservation of the subspecies. After 

removing areas that do not meet the 

definition of critical habitat under 

section 3(5)(A) of the Act because 

special management is not needed, or 

that are eligible for exclusion under 

section 4(b)(2), we arrive at the current 

designation of 1,211 ac (490 ha) of 

critical habitat. Please see the ‘‘Criteria 

Used To Identify Critical Habitat’’

section for more information. Please 

note that not all ABM habitat meets 

these criteria. Many areas that are small 

and isolated (for example, along S.R. 

180 north of the Perdue Unit), degraded 

by anthropogenic disturbances such as 

gravel contamination, are highly 

fragmented or have light pollution (for 

example, areas in the Little Point Clear 

Unit between the S.R. 180 corridor and 

the CCCL line) may contain mice, but 

may be population sinks and therefore, 

do not have the features that are 

essential to the conservation of the 

species. We are identifying the subset of 


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ABM habitat that is truly essential to the 

continued survival and conservation of 

the subspecies. 

(30) Comment: One commenter stated 

that the proposed critical habitat seems 

to be based on the Vortex population 

viability analysis conducted for the 

subspecies, which has problems, 

including an unrealistically high 

estimated probability of persistence. 

Our Response: Our criteria for 

deciding what areas would be included 

in the designation did not involve the 

Vortex model directly, but rather an 

analysis of trapping records in 

conjunction with mapping tools (please 

see previous comment). However, the 

results from Vortex, coupled with other 

PVAs (Oli et al. 2001) and published 

literature, led us to incorporate habitat 

continuity into the designation. 

(31) Comment: Two commenters 

questioned how the exclusion of habitat 

on the Refuge will not result in the 

extinction of the subspecies. 

Our Response: In the proposed rule, 

we stated that approximately 1,063 (420 

ha) of ABM habitat on the Perdue Unit 

of the Refuge was essential to ABM 

conservation, but did not meet the 

definition of critical habitat under 

section 3(5)(A) of the Act (71 FR 5516, 

5529). We have reduced this area to 807 

ac (327 ha) based on new tracking 

(Leblanc D., Service, Personal 

Communication 2006) and trapping 

(Falcy 2006) data, detailed review of 

2005 aerial photography, and 

subsequent site visits. Much of the 

northwestern Perdue Unit is densely 

vegetated and highly fragmented by 

wetlands and cannot be considered 

essential to ABM conservation at this 

time. The 807 acres (327 ha) that we 

identified as essential to the 

conservation of the species simply do 

not meet the definition of critical habitat 

under 3(5)(A) of the Act. These areas are 

part of a National Wildlife Refuge that 

manages specifically for ABM 

conservation, and therefore do not 

require special management 

considerations or protection. They are 

available for ABM conservation in 

perpetuity, and their exemption from 

critical habitat has no bearing on the 

continued survival and recovery of the 

species. 

(32) Comment: Several commenters 

maintained that more habitat needs to 

be included, or that conservation is not 

just described in the Act as protecting 

the status quo but as eventually 

removing the subspecies from the list 

(recovery). 

Our Response: Through this critical 

habitat revision, we have identified all 

of the areas that we believe, according 

to the best available science at this time, 

have the features that are essential to the 

conservation of the species or, for areas 

not occupied at the time of listing, that 

are essential to the conservation of the 

species. These areas total 2,281 acres. Of 

this acreage, we are designating those 

areas that meet the definition of critical 

habitat (see Comment 2) and that are not 

protected by secure habitat conservation 

plans. Some areas that are occupied by 

ABM are not included in the 

designation. These areas do not meet the 

criteria for inclusion and, therefore, do 

not have the features that are essential 

to the conservation of the species. The 

designation, when combined with ABM 

habitat on the Perdue Unit of the Refuge 

and the areas excluded because of 

conservation plans, represents the best 

remaining coastal dune and scrub 

habitat in coastal Alabama, and those 

areas that contain the physical and 

biological features essential to the 

conservation of the subspecies. 

(33) Comment: Several commenters 

requested that we remove our statement 

that ‘‘a benefit of excluding HCPs is to 

promote additional conservation 

agreements and actions that we would 

not be able to achieve without our 

partners.’’

Our Response: We believe this 

statement to be true. There is no need 

to designate areas that are included in 

an HCP that provides conservation 

benefit to the species. The designation 

of critical habitat serves no additive 

value and can damage existing 

relationships between the permittee and 

our agency. 

(34) Comment: One commenter 

questioned why only a small subset of 

the acreage identified as ABM habitat is 

being designated as critical habitat. 

Our Response: Not all areas where 

ABM have been captured meet our 

criteria for inclusion into the 

designation. Please refer to Comments 

13 and 29 for more information. 

(35) Comment: One commenter 

maintains that critical habitat was 

designated south of the CCCL and along 

the S.R. 180 corridor because it was 

convenient. Several commenters 

questioned the value of the habitat 

south of the CCCL. 

Our Response: Habitat was designated 

between S.R. 180 and the CCCL within 

Unit 2 because it provides natural 

connectivity between two core ABM 

populations: Fort Morgan and the Gulf 

Highlands-Perdue Unit. These stretches 

of frontal dunes, scrub habitat, and open 

sand flats contain less gravel debris, 

human structures, and artificial light 

than the neighborhoods between the 

two east-west pathways. Unit 2 was 

designated primarily on the basis of PCE 

4, while some areas also contain PCEs 

2 and 3. Areas south of the CCCL, while 

overwashed and flattened by multiple 

storms in 2004 and 2005, are recovering 

natural topography and vegetation and 

provide both ABM habitat and east-west 

habitat continuity (PCEs 2 and 4). See 

‘‘Primary Constituent Elements’’

discussion. 

(36) Comment: One commenter stated 

that the proposal does not explain PCEs 

in sufficient detail to allow their 

protection during the consultation 

process. 

Our Response: The original PCEs for 

the ABM were defined as ‘‘dunes and 

interdunal areas, and associated grasses 

and shrubs that provide food and cover 

(June 6, 1985, 50 FR 23884).’’ We 

believe that the new PCEs contain 

greater detail, are more comprehensive, 

and represent a significant improvement 

over the PCEs from the original 

designation. They also incorporate 

disturbances from storms, allowing 

PCEs to be readily identified even 

following damage from tropical 

cyclones and freshwater flooding. We 

therefore believe the PCEs to be easily 

identified (under all conditions) during 

the consultation process. 

(37) Comment: Several commenters 

suggested removing PCE 5 on the basis 

that a natural light regime could be 

found in any location that is not 

developed. 

Our Response: Excessive artificial 

light has been shown to be detrimental 

to beach mice, and, therefore, a natural 

light regime is a physical feature 

essential to ABM conservation. An area 

was considered for designation where it 

possesses one or more of the PCEs and 

at least one of the following 

characteristics: (1) Supports a core 

population of beach mice; (2) was 

occupied by ABM at the time of listing; 

(3) or is currently occupied by ABM and 

has been determined to be essential to 

the conservation of the species. 

Therefore, no areas were identified as 

essential to ABM conservation based 

solely on a natural light regime. 

Comments Related to Mapping 

(38) Comment: One commenter asked 

how much of the Surfside Shores 

subdivision is within the critical habitat 

boundaries. 

Our Response: We are designating 

approximately 75 ac (30 ha) of ABM 

habitat within Surfside Shores. 

Designated critical habitat generally 

stretches from the mean high water line 

landward to the wetland swale located 

between Driftwood and Palmetto Drives, 

and from Kiva Dunes in the east to 

Morgantown in the west. Housing 

footprints, driveways, and small areas or 

lots that do not contain one or more 


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PCEs are not included in the 

designation. UTM coordinates and 

general maps of the designation are 

found below. Consult our Web site at 

http://www.fws.gov/daphne, or visit the 

Refuge headquarters, 12295 State 

Highway 180, Gulf Shores, or our 

Daphne Field Office (see ADDRESSES) for 

detailed aerial photography outlining 

the designation. 

(39) Comment: One commenter stated 

that the proposed rule should have 

contained maps and details of the 

original designation, so that readers 

could better assess changes between the 

original (1985) and revised designations. 

Our Response: The original 

designation of critical habitat, 

encompassing approximately 1,034 

acres of primary and secondary dunes 

and 10.6 miles (17 km) of coastline, was 

published in the Federal Register on 

June 6, 1985 (50 FR 23872). Maps of the 

original designation are in the public 

domain and, therefore, were not 

reprinted. These maps were available 

for public inspection at the field office 

during both comment periods. 

(40) Comment: One commenter stated 

that the area north of Adair Lane in the 

Cabana Beach subdivision did not 

contain PCEs. 

Our Response: We visited Adair Lane 

and agree with this assessment. Habitat 

north of Adair Lane consists of a 

wetland swale with intermixed 

maritime forest dominated by young 

pine trees. We have revised the 

designation in this area to include only 

those areas south of Adair Lane. We also 

removed an area along the S.R. 180 

corridor between Veterans Road and 

Martinique that is actually maritime 

forest, and does not contain the 

requisite PCEs. These changes resulted 

in approximately 10 ac (4 ha) being 

removed from the designation. Please 

see the ‘‘Summary of Changes from 

Proposed Rule’’ section and maps for 

more information. 

(41) Comment: One commenter 

pointed out that a small portion of land 

along S.R. 180 identified as not meeting 

the definition of critical habitat because 

it is part of Refuge property is actually 

private. Two commenters maintain 

there are plans to develop this property, 

and, therefore, it must be included in 

critical habitat. 

Our Response: We have reduced the 

area of the Refuge identified as having 

the features essential to the conservation 

of the species from 1,063 (430) ha to 807 

acres based on new information (see 

Comment 31 and ‘‘Summary of Changes 

from Proposed Rule’’ section). 

Approximately 20 ac (8 ha) of ABM 

habitat exists in the referenced area, of 

which approximately 13 ac (5 ha) are in 

private ownership. This habitat patch is 

approximately 0.4 miles (0.6 kilometers) 

east and 0.4 miles (0.6 kilometers) north 

of other areas identified as essential to 

the conservation of the subspecies, and 

therefore isolated. We have eliminated it 

from critical habitat. Trapping along the 

S.R. 180 right-of-way here in 2003 

yielded no beach mouse captures (Farris 

2003). However, this area is still 

included in our ABM habitat maps (see 

Comment 13) and any mice occurring 

there are protected under section 7 or 

section 9 of the Act. Impacts to ABM 

habitat there will still have to be 

reviewed by the Service. 

(42) Comment: One commenter 

questioned our assertion that the 

proposed critical habitat was spread 

evenly throughout the historic range of 

the subspecies. 

Our Response: In the proposed rule 

(February 1, 2006; 71 FR 5516), we 

suggested that critical habitat was 

spread evenly throughout the historic 

range of the subspecies. This was in 

error. The critical habitat is distributed 

throughout the western range of the 

subspecies, with a small portion (Unit 5) 

being found in the center of the historic 

range. Much of the eastern and central 

portions of the range no longer possess 

ABM or ABM habitat due to 

development. 

Comments Related to Site-Specific 

Areas 

(43) Comment: Critical habitat 

designation along the S.R. 180 (Fort 

Morgan Road) corridor would preclude 

utility companies from rapidly 

accessing lines in the event of a water 

or sewer line break. 

Our Response: Critical habitat 

designation would not interfere with 

these activities. When critical habitat is 

designated, Federal agencies are 

required to confer with the Service on 

any action (including actions that 

agencies carry out themselves, fund, or 

authorize) that is likely to result in 

destruction or adverse modification of 

critical habitat. The routine 

maintenance or emergency repair of 

water and sewer lines adjacent to Fort 

Morgan Road is not a Federal action. 

Furthermore, utility line maintenance 

may actually benefit ABM conservation 

by thinning out dense vegetation (see 

Unit 2 description below). 

(44) Comment: Several commenters 

questioned why Gulf State Park should 

be included in the proposal when there 

are currently no ABM and the habitat is 

susceptible to flooding during hurricane 

events. 

Our Response: Critical habitat in Gulf 

State Park represents the easternmost 

extent of the present-day ABM range. 

Gulf State Park was occupied at the time 

of listing, and possesses all PCEs except 

PCE 5. While ABM have twice been 

extirpated from the site (see Unit 5 

description below) it nonetheless 

possesses the physical and biological 

features essential to the conservation of 

the subspecies. Hurricanes are one of 

the main threats to the ABM (June 6, 

1985; 50 FR 23879–80; Service 2004, 

2005). Because the ABM is a narrowly 

endemic subspecies restricted to less 

than 34 miles of coastline, one major 

hurricane could easily affect the entire 

range of the species. Impacts within 

individual hurricanes, however, can 

vary greatly in intensity, and wide 

fluctuations in storm surge and wave 

run-up are possible depending on 

bathymetry, beach configuration, and 

variations in wind speed and waves 

within the storm. Protecting multiple 

populations, representative of the 

natural range of the subspecies, 

therefore, would likely increase the 

chance that at least one population 

within the range of a subspecies will 

survive episodic storm events and 

persist while vegetation and dune 

structure recover. The history of the 

closely related Perdido Key beach 

mouse clearly illustrates the need for 

multiple populations (a now potentially 

extirpated population was the source of 

the two remaining populations of the 

subspecies (Holler et al. 1989, pp. 398–

399)). Furthermore, Gulf State Park, 

which, although isolated, is capable of 

holding a self-sustaining population of 

mice due to its size, could prove 

important in the event of unforeseen 

threats to connected populations on the 

Fort Morgan Peninsula, such as disease. 

(45) Comment: Several commenters 

questioned why areas of the S.R. 180 

right-of-way south of the road were 

designated, but areas to the north were 

not. 

Our Response: The State of Alabama 

owns the S.R. 180 right-of-way. State 

ownership extends 160 ft (49 m) both 

north and south of the roadway 

centerline. Scrub habitat to the south is 

generally more open and, therefore, 

more suitable for ABM. Accordingly, it 

was included in this revised 

designation. In fact, several more open 

areas to the north were also included, 

especially in the western portions of 

Unit 2 and Unit 3. We have updated our 

Unit 2 and 3 descriptions to include 

commentary on these small sections 

north of the roadway. 

(46) Comment: One commenter stated 

that feral cats are a major threat to ABM 

and provided an example of a cat 

population within Gulf State Park on 

Perdido Key at the entrance to Ono 

Island. 


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Our Response: This comment refers to 

a problem with a feral cat colony on 

Perdido Key, which is outside the range 

of the ABM and involves the 

endangered Perdido Key beach mouse 

(Peromyscus polionotus trissyllepsis). 

The comment was addressed in the 

recent final rule designating critical 

habitat for three Gulf Coast beach mice, 

which included the Perdido Key beach 

mouse (October 12, 2006; 71 FR 60237). 

We concur that feral cats are a major 

threat to beach mice. Cat colonies may 

have led to the extirpation of Alabama 

and Perdido Key beach mice (Linzey 

1978, p. 20; Holliman 1983, p. 128). For 

this reason, incidental take permits 

issued for ABM contain conditions 

specifically addressing control of cats. 

Specific Comments Related to the Draft 

Economic Analysis (DEA) 

(47) Comment: Several commenters 

believe that the Service should not take 

economic impacts into consideration 

when designating critical habitat. 

Our Response: Section 4(b)(2) of the 

Act states that critical habitat shall be 

designated and revised on the basis of 

the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion and the Congressional record 

is clear that in making a determination 

under the section the Secretary has 

discretion as to which factors to 

consider and how much weight will be 

given to any factor. 

(48) Comment: One commenter stated 

that the Service’s failure to release the 

economic analysis simultaneously with 

the proposed rule frustrates the public’s 

attempt to meaningfully comment on 

the critical habitat being proposed. 

Our Response: We acknowledge this 

concern; however, the Service strives to 

keep the comment period on a draft 

economic analysis open as long as 

possible to allow the public time to 

review and comment on the draft 

economic analysis. The public was 

given a chance to comment on the DEA 

concerning our proposed revised critical 

habitat designation for ABM during our 

second public comment period from 

August 8, 2006, to September 7, 2006. 

(49) Comment: Several commenters 

stated that the Service has already made 

exclusions based on economics prior to 

the availability of a DEA (and in 

violation of the Administrative 

Procedure Act). 

Our Response: The exclusions 

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

Act in the proposed rule were based on 

secure HCPs, not on economic data. We 

did not have a DEA ready for public 

review until August 8, 2006, and the 

comment period on the DEA did not 

end until September 7, 2006. 

(50) Comment: One commenter states 

it is puzzling that the Service is 

imposing economic hardship in light of 

other Federal government tax incentives 

(Gulf Opportunity Zone Act of 2005). 

Our Response: This designation is 

non-discretionary and was in motion 

well before the Gulf Zone Act of 2005. 

We have considered the economic 

impacts of the designation. 

(51) Comment: One commenter 

requests the areas covered by the 

proposed rangewide HCP be excluded 

from critical habitat due to economic 

reasons. 

Our Response: Please refer to 

Comment 26. Because enrollment in the 

proposed rangewide HCP would be 

voluntary, we do not know which areas 

would actually be covered by it. 

(52) Comment: One commenter 

asserts the DEA does not support 

certification under the Regulatory 

Flexibility Act, and an Initial Regulatory 

Flexibility Analysis should be prepared 

and reviewed by the public. 

Our Response: We have considered 

whether this designation would result 

in a significant economic effect on a 

substantial number of small entities. We 

have determined that it is not likely to 

affect a substantial number of small 

entities. Federal involvement, and thus 

section 7 consultations, would be 

limited to a subset of the area 

designated. The most likely Federal 

involvement could include: Corps 

permits, permits we may issue under 

section 10(a)(1)(B) of the Act (ITPs), 

FHA funding for road improvements, 

and activities funded by FEMA. A 

regulatory flexibility analysis is not 

required. Please refer to the Required 

Determinations section for further 

information. 

(53) Comment: One commenter states 

the mission of the Service is to protect 

wildlife, not give considerations to 

economic impact. 

Our Response: Although economics 

may not be considered when listing a 

species, Congress has expressly required 

this consideration when designating 

critical habitat. 

(54) Comment: One commenter 

expressed concern that the estimated 

costs for Beach Club West and Gulf 

Highlands were overstated and that this 

may result in the two developments 

incorrectly being excluded from critical 

habitat for economic reasons. 

Our Response: Section 3 of the final 

economic analysis (EA) estimates 

impacts to the Beach Club West and 

Gulf Highlands development projects. 

The developments were analyzed in the 

context of potential costs which they 

may incur as a result of ABM 

conservation efforts, but they were not 

excluded for economic reasons. 

(55) Comment: Multiple commenters 

assert that the DEA underestimates the 

economic impact of critical habitat on 

specific projects and the local economy, 

as described in a study by Klages (2006). 

The Klages study is a report 

commissioned by private and public 

entities with an interest in development 

activities on the Fort Morgan Peninsula. 

The study estimates the impacts on the 

local economies of Baldwin County and 

Gulf Shores, Alabama, that could be 

generated by proposed development of 

properties on the Fort Morgan Peninsula 

potentially affected by the proposed 

critical habitat designation for the ABM. 

Our Response: Section 3 of the EA 

provides a discussion of the Klages 

study. As stated in Section 3 of the EA, 

the Klages study provides useful context 

for understanding development activity 

along the peninsula. Both the Klages 

study and the EA rely upon the same 

information concerning the extent of 

developable properties and the type of 

development that may occur. The 

Klages study and the EA differ, 

however, in certain base assumptions 

and methods for quantifying impacts. 

Most significantly, the EA assumes that 

development will proceed, but that 

ABM conservation efforts will cause 

incremental delays in development 

activities and land set-asides, or lower 

the number of residential units, as well 

as produce other direct costs. The 

Klages study posits that no development 

will occur on vacant parcels within 

critical habitat designation, and then 

employs a form of input-output 

modeling to measure revenue and other 

effects of foregone development. In the 

Klages study, it is unclear what specific 

properties are determined to be 

precluded from development. Therefore, 

the specific study area may be different 

than the critical habitat designation. 

These differences affect the impact 

estimates as follows: First, the impacts 

identified in the Klages study are higher 

than those presented in the EA. The 

Service agrees that, while potential 

impacts on development are significant, 


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it is unlikely that all development 

activity would be prohibited within the 

bounds of critical habitat. Despite these 

differences in absolute impacts, 

however, the study and the EA are 

consistent with respect to ‘‘relative’’

impacts across different parcels and 

different types of development. That is, 

development locations identified as 

experiencing high impacts in the Klages 

study also experience high impacts in 

this economic analysis. The same result 

holds for locations identified as having 

relatively low impacts. 

(56) Comment: Various commenters 

stated the economic analysis should not 

be based on the Klages study because it 

was paid for by developers and is, 

therefore, biased. 

Our Response: The DEA is not based 

on the Klages study. Section 3 of the 

DEA provides a discussion of the Klages 

study; however, the DEA does not use 

the information in the Klages study to 

estimate impacts of conservation efforts 

for the ABM within critical habitat. 

(57) Comment: One commenter states 

the economic analysis overestimates the 

economic impacts of critical habitat. 

Specifically, the commenter states no 

highway project will occur within the 

Highway 180 right-of-way, only a small 

number of projects will occur seaward 

of the construction control line (CCL), 

and there have been no residential 

housing units lost due to conservation 

efforts for the ABM. 

Our Response: The DEA may 

overestimate the economic impact of 

critical habitat because it looks at all the 

costs of conserving beach mice. Some of 

the costs might occur even if critical 

habitat was not designated. However, as 

stated in Section 4 of the DEA, Alabama 

Department of Transportation plans to 

expand Highway 180 within the rightof-way. As discussed in the DEA, it is 

likely that State Route 180 can be 

widened within the existing right-ofway on the north side of the road with 

limited or no impact on ABM critical 

habitat, except along one quarter-mile to 

a half-mile of road. Second, as discussed 

in Appendix C, the DEA assumes no 

development will occur seaward of the 

CCL. Lastly, Section 3 of the DEA 

estimates ABM conservation efforts 

resulted in a reduction in approximately 

66 residential housing units. 

(58) Comment: One commenter writes 

the DEA underestimates the economic 

impacts of ABM critical habitat on 

development because it does not 

consider the stigma impacts on the 

marketability of property designated as 

critical habitat; does not consider the 

impacts of a potential reduction in the 

number of dwelling units which can be 

built; does not consider the reduction of 

market value of loss of proximity to 

beachfront; does not consider the 

alteration of amenities which can be 

packaged with the units; does not give 

consideration to the costs associated 

with delays; and does not consider costs 

associated with permit application. 

Our Response: We agree that an 

economic analysis should incorporate 

costs associated with each of the 

categories referenced by the commenter. 

As described in Section 3 of the DEA, 

the conservation activities associated 

with the ABM may result in losses to 

developers and individual landowners 

by imposing the following costs: (1) 

Increased administrative costs to secure 

incidental take permits (ITPs), including 

associated project delay costs; (2) on-site 

project modification costs to protect the 

ABM; and (3) land value losses 

associated with development 

restrictions, i.e., required land setbacks 

or set-asides. 

Ideally, a hedonic model of regional 

property values would be employed to 

estimate welfare losses associated with 

potential development constraints in 

critical habitat. This economic tool, that 

is, a hedonic model, measures the 

influence of amenities, disamenities, 

and regulations on land and housing 

prices and, in theory, could provide a 

direct measure of the effects associated 

with critical habitat arising from 

demand and supply factors (including 

the costs described above). To utilize a 

hedonic model data on property sales 

prices, structural and locational 

characteristics for the housing markets 

in the vicinity of ABM habitat would be 

required. However, these data are not 

available. Therefore, to estimate welfare 

losses associated with potential 

development constraints in designated 

areas, the economic analysis primarily 

relies on the direct compliance cost 

approach to quantify potential impacts 

of ABM conservation on development in 

critical habitat. To estimate losses 

associated with increased 

administrative costs and project 

modifications, we contacted area 

developers and other stakeholders to 

obtain cost information that can be 

applied to existing and potential 

development activities in units for 

critical habitat designation and areas 

proposed for exclusion. Given available 

information, the compliance cost 

approach is a reasonable method to 

determine the relative magnitude of 

conservation effort costs across parcels 

within critical habitat. 

(59) Comment: One commenter 

asserts that the Service did not consider 

the economic losses associated with 

critical habitat in the context of 

hurricane recovery, specifically 

recovery following hurricane Katrina. 

Our Response: The purpose of the 

economic analysis is to identify and 

analyze the potential economic impacts 

associated with the critical habitat 

designation for the federally listed 

ABM. Section 5 of the DEA outlines 

estimated past impacts from storms. It is 

not practicable to estimate future 

impacts of hurricanes for several 

reasons. First, although some models are 

available to predict storm events, these 

data are not sufficient to predict the 

likely human response to the damage 

and conservation efforts for the ABM. 

Accordingly, this analysis does not 

quantify costs of conservation efforts 

resulting from future storm damage. 

Second, not accounting for potential 

tropical storms and hurricanes is 

expected to have a downward impact on 

estimating total cost of conservation 

efforts for the ABM. Most responses to 

storm events will have little to do with 

the ABM critical habitat designation. 

For example, dune restoration and 

protection efforts (for example, beach 

nourishment) are a result of the storm 

event and not the ABM; however, some 

additional efforts may be required by 

the critical habitat designation, such as 

conducting a consultation. In addition, 

it is important to note that some 

conservation efforts for the ABM may 

result in dune protection to the extent 

that dune protection lessens storm 

damage. 

(60) Comment: Several commenters 

request an economic analysis of 

proposed critical habitat for Planning 

District 25 only. 

Our Response: As discussed in 

Section 1 of the DEA, the geographic 

scope of the economic analysis includes 

all areas proposed for critical habitat 

designation and areas proposed for 

exclusion. Therefore, the economic 

analysis considers impacts that may 

occur within Planning District 25 (Fort 

Morgan Peninsula) as well as outside 

this area (for example, Gulf State Park). 

(61) Comment: Several commenters 

state the DEA underestimates the 

number of small entities in the 

development industry that may be 

affected and the burden the critical 

habitat may impose on these small 

entities. 

Our Response: Because the Final 

Economic Analysis (FEA) is prospective 

in nature, we are unable to identify the 

specific developers undertaking projects 

in critical habitat in the next 20 years. 

The FEA assumes that project 

modification costs associated with ABM 

conservation efforts (for example, onsite 

set-asides, minimizing artificial lighting, 

and dune maintenance) will be 


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capitalized into the price of land and 

will be borne by the existing landowner, 

regardless of whether that landowner 

actually undertakes the development 

project themselves. Using the number of 

privately owned developable parcels (or 

lots) that intersect the revised critical 

habitat, approximately 137 landowners 

could be impacted by ABM 

conservation efforts. Many of these 

landowners may be individuals or 

families that are not registered 

businesses (for example, they may be 

holding the land as an investment). No 

North American Industry Classification 

System (NAICS) code exists for 

landowners, and the Small Business 

Administration does not provide a 

definition of small landowner. A lower 

bound estimate of the potential impact 

to small entities would be to assume 

that all existing landowners are not 

registered businesses, and, therefore, no 

impact on small entities is expected. To 

develop an upper bound estimate of the 

potential impacts on small entities, the 

FEA makes the conservative assumption 

that all of the private owners of 

developable lands in critical habitat 

impacted by future ABM conservation 

efforts will be developers. This 

assumption is likely to overstate the 

actual impacts to small development 

firms. The FEA estimates that less than 

two small developers may experience a 

reduction in revenues of 2.8 percent 

each year as a result of ABM 

conservation efforts in critical habitat. 

In addition, we acknowledge that some 

subcontractors to developers may meet 

the definition of a small business 

definition under the Regulatory 

Flexibility Act (5 U.S.C. 601–612) and 

may be affected by the impacts to 

development activities from critical 

habitat designation. These 

subcontractors are indirectly affected by 

ABM conservation efforts that directly 

affect the project proponent (the 

developer). 

(62) Comment: One commenter wrote 

the DEA underestimates the amount of 

property that could potentially be 

developed as multi-family units. 

Our Response: Appendix C of the 

DEA provides the methodology used to 

determine the type of development 

likely to occur within critical habitat. 

The DEA uses geographic information 

systems (GIS) software to estimate the 

maximum number of potential 

residential units that could be built in 

critical habitat under current Baldwin 

County, Alabama, zoning regulations, 

and future City of Gulf Shores, Alabama, 

zoning. Potential redevelopment areas 

are estimated using the 2003 study by 

Volkert & Associates, Permitted or 

Potential Future Gulf-Front MultiFamily Development Locations, Fort 

Morgan Peninsula, Gulf Shores, 

Alabama. The Volkert & Associates 

study identified lands that can 

physically and legally support multifamily development, irrespective of 

current zoning. No additional properties 

are expected to be capable of supporting 

multi-family development. 

(63) Comment: Several commenters 

state the DEA does not consider all of 

the alternatives for Beach Club West and 

Gulf Highlands outlined in the Draft 

Environmental Impact Statement (DEIS) 

for these projects. 

Our Response: The DEA estimates 

impacts based on activities that are 

reasonably foreseeable, which include, 

but are not limited to, activities that are 

currently authorized, permitted, or 

funded, or for which proposed plans are 

currently available to the public. 

Section 3 of the DEA estimates costs of 

ABM conservation efforts for the Beach 

Club West and Gulf Highlands projects 

associated with the most reasonably 

foreseeable project, the Preferred 

Alternative provided in the DEIS. 

(64) Comment: Several commenters 

assert the DEA only focuses on two 

developments, Beach Club West and 

Gulf Highlands. 

Our Response: The DEA estimates 

potential impacts on many activities, 

including a wide range of development 

activities, road construction and 

maintenance activities, tropical storms 

and hurricanes, species management 

activities, and recreation activities. Most 

anticipated costs are associated with 

residential and commercial 

development (approximately 99 

percent). Of these, 70 to 93 percent are 

associated with the Beach Club West 

and Gulf Highlands projects. 

(65) Comment: One commenter stated 

the DEA appears to be based on the 

2003 Volkert & Associates analysis. 

However, a 2005 study is available and 

should be used. 

Our Response: As discussed in 

Appendix C of the DEA, Volkert & 

Associates developed a GIS layer 

identifying vacant single-family lots 

within ABM habitat for the City of Gulf 

Shores Range-Wide HCP in 2005. This 

information was used in the DEA to 

estimate the number of single family 

homes likely to be developed under the 

City of Gulf Shores Range-Wide HCP 

within critical habitat. In 2003, Volkert 

& Associates developed a separate GIS 

layer to identify areas on the Fort 

Morgan Peninsula that may legally and 

physically support multi-family 

development (irrespective of current 

zoning). This layer identifies parcels 

that are legally (for example, covenants, 

easements) or physically (for example, 

wetlands) incapable of development. 

The 2003 data were used to estimate the 

potential for redevelopment as multifamily within critical habitat. An 

updated (2005) version of this data layer 

is not available. 

Comments From States 

Section 4(i) of the Act states that the 

Secretary shall submit to the State 

agency a written justification for his 

failure to adopt a regulation consistent 

with the agency’s comments or petition. 

Comments were received from the State 

of Alabama’s Department of 

Transportation (ALDOT) and 

Department of Conservation and Natural 

Resources (ADCNR). 

(66) Comment: ALDOT requests the 

exclusion of the S.R. 180 (Fort Morgan 

Road) right-of-way from the critical 

habitat because of future plans to widen 

the corridor to address increasing traffic 

volumes and safety concerns. 

Our Response: The S.R. 180 right-ofway is owned by the State of Alabama 

and extends 160 ft (49 m) south of the 

roadway centerline. Trapping data 

(Farris 2003) demonstrated mice 

occupancy along most of the right-ofway from the Fort Morgan Historic Site 

to just west of The Beach Club. These 

areas, which consist of high elevation 

scrub habitat, low elevation scrub 

habitat, and open sandy habitat serving 

to connect larger, more contiguous areas 

designated as critical habitat, are 

important for east-west movement of 

mice along the peninsula. This area is 

not covered under a ABM-specific 

management plan and, as such, does not 

meet our criteria for exclusion under 

section 4(b)(2) of the Act due to 

conservation plans. We have had 

discussions with ALDOT regarding 

revised critical habitat and the widening 

project and will continue to work with 

ALDOT to ensure that projects proceed 

with minimal impact to designated 

critical habitat. 

(67) Comment: ADCNR asked how the 

designation of critical habitat would 

affect the sale and permitting of 

driveway easements on State-owned 

land along S.R. 180. 

Our Response: We recommend that 

landowners planning to construct 

driveways through ABM habitat apply 

for an ITP from the Service regardless of 

whether or not there is critical habitat 

(please see Comment 13 for a discussion 

of the difference between ABM habitat 

and critical habitat). Critical habitat 

only applies to Federal actions; 

therefore, driveway construction would 

not trigger consultation with the 

Service; however, since take of mice 

may occur, we recommend an ITP. 


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(68) Comment: ADCNR expressed 

concern that the areas proposed for 

exclusion from critical habitat do not 

match up with its proposed plans for 

the proposed Gulf State Park hotel and 

convention center. 

Our Response: In 2004, we approved 

an HCP and issued an ITP for the 

upcoming demolition and 

reconstruction of a new hotel and 

convention center complex south of S.R. 

182 on Gulf State Park. ADCNR applied 

for and received a modification to this 

permit in 2005 to allow for adjustments 

to proposed parking lots and building 

footprints. ADCNR has now applied for 

an additional permit modification to 

include moving and rebuilding the pier 

that was destroyed by Hurricane Ivan, 

and slight changes to its proposed 

design for the parking and hotel and 

convention center facilities. The Service 

has attended several meetings with 

ADCNR staff regarding project 

construction and the minimization of 

impact to both existing and revised 

critical habitat. In its current proposal, 

ADCNR has outlined plans for a 

combined facility that features state-ofthe-art, wildlife-friendly lighting and 

reduces overall ABM habitat impacts by 

2 ac (0.8 ha). We have modified this 

final rule to reflect this second permit 

modification. Please refer to the 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section and 

Map 6 for more information. 

Summary of Changes From Proposed 

Rule 

In preparing this final critical habitat 

designation for the ABM, we reviewed 

and considered comments from the 

public on the proposed designation of 

critical habitat published on February 1, 

2006 (71 FR 5516). We likewise 

reviewed and considered comments 

from our announcement of revisions to 

the proposal, the availability of the 

DEA, and public hearing published on 

August 8, 2006 (71 FR 44976). As a 

result of the comments and a 

reevaluation of the revised proposed 

critical habitat boundaries, we made 

changes to our proposed designation, as 

follows: 

(1) We revised the critical habitat 

units based on peer review, public 

comments, and biological information 

received during the public comment 

periods. We adjusted the boundaries of 

Unit 3 to remove 10 acres along the S.R. 

180 right-of-way immediately west of 

Martinique, and in the Cabana Beach 

subdivision north of Adair Lane because 

these areas do not meet our criteria for 

inclusion. 

(2) We realigned or reduced the area 

considered to be essential to the 

conservation of species on the Perdue 

Unit of the Bon Secour National 

Wildlife Refuge from 1,063 ac (430 ha) 

to 807 ac (327 ha), based on site visits, 

a detailed review of 2005 aerial 

photography, and recent tracking and 

trapping data (see Comment 31). 

However, these areas within the Perdue 

Unit still do not meet the definition of 

critical habitat under section 3(5)(A) of 

the Act because they are protected 

under the Refuge’s CCP (they do not 

require special management 

considerations or protection ) (see 

‘‘Application of Section 3(5)(A) of the 

Act’’ for more information). 

(3) Under section 4(b)(2) of the Act, 

we did not designate the areas totaling 

108 ac (44 ha) covered by the HCP for 

the Beach Club West and Gulf 

Highlands because the HCP provides for 

ABM conservation (see ‘‘Application of 

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

Act’’ section for more detail). 

(4) We have modified the boundaries 

of the designation for Unit 5: Gulf State 

Park to reflect its recent ITP 

modification. This modification resulted 

in the addition of 2 ac (0.8 ha) to Unit 

5 (see Comment 68 and the 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act ‘‘ section for 

more information). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(areas on which are found the primary 

constituent elements, as defined at 50 

CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2) of the Act.) 

Furthermore, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. 

However, an area currently occupied by 

the species but was not known to be 

occupied at the time of listing will 

likely be essential to the conservation of 

the species and, therefore, typically be 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Act, published in 

the Federal Register on July 1, 1994 (59 

FR 34271), and Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service, 

provide criteria, establish procedures, 

and provide guidance to ensure that 

decisions made by the Service represent 

the best scientific data available. They 


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require Service biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation are 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

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

the regulatory protections afforded by 

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

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts call 

for a different outcome. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we consider 

those physical and biological features 

(PCEs) that are essential to the 

conservation of the species, and within 

areas occupied by the species at the 

time of listing, that may require special 

management considerations and 

protection. These include, but are not 

limited to, space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific PCEs required for the 

ABM are derived from the biological 

needs of this beach mouse as described 

in the proposed critical habitat 

designation published in the Federal 

Register on February 1, 2006 (71 FR 

5516). 

Primary Constituent Elements for the 

Alabama Beach Mouse 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to ABM conservation. All areas 

designated as ABM critical habitat are 

occupied or essential to the 

conservation of the species, within the 

species’ historic geographic range, and 

contain sufficient PCEs to support at 

least one life history function. 

This designation is designed for the 

conservation of PCEs necessary to 

support the life history functions that 

were the basis for the proposal. Because 

not all life history functions require all 

the PCEs, not all critical habitat will 

contain all the PCEs. 

Units known to be occupied at the 

time of listing are designated based on 

sufficient PCEs being present to support 

one or more of the species’ life history 

functions. Some units contain all PCEs 

and support multiple life processes, 

while some units contain only a portion 

of the PCEs necessary to support the 

species’ particular use of that habitat. 

Where a subset of the PCEs is present at 

the time of designation, this rule 

protects those PCEs and thus the 

conservation function of the habitat. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that PCEs for the ABM are: 

(1) A contiguous mosaic of primary, 

secondary, and scrub vegetation and 

dune structure, with a balanced level of 

competition and predation and few or 

no competitive or predaceous nonnative 

species present, that collectively 

provide foraging opportunities, cover, 

and burrow sites. 

(2) Primary and secondary dunes, 

generally dominated by sea oats (Uniola 

paniculata), that, despite occasional 

temporary impacts and reconfiguration 

from tropical storms and hurricanes, 

provide abundant food resources, 

burrow sites, and protection from 

predators. 

(3) Scrub dunes, generally dominated 

by scrub oaks (Quercus spp.), that 

provide food resources and burrow 

sites, and provide elevated refugia 

during and after intense flooding due to 

rainfall and/or hurricane-induced storm 

surge. 

(4) Unobstructed habitat connections 

that facilitate genetic exchange, 

dispersal, natural exploratory 

movements, and recolonization of 

locally extirpated areas. 

(5) A natural light regime within the 

coastal dune ecosystem, compatible 

with the nocturnal activity of beach 

mice, necessary for normal behavior, 

growth, and viability of all life stages. 

Each of the areas designated in this 

rule known to be occupied at the time 

of listing has been determined to 

contain sufficient PCEs to provide for 

one or more of the life history functions 

of the ABM. In some cases, the PCEs 

exist as a result of ongoing Federal 

actions. As a result, ongoing Federal 

actions at the time of designation will be 

included in the baseline in any 

consultation conducted subsequent to 

this designation. 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat on 

lands that were occupied at the time of 

listing and contain sufficient PCEs to 

support life history functions essential 

to the conservation of the ABM. In a few 

instances, we are also proposing to 

designate areas that were identified as 

occupied after listing, but that we have 

determined to be essential to the 

conservation of the ABM. 

Units known to be occupied at the 

time of listing were designated based on 

sufficient PCEs being present to support 

Alabama beach mouse life processes 

and at least one of the following 

characteristics: (1) Supports a core 

population of ABM; (2) was occupied by 

ABM at the time of listing; (3) is 

currently occupied by ABM according 

to Service ABM live-trapping protocol 

(Service 2005, p. 2) and has been 

determined to be essential to the 

conservation of the species. Some units 

contain all PCEs and support multiple 

life processes. Some units contain only 

a portion of the PCEs necessary to 


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4344 Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 

support the ABM’s particular use of that 

habitat. Where only a subset of the PCEs 

are present, it has been noted that only 

PCEs present at designation will be 

protected. Areas that are degraded, 

highly fragmented, isolated, or 

otherwise considered of questionable 

value to ABM conservation are not 

included. The Service has developed a 

trapping protocol for establishing 

absence of beach mice (see ADDRESSES

to request a copy). In summary to 

document absence, this protocol 

requires 2 years of quarterly livetrapping with no beach mice captured. 

Presence of ABM, however, can be 

documented by the capture of one beach 

mouse, or the observation of beach 

mouse tracks or beach mouse burrows 

by a beach mouse expert or similarly 

qualified biologist. 

Following the strategy outlined above, 

we began by mapping coastal dune 

communities within the historic range 

of the species. These areas were refined 

by using aerial map coverages, chiefly 

Baldwin County aerial photography 

from 2001 and 2005, and LIDAR 

imagery (Baldwin County 2004), to 

eliminate features such as housing 

developments and other areas that are 

unlikely to contribute to the 

conservation of ABM. We then focused 

on areas supporting ABM, as well as 

areas that contain the PCEs for the 

subspecies. 

Because ABM habitat is dynamic and 

changes in response to coastal erosion, 

we believe that limiting the designation 

to areas occupied at the time of listing 

would not yield sufficient habitat for the 

persistence of ABM. The fragmentation 

of the species’ historic habitat, coupled 

with the dynamic nature of coastal dune 

habitat due to tropical storms, makes 

multiple populations essential for 

species conservation. Consequently, we 

are designating units that were not 

occupied at the time of listing. These 

areas are essential for the conservation 

of the ABM. In addition, however, they 

are also currently occupied by the 

species, have one or more of the PCEs, 

and are within the historic range of the 

species. 

The combined extent of these mapped 

areas defines the habitat that contains 

features that are essential to the 

conservation of the subspecies. 

Although these designated areas 

represent only a small proportion of the 

subspecies’ historic range, they include 

a significant proportion of the remaining 

intact coastal communities and reflect 

the habitat types historically occupied 

by ABM. Areas not containing the PCEs, 

such as permanent wetlands and 

maritime forests, are not included in the 

designation. Field reconnaissance was 

done in a few areas for verification. We 

eliminated highly degraded tracts, and 

small, isolated, or highly fragmented 

tracts that provide no long-term 

conservation value. The remaining 

areas, totaling 2,281 ac (923 ha), were 

identified as containing the PCEs and 

essential to the conservation of the 

subspecies. 

We reviewed existing ABM 

management and conservation plans to 

determine if any areas identified above 

did not meet the definition of critical 

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

the Act, or could be excluded from the 

revised designation in accordance with 

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

Perdue Unit of the Refuge are 

adequately protected under the Refuge’s 

Comprehensive Conservation Plan and 

do not require special management or 

protection. While these areas, which 

total 808 ac (327 ha), contain the habitat 

features that are essential to the 

conservation of the subspecies, they do 

not meet the definition of critical 

habitat. 

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

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts on the species 

of the requested incidental take. We 

often exclude non-Federal public lands 

and private lands that are covered by an 

existing operative HCP under section 

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

critical habitat because the benefits of 

exclusion outweigh the benefits of 

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

of the Act. As discussed in further detail 

below (see ‘‘Application of Sections 

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

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

are excluding 51 properties that are 

currently protected through Habitat 

Conservation Plans providing ABM 

protection and habitat management. 

These excluded properties total 263 ac 

(106 ha). One of these areas, the 

development site for Beach Club West 

and Gulf Highlands, was also excluded 

based on an HCP. 

The remaining 1,211 ac (490 ha) of 

ABM habitat being designated as critical 

habitat is divided into the five units 

described below. These five critical 

habitat units, all located within the 

coastal dune environment of Baldwin 

County, Alabama, are currently 

occupied by ABM. Although these units 

represent only a small proportion of the 

subspecies’ historic range, they include 

a significant proportion of Alabama’s 

best remaining coastal dune habitat, and 

reflect the wide variety of habitat types 

utilized by the ABM. The areas include 

all of the contiguous high elevation 

habitats (as determined by review of 

LIDAR data, storm surge model 

estimates, and post-Hurricane Ivan 

measurements) crucial to the 

subspecies’ survival during and after 

major hurricane events. Because shortterm occupation of habitat varies in 

response to tropical storm activity, ABM 

presence will vary spatially and 

temporally throughout the designated 

areas, and may be unevenly distributed 

at any given time. 

When determining critical habitat 

boundaries, we made every effort to 

avoid the designation of developed 

areas such as buildings or houses, paved 

areas, gravel driveways, ponds, 

swimming pools, lawns, and other 

structures that lack PCEs for the ABM. 

When it has not been possible to map 

out all of these structures and the land 

upon which they are sited because of 

scale issues, they have been excluded by 

rule text. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultations, unless they 

affect the subspecies or PCEs in adjacent 

critical habitat. It is important to note 

that the maps provided in this rule (see 

‘‘Regulation Promulgation’’ section) are 

for illustrative purposes. For the precise 

legal definition of critical habitat, please 

refer to the narrative unit descriptions 

in the ‘‘Regulation Promulgation’’

section of this rule. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain the features essential to the 

conservation that may require special 

management considerations or 

protections. As discussed in more detail 

in the proposed critical habitat 

designation (February 1, 2006; 71 FR 

5516) and in the unit descriptions 

below, we find that the features we are 

designating may require special 

management considerations or 

protections due to threats to the 

subspecies or its habitat. Such 

management considerations and 

protections include: management of 

nonnative predators and competitors, 

management of nonnative plants, and 

protection of ABM and their habitat 

from threats by road construction, urban 

and commercial development, heavy 

machinery, and recreational activities. 

Critical Habitat Designation 

We are designating five units as 

critical habitat for the ABM (from west 


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to east): (1) Fort Morgan, (2) Little Point 

Clear, (3) Gulf Highlands, (4) Pine 

Beach, and (5) Gulf State Park. They are 

described below as our best assessment, 

at this time, of the areas determined to 

be occupied by the ABM at the time of 

listing that contain one or more of the 

PCEs that may require special 

management, and those additional areas 

that were not occupied at the time of 

listing, but are essential for the 

conservation of the ABM because they 

contain one or more of the PCEs, 

support core ABM populations and 

habitat continuity, and are currently 

occupied. Table 1 shows the units that 

were occupied at the time of listing and 

those that are currently occupied but 

were not so at the time of listing. Table 

2 identifies the areas that meet the 

definition of critical habitat but were 

excluded from final critical habitat 

based on their ABM-specific 

management plans or economic data. 

TABLE 1.—THE UNITS THAT WERE OCCUPIED BY ABM AT THE TIME OF LISTING OR ARE CURRENTLY OCCUPIED

Unit Occupied at 

time of listing 

Occupied 

currently 

Acres 

(hectares) 

(1) Fort Morgan .......................................................................................................................... X X 446 (180) 

(2) Little Point Clear ................................................................................................................... ........................ X 268 (108) 

(3) Gulf Highlands ...................................................................................................................... X X 275 (111) 

(4) Pine Beach ........................................................................................................................... X X 30 (12) 

(5) Gulf State Park ..................................................................................................................... X X 192 (78) 

TABLE 2.—AREAS DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT FOR THE ALABAMA BEACH MOUSE BUT

WERE EXCLUDED FROM FINAL CRITICAL HABITAT DESIGNATION

[Totals may not sum due to rounding] 

Geographic area 

Definitional 

areas (acres/ 

hectares) 

Area excluded 

from final designation 

(acres/hectares) 

Reason 

The Dunes ...................................................................................................................................... 10/4 10/4 HCP 

Bay to Breakers ............................................................................................................................. 2/1 2/1 HCP 

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

Plantation Palms ............................................................................................................................ 2/1 2/1 HCP 

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

Beach Club West/Gulf Highlands .................................................................................................. 108/44 108/44 HCP 

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

Gulf State Park ............................................................................................................................... 235/95 43/17 HCP 

43 Single Family Homes ................................................................................................................ 21/8 21/8 HCP 

Total (Baldwin County) ........................................................................................................... 453/183 263/67 

Table 3 provides the approximate area 

encompassed within each critical 

habitat unit determined to meet the 

definition of critical habitat for the 

Alabama beach mouse. 

TABLE 3.—CRITICAL HABITAT UNITS DESIGNATED FOR THE ALABAMA BEACH MOUSE

[Totals may not sum due to rounding] 

Critical Habitat Units Federal acres/ 

hectares 

State acres/ 

hectares 

Local and private acres/ 

hectares 

Total acres/ 

hectares 

(1) Fort Morgan ................................................................................................ 44/18 337/136 66/27 446/180 

(2) Little Point Clear ......................................................................................... 16/6 82/33 170/69 268/108 

(3) Gulf Highlands ............................................................................................ 11/4 44/17 218/88 275/111 

(4) Pine Beach ................................................................................................. 11/4 0 19/8 30/12 

(5) Gulf State Park ........................................................................................... 0 192/78 0 192/78

Total .......................................................................................................... ........................ ........................ ........................ 1,211/490 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for the 

ABM, below. 

Unit 1: Fort Morgan 

Unit 1 (Map 2) consists of 446 ac (180 

ha) and encompasses ABM habitat in 

the Fort Morgan State Historic Site and 

private lands to the east. It is located at 

the extreme western edge of the ABM 

range and consists principally of habitat 

that was known to be occupied at the 

time of listing (50 FR 23990; Holliman 

1983, p. 126) south of S.R. 180 (Fort 

Morgan Parkway), with the exception of 

a single line of high scrub dunes 

directly north of the roadway and 

within the historic site boundaries. 

Much of Unit 1 is existing critical 

habitat that was designated at the time 

of listing (June 6, 1985; 50 FR 23885). 

However, the actual Fort and associated 

structures and developed areas that 


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were included in the original 

designation are not included in this 

critical habitat unit. The unit extends 

from mean high water line (MHWL) 

northward to the break between scrub 

dune habitat and either the maritime 

forest or human developed landscape 

(for example, grassy areas associated 

with Fort Morgan State Historic Site). 

The unit is bounded to the west by 

Mobile Bay, and to the east by Unit 2 

(western property line of the ‘‘Bay to 

Breakers’’ residential development; see 

below). The Dunes development and 

several single family homes covered by 

Service-approved HCPs are excluded 

from this unit (see ‘‘Application of 

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

Act’’ section). 

ABM occurrence in the unit over time 

is well documented (Holliman 1983, p. 

126; 50 FR 23990; Rave and Holler 1992, 

pp. 349–350; Sneckenberger 2001, pp. 

12–13 and 32–36), and mice have been 

captured here following Hurricanes Ivan 

and Katrina (Endangered Species 

Consulting Services 2004a, p. 2; Service 

2005, p. 15). This unit contains the 

features essential to the conservation of 

the subspecies. Some areas of the unit 

contain a contiguous mix of primary 

and secondary dunes, interdunal 

swales, wetlands, and scrub dunes (PCE 

1), whereas other areas contain high 

quality primary and secondary dune 

habitat (PCE 2). While no one portion of 

the designated unit contains all PCEs, 

all five PCEs are present within the unit. 

Natural areas of the Fort Morgan 

Historic Site are owned by the State of 

Alabama (Alabama State Historical 

Commission), but are currently managed 

by the Refuge according to a cooperative 

agreement (Service 2005) (see 

‘‘Application of Section 3(5)(A) and 

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

Act’’ section for further detail on 

management). Threats in this unit that 

may require special management 

considerations include humangenerated refuse, and degraded habitat 

(from activities associated with 

recreational use). 

Unit 2: Little Point Clear 

Unit 2 consists of 268 ac (108 ha) and 

includes east-to-west bands of ABM 

habitat and connections between habitat 

south of the Alabama Department of 

Environmental Management’s Coastal 

Construction Control Line (CCCL) 

(ADEM 1995, pp. 2–8 through 2–10) and 

along the roadway right-of-way for Fort 

Morgan Parkway. This Unit is bounded 

to the west by Unit 1 and extends 

eastward to the western edge of the 

Surfside Shores subdivision (western 

boundary of Unit 3). The CCCL varies in 

width but generally extends about 300 

ft (91 m) landward of MHWL. The Fort 

Morgan Parkway right-of-way, which is 

managed by the State of Alabama 

(ADCNR) extends 160 ft (49 m) both 

south and north of the roadway 

centerline. The designation includes the 

southern sections of right-of-way and 

small portions of the northern right-ofway. In several places along the east 

west extent of this unit, additional 

parcels, either to the south of the Fort 

Morgan Parkway, or to the north of the 

CCCL, that contain the PCEs (see 

Primary Constituent Elements section) 

are included in the revised designation 

(see Map 3). Several areas covered by 

HCPs for single family and duplex 

development have been excluded. This 

unit was not part of the original (1985) 

critical habitat designation. This unit is 

a mix of Federal, State, local, and 

private ownership. 

This unit, while often being 

inundated during storm surge events 

(Service 2004a; pp. 12–13; ENSR 2004, 

pp. 3–5 through 4–1; ACOE 2001, 

Service 2005a, pp. 14–15), represents 

the last remaining natural habitat 

connections between ABM populations 

in and around Unit 1 and Unit 3, and 

provides an essential link between those 

populations (PCE 4). Portions of this 

unit south of the CCCL contain PCE 2 

and some sections of the right-of-way 

contain PCE 3. While this area was 

identified as being within the range of 

the ABM (50 FR 23872, Holliman 1983, 

pp. 125–126; Dawson 1983, pp. 8–11), 

we have no records that ABM were 

present at the time of listing. However, 

pre-hurricane Ivan trapping has verified 

the presence of mice south of the CCCL 

(Meyers 1983, pp. 5, 12–21; 50 FR 

23872; Endangered Species Consulting 

Services 2004b, p. 2) and along the 

right-of-way (Sneckenberger 2001, p. 13; 

Farris 2003). Because the unit is 

presently occupied and contains two of 

the PCEs, and because long-term beach 

mouse viability depends on the 

existence of more populations than were 

documented at the time of listing, it is 

essential to the conservation of the 

subspecies. Habitat south of the CCCL 

consists of primary and secondary 

dunes, while habitat along the right-ofway consists primarily of scrub that is 

often temporarily disturbed by utility 

line maintenance. Utility line work 

results in a sparsely vegetated, open 

scrub habitat that still provides forage 

and cover opportunities for mice in the 

area. 

Unit 3: Gulf Highlands 

Unit 3 consists of 275 ac (111 ha) in 

the central portion of the Fort Morgan 

Peninsula. It includes portions of the 

Morgantown, Surfside Shores, and 

Cabana Beach subdivisions, as well as 

portions of the Beach Club West-Gulf 

Highlands development, BLM 

properties, and some properties along 

the Fort Morgan Parkway right-of-way. 

It is bounded to the west by Unit 2. The 

main portion of the unit generally 

stretches from MHWL landward to a 

natural border of wetlands to the north. 

This portion is bisected by ABM habitat 

associated with the Kiva Dunes, 

Plantation Palms, Beach Club, and 

Martinique developments and is 

excluded because of its HCPs (see 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section). The 

unit also contains an eastward 

continuation of ABM habitat adjacent to 

the Fort Morgan Parkway. This northern 

portion of Unit 3 is bounded to the west 

by Unit 2 and to the east by wetlands 

and maritime forest along the S.R. 180 

and points east. Like the right-of-way 

corridor in Unit 2, it generally extends 

from the centerline of Fort Morgan 

Parkway 160 ft (49 m) south though a 

few areas of habitat north of the road are 

also captured. Unit 3 serves as an 

expansion, to encompass scrub habitat, 

of critical habitat Zone 2 that was 

designated at the time of listing (50 FR 

23872; June 6, 1985). This unit contains 

the features essential to the conservation 

of the subspecies; all five PCEs are 

present in varying amounts throughout 

this unit. 

This unit, combined with the 

neighboring Perdue Unit of the Refuge 

and several properties with 

conservation plans that are being 

excluded (see ‘‘Application of 

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

Act’’ section), contains the largest 

assemblage of high elevation habitat 

within the range of the ABM (ACOE 

2001, Plate 2–11; ENSR 2004, pp. 3–5 

through 4–1; Service 2004a, pp. 9–12; 

Service 2004b, p. 6; Service 2005a, pp. 

2–4). The largest tracts of contiguous 

habitat possessing a full gradient of 

ABM habitat (primary dunes landward 

to scrub dunes) are also found here. 

ABM occupancy is well documented 

both at the time of listing (Meyers 1983, 

pp. 5, 12–21; Holliman 1983, pp. 125–

126) and recently (Endangered Species 

Consulting Services, LLC and ENSR 

Corporation 2001, p. 22; Farris 2003). 

ABM were found here following 

Hurricane Ivan (Endangered Species 

Consulting Services 2004, p. 2; 2004d, 

p. 2). Threats that may require special 

management include habitat 

degradation and fragmentation, 

extensive recreational pressure, poststorm cleanups, artificial lighting, 

predation, and human-generated refuse. 


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Unit 4: Pine Beach 

This unit consists of 30 ac (12 ha) 

including a BLM property and 27 

private inholdings within the Perdue 

Unit of the Refuge that are not managed 

under the Refuge’s Comprehensive 

Conservation Plan. The primary and 

secondary dunes within this unit were 

part of ‘‘Zone 2’’ of the original critical 

habitat designation, which extended 

from the mean high tide line of the Gulf 

of Mexico landward 500 ft (152 m). 

ABM are well documented from the area 

both recently (Rave and Holler 1992, pp. 

349–350; Swilling et al. 1998, pp. 289–

294; Sneckenberger 2001, pp. 66–69; 

Service 2003, p. 1) and from the time of 

listing (Holliman 1983, p. 126; Meyers 

1983, pp. 5, 12–21). This unit, along 

with adjacent Refuge lands and 

exclusions for single family homes 

covered by Service-approved HCPs (see 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ section), 

contains the features essential to the 

conservation of the ABM because of its 

high elevation habitat and continuity 

between habitat types. It contains PCEs 

2, 3, and 5, and when combined with 

the surrounding Refuge lands, it also 

includes PCEs 1 and 4. Threats that may 

require special management 

considerations on this unit may include 

artificial lighting from residences, 

human-generated refuse that may attract 

predators, habitat fragmentation from 

the design and construction of 

properties (and access routes) to 

inholdings, and primary and secondary 

dunefields impacted from recent storm 

events. 

Unit 5: Gulf State Park 

Unit 5 consists of 192 ac (78 ha) of 

ABM habitat in Gulf State Park, 

immediately east of the City of Gulf 

Shores and west of the City of Orange 

Beach. This unit retains most critical 

habitat designated in the 1985 listing 

rule (Zone 3—all primary and secondary 

dunes south of State Route 182) (June 6, 

1985; 50 FR 23872) and adds 

approximately 30 ac (12 ha) of scrub 

habitat located directly north of S.R. 

182. It extends from MHWL northward 

to a natural boundary consisting of 

brackish wetlands and maritime forest. 

ABM habitat covered under the 2004 

HCP and subsequent HCP–ITP 

modifications is excluded from the 

designation (see ‘‘Application of 

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

Act’’ section). 

This unit contains a mix of scrub and 

primary and secondary dune habitat, 

and represents the last remaining 

sizable block of habitat on the eastern 

portion of the historic range of the 

subspecies. 

ABM were documented from the Park 

in the late 1960s (Linzey 1970, p. 81), 

but were presumed extirpated by the 

early 1980s (Holliman 1983, pp. 123–

126; Holler and Rave 1991, p. 22–25), 

because of habitat isolation combined 

with the effects of tropical storms, 

predation (primarily from feral cats), 

and competition with house mice. This 

area was referred to as occupied in our 

final listing rule (June 6, 1985; 50 FR 

23872). ABM were reintroduced to the 

park in 1998, and subsequent trapping 

confirmed their presence there 

(Sneckenberger S., Service, personal 

communication, 2005; Service 2003, p. 

2). This unit was heavily impacted by 

Hurricane Ivan in 2004 (Service 2004a, 

pp. 5–6) and Hurricane Katrina in 2005 

(Service 2005a, pp. 6–9), and recent 

trapping has not located mice (Volkert 

2005, pp. 2–5). This unit contains PCEs 

2 and 3 and, therefore, possesses the 

habitat features essential to the 

conservation of the subspecies. Because 

this unit contains several PCEs, because 

it is presently occupied, and because 

ABM recovery depends on more 

populations than were documented at 

the time of listing, it is essential to the 

conservation of the subspecies. 

This unit is State-owned and managed 

by the State Parks Division of the 

ADCNR. It has pressures from heavy 

recreational use and ABM habitat here 

has been severely impacted by recent 

hurricanes. Threats to ABM habitat 

include loss of dune topography and 

vegetation from habitat destruction, 

human-generated refuse that could 

attract predators, and artificial lighting. 

Habitat fragmentation also threatens 

ABM within this unit. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

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

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of designated 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

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

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action because of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or critical habitat. Formal conferences 

are typically used when the Federal 

agency or the Service believes the 

proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 


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the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

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

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) a concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. We anticipate that at 

least one consultation will have to be 

reinitiated as a result of this 

designation. 

Federal activities that may affect ABM 

or their designated critical habitat will 

require section 7 consultation under the 

Act. Activities on State, Tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the Corps under 

section 404 of the Clean Water Act or a 

permit under section 10(a)(1)(B) of the 

Act from the Service) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the 

Alabama Beach Mouse and Its Critical 

Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for ABM 

jeopardy analyses that relies heavily on 

the importance of core area populations 

and connectivity to mouse survival and 

recovery. The section 7(a)(2) analysis is 

focused not only on these populations 

but also on the habitat conditions 

necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of Alabama beach mice in a 

qualitative fashion without making 

distinctions between what is necessary 

for survival and what is necessary for 

recovery. Generally, if a proposed 

Federal action is incompatible with the 

viability of the affected core area 

population(s), inclusive of associated 

habitat conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

population to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting ABM critical habitat. 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Generally, the conservation role of ABM 

critical habitat units is to support viable 

core area populations. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for Alabama beach mice is 

appreciably reduced. Activities that, 

when carried out, funded, or authorized 

by a Federal agency, may affect critical 

habitat and therefore result in 

consultation for Alabama beach mice 

include, but are not limited to: 

(1) Actions that would significantly 

alter dune structure or the degree of soil 

compaction. Such activities could 

include, but are not limited to, 

permanent conversion of ABM habitat 

for residential or commercial purposes, 

excessive foot traffic, and heavy use of 

construction, utility, or off-road vehicles 

in beach mouse habitat. These activities, 

even if temporary, could alter burrow 

construction, reduce the availability of 

potential burrow sites, and degrade or 

destroy beach mouse habitat. 

(2) Actions that would significantly 

alter the natural vegetation of the coastal 

dune community. Such activities could 

include, but are not limited to, allowing 

nonnative species to establish in the 

area, landscaping with grass or other 

nonindigenous plants, and landscaping 

that yields excessive leaf litter, mulch, 

or other foreign materials. These 

activities could alter beach mouse 

foraging activities and degrade or 

destroy beach mouse habitat. 

(3) Actions that would significantly 

alter natural lighting. Such activities 

could include, but are not limited to, 


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allowing artificial lighting that does not 

comply with wildlife-friendly lighting 

specifications. These activities could 

alter beach mouse foraging activities, 

increase predation upon beach mice, 

and reduce the use of otherwise suitable 

beach mouse habitat. 

(4) Activities that eliminate or 

degrade movement within and among 

designated critical habitat units. Actions 

such as bulkhead, canal, ditch, and wall 

construction; the permanent conversion 

of beach mouse habitat to residential or 

commercial development; changing of 

water elevations or flooding; the 

removal of vegetation; and excessive 

artificial lighting could effectively block 

east-west or north-south corridors 

among various habitat types, and, 

therefore, isolate habitat. 

The five critical habitat units are 

currently occupied by the subspecies, 

based on trapping data, our 2003 habitat 

map, and Service trapping protocol 

(Service 2005b, p. 2). All of the units 

included in this designation contain the 

features that are essential to the 

conservation of the ABM or are found to 

be essential for the conservation of the 

subspecies. Federal agencies already 

consult with us on activities in areas 

currently occupied by the ABM. If ABM 

may be affected by proposed actions, 

Federal agencies consult with us to 

ensure that their actions do not 

jeopardize the continued existence of 

ABM. This happens regardless of 

whether or not critical habitat is 

designated. 

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

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

critical habitat as the specific areas 

within the geographic area occupied by 

the species on which are found those 

physical and biological features (i) 

essential to the conservation of the 

species, and (ii) which may require 

special management considerations or 

protection. Therefore, areas within the 

geographic area occupied by the species 

that do not contain the features essential 

to the conservation of the species are 

not, by definition, critical habitat. 

Similarly, areas within the geographic 

area occupied by the species that 

require no special management or 

protection also are not, by definition, 

critical habitat. 

Perdue and Fort Morgan Units of the 

Bon Secour National Wildlife Refuge 

The Refuge finalized its 

Comprehensive Conservation Plan 

(CCP) in November 2005. This 

document details proposed conservation 

actions for the Refuge over a 15-year 

period, and outlines three objectives 

(implement monitoring protocol and 

manage beach and scrub habitat for the 

ABM) and two projects (standardize 

surveys and manage and evaluate scrub 

habitat for the ABM) that specifically 

address the subspecies. Many other 

objectives (for example, predator 

management plan) and projects (for 

example, develop biological database) 

would also benefit ABM. The Service 

has a statutory mandate to manage the 

refuge for the conservation of listed 

species, and the CCP provides a detailed 

implementation plan. We believe that 

the CCP provides a substantial 

conservation benefit to the subspecies, 

and there are reasonable assurances that 

it will be implemented properly and in 

an effective fashion within portions of 

the Perdue Unit of the Refuge that 

contain the PCEs for the ABM. 

Furthermore, the Refuge, especially on 

the Perdue Unit, has demonstrated its 

resolve for ABM conservation by 

continually engaging in dune restoration 

activities (including following 

Hurricanes Ivan and Katrina) and semiannual ABM trapping, and through 

outreach and education. Accordingly, 

we believe that the Perdue Unit of the 

Refuge does not meet the definition of 

critical habitat under section 3(5)(A) of 

the Act because a secure management 

plan is already in place to provide for 

the conservation of the ABM, and no 

special management or protection will 

be required. 

The Service also either owns or 

manages 510 ac (206 ha) of coastal dune 

habitat, most of which is occupied by 

ABM, within the boundaries of the Fort 

Morgan State Historic Site. These lands, 

collectively, are referred to as the Fort 

Morgan Unit of the Refuge, but are 

within the Historic Site. Of the 510 ac, 

approximately 480 ac (194 ha) are 

owned by the State but are managed by 

the Service through a cooperative 

management agreement with the 

Alabama Historical Commission. While 

the CCP outlines proposed management 

activities within the Fort Morgan Unit, 

we do not know whether the 

cooperative management agreement will 

be modified or terminated in the future 

and, therefore, if the conservation plan 

outlined within the CCP will be 

implemented. Areas containing the 

PCEs within these State-owned lands 

(and the approximately 30 ac (12 ha) of 

Federal land imbedded within them), 

therefore, may require special 

management or protection, and are 

being designated as critical habitat. 

Application of Exclusions Under 

Section 4(b)(2) of the Act 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. State, local, or private 

management plans, as well as 

management under Federal agencies’

jurisdictions, can provide protection 

and management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole, 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 

making this determination, we examine 

whether the plan provides management, 

protection, or enhancement of the PCEs 

that is at least equivalent to that 

provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion, and the Congressional record 

is clear that, in making a determination 

under the section, the Secretary has 

discretion as to which factors and how 

much weight will be given to any factor. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 


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following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned (EPA 

2003, p. 3–3) and at least 80 percent of 

endangered or threatened species occur 

either partially or solely on private 

lands (USGAO 1995, p. 4). Stein et al. 

(1995) found that only about 12 percent 

of listed species were found almost 

exclusively on Federal lands (90 to 100 

percent of their known occurrences 

restricted to Federal lands) and that 50 

percent of federally listed species are 

not known to occur on Federal lands at 

all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-Federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as HCPs, Safe 

Harbor Agreements, Candidate 

Conservation Agreements, Candidate 

Conservation Agreements with 

Assurances, and conservation challenge 

cost-share. Many private landowners, 

however, are wary of the possible 

consequences of encouraging 

endangered species to their property, 

and there is mounting evidence that 

some regulatory actions by the Federal 

government, while well-intentioned and 

required by law, can (under certain 

circumstances) have unintended 

negative consequences for the 

conservation of species on private lands 

(Wilcove et al. 1996; Bean 2002; Conner 

and Mathews 2002; James 2002; Koch 

2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found as illustrated by some of the 

public comments received on this 

proposal. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (for example, reintroduction, 

fire management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. 

The Department of the Interior’s Four 

C’s philosophy of conservation through 

communication, consultation, and 

cooperation is the foundation for 

developing the tools of conservation. 

These tools include conservation grants, 

funding for Partners for Fish and 

Wildlife Program, the Coastal Program, 

and cooperative-conservation challenge 

cost-share grants. Our Private 

Stewardship Grant program and 

Landowner Incentive Program provide 

assistance to private landowners in their 

voluntary efforts to protect threatened, 

imperiled, and endangered species, 

including the development and 

implementation of HCPs. 

Conservation agreements with nonFederal landowners (for example, 

Habitat Conservation Plans (HCPs), 

contractual conservation agreements, 

easements, and stakeholder-negotiated 

State regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

Habitat Conservation Plans (HCPs) 

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

authorizes us to issue to non-Federal 

entities a permit for the incidental take 

of endangered and threatened species. 

This permit allows a non-Federal 

landowner to proceed with an activity 

that is legal in all other respects, but 

that results in the incidental taking of a 

listed species (take that is incidental to, 

and not the purpose of, the carrying out 

of an otherwise lawful activity). The Act 

specifies that an application for an 

incidental take permit must be 

accompanied by a habitat conservation 

plan, and specifies the content of such 

a plan. The purpose of conservation 

plans is to describe and ensure that the 

effects of the permitted action on 

covered species are adequately 

minimized and mitigated, and that the 

action does not appreciably reduce the 

survival and recovery of the species. 

There are currently 51 HCP sites 

containing habitat we have identified as 

essential to the ABM conservation (see 

‘‘Criteria Used To Identify Critical 

Habitat’’ section). These include HCPs 

for 7 multifamily developments, 1 hotel 

and convention center complex, and 43 

single family homes. 

The completed HCPs and the 

associated ITPs issued by the Service 

contain management measures and 

protections for identified areas that 

protect, restore, and enhance the value 

of these lands as habitat for ABM. These 

measures include explicit standards to 

minimize any impacts to the ABM and 

its habitat. In general, HCPs are 

designed to ensure that the value of the 

conservation lands are maintained, 

expanded, and improved for covered 

species. 

For HCPs that have been already 

approved, we have provided assurances 

to permit holders that once the 

protection and management required 

under the plans are in place and for as 

long as the permit holders are fulfilling 

their obligations under the plans, no 

additional mitigation in the form of land 

or financial compensation will be 

required of the permit holders and, in 

some cases, specified third parties. 

A discussion of all HCP sites that we 

have identified as essential for the 

conservation of the subspecies follows. 


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Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 4351 

Multifamily Developments With HCPs 

and Issued ITPs 

HCPs for six multifamily 

developments along the Fort Morgan 

Peninsula were approved between 1994 

and 1996. These developments include, 

from west to east, The Dunes, Bay to 

Breakers, Kiva Dunes, Plantation Palms, 

The Beach Club, and Martinique, all of 

which were issued 30-year ITPs by the 

Service. The HCPs covering the 

properties are almost identical and 

consist of setting aside primary and 

secondary dune habitat in perpetuity, 

and the construction of dune walkovers 

within protected areas to minimize 

pedestrian impact to habitat. These 

HCPs also require the use of native 

plants in landscaping, control of 

domestic and feral cats, interpretive 

signage, minimal outdoor lighting, 

trapping surveys, and annual reports. 

HCPs for The Beach Club and 

Martinique developments also include 

the creation of endowment funds for use 

in future ABM conservation activities 

(such as research or habitat restoration). 

All of these properties have been 

developed as permitted or are nearing 

completion, and the areas within the 

properties that we have identified as 

containing the features that are essential 

to the conservation of the ABM consist 

of the acreage set aside as ABM 

conservation zones (see Table 2 above). 

Most of these conservation zones were 

designated as critical habitat at the time 

ABM was listed on June 6, 1985 (50 FR 

23885). 

On the basis of the conservation 

benefits afforded the ABM from the 

referenced HCPs and the provisions of 

section 4(b)(2) of the Act, we exclude 

from critical habitat the areas on these 

properties that contain the features that 

are essential to the conservation of the 

subspecies. We have further determined 

that the exclusion from critical habitat 

of these areas would not result in the 

extinction of the ABM. The rationale for 

this determination is below (see 

‘‘Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs’’). 

Proposed Beach Club West and Gulf 

Highlands Developments 

These projects consist of several 

proposed condominium towers and 

associated amenities. We were first 

approached by the proponents of Gulf 

Highlands in 1995 (and proponents of 

Beach Club West in 2000) about the 

development of a 187-ac (75-ha) site 

within Unit 3 of the designated critical 

habitat. While these two projects are 

separate, they are adjacent to one 

another, and we recommended they 

submit a joint ABM habitat conservation 

plan to streamline review and offer 

greater minimization and mitigation. 

The applicants submitted a habitat 

conservation plan for these projects in 

2001, and following subsequent 

environmental review, the Service 

issued ITPs to both parties in 2002. The 

Sierra Club and Friends of the Earth, 

Inc. filed an action in the United States 

District Court for the Southern District 

of Alabama challenging our 

environmental review of the projects 

under the National Environmental 

Policy Act and the Administrative 

Procedure Act. 

As a result of this litigation, the 

Service agreed to a voluntary remand of 

the environmental review and 

proceeded to develop an Environmental 

Impact Statement (EIS) to more 

thoroughly evaluate the impact of the 

proposed developments on the natural 

and human environments. The ITPs 

issued in 2002 were held in abeyance 

pending the outcome of this 

environmental review and of review of 

the projects under the Act. We 

completed our DEIS (which contained 

five alternatives) in early 2006 and 

announced its availability (and 

associated 90-day public comment 

period) in the Federal Register on April 

28, 2006 (71 FR 25221). We held a 

public hearing on the DEIS in Gulf 

Shores on June 26, 2006. The notice 

announcing the availability of a final 

EIS and determination to sign a record 

of decision (ROD) on Beach Club West—

Gulf Highlands was published in the 

Federal Register on November 29, 2006 

(71 FR 69141). Both the ROD and 

modified permit instruments were 

signed on January 10, 2007. 

The proposed developments involve 

the construction of six 20-story towers 

and a seventh smaller tower—clubhouse 

facility. This construction will 

permanently convert 40.5 ac (16.3 ha) of 

the total project site. With this design, 

the permittees have demonstrated they 

are minimizing the project footprint to 

the greatest extent possible through the 

clustering of the development in the 

eastern corner of the property, the use 

of parking garages, and the removal of 

some recreational facilities (such as 

tennis courts) from the original design. 

Construction of the projects will involve 

an additional 21.9 ac (8.9 ha) of 

temporary impacts to ABM habitat; 

however, according to the HCP, these 

areas will be restored to beach mouse 

habitat. Per the HCP, all other areas on 

the project site (with the exception of 

road right-of-way owned by Baldwin 

County) will be protected by restrictive 

covenants, permit and HCP conditions, 

or conservation easements. The 

permittees will permanently develop 

approximately 22 percent of the project 

site. 

The HCP for these projects outlines 

numerous conservation measures 

designed specifically for ABM. These 

measures include, but are not limited to, 

wildlife-friendly outdoor lighting, 

control of cats and house mice, an ABM 

outreach program, dune walkovers, 

collection of trapping data, and habitat 

restoration. Numerous measures 

designed to minimize temporary 

construction impacts (such as signage, 

placement of staging areas, removal of 

waste) are also outlined. In addition, in 

association with the Gulf Highlands 

HCP, the permittees have agreed to set 

aside 96.8 ac (39 ha) of lands that would 

be placed into conservation status 

through a conservation easement or 

other legal protective document. A 

perpetual conservation easement was 

created on October 30, 2000, for the Gulf 

Highlands Condominiums portion (42.6 

ac) of the conservation area in 

anticipation of ITP issuance and is held 

by the Baldwin County Commission. 

The Beach Club West portion (54.2 ac) 

of the conservation area is protected 

through a Declaration of Abandonment, 

filed with Baldwin County on April 15, 

2002. The private inholdings located 

within the project area that will not be 

part of this project, are not subject to the 

same restrictions, and are therefore 

included in the designation. 

Although approximately 6 ac (2 ha) of 

the area owned by the permittees and 

identified in this analysis as essential to 

the conservation of the subspecies is 

part of road rights-of-way retained by 

Baldwin County, these acres will be 

managed in accordance with the HCP 

for Gulf Highlands. As part of their 

inclusion in areas being managed with 

an HCP, the 6 acres surrounding these 

rights-of-way will have management 

including numerous conservation 

measures designed specifically for 

ABM. These measures include, but are 

not limited to, wildlife-friendly outdoor 

lighting, control of cats and house mice, 

an ABM outreach program, dune 

walkovers, collection of live-trapping 

data, and habitat restoration. Numerous 

measures designed to minimize 

temporary construction impacts (such as 

signage, placement of staging areas, 

removal of waste) are also outlined. 

Because these rights-of-way have not 

been vacated and transferred to the 

permittees, they could be developed in 

the future at the discretion of the 

County. However, should the County 

decide to pursue development of these 

areas, it would either have to pursue an 

incidental take permit or enter into 

section 7 consultation (depending upon 

the presence of a Federal nexus in the 


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project). Because these rights-of-way do 

not require additional management 

considerations or protection, they do 

not meet the definition of critical habitat 

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

On the basis of the conservation 

benefits afforded the ABM from the 

referenced HCP and the provisions of 

section 4(b)(2) of the Act, we exclude 

from critical habitat all areas within the 

Gulf Highlands-Beach Club West project 

sites containing the features essential to 

the conservation of the subspecies. This 

does not include any private inholdings 

as outlined above. We have further 

determined that the exclusion of these 

areas from critical habitat would not 

result in the extinction of the ABM. The 

rationale for this determination is below 

(see ‘‘Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs’’). 

Gulf State Park Hotel and Convention 

Center Complex 

In 2004, we approved an HCP for the 

demolition of existing Gulf State Park 

(GSP) and construction of a new hotel 

and convention center on the site. In 

response to hurricane impacts and the 

need to minimize future impacts, the 

ITP issued for this project was modified 

in 2005 to adjust the footprint of the 

GSP beach pavilion and parking lot. The 

new GSP complex will replace the 

current facilities (which were destroyed 

during Hurricane Ivan) and its 

construction will result in a net gain of 

3 ac (1 ha) of ABM habitat due to 

improved siting and design of the 

structures and restoration work outlined 

in the HCP. The HCP covers both the 

construction and operation of the 

facilities; outlines an aggressive strategy 

for the control of roaming cats, house 

mice, and refuse; and includes wildlifefriendly lighting, native landscaping, 

and visitor outreach on the fragile 

coastal environment (including outreach 

concerning the ABM). The area covered 

by the HCP and ITP includes the 43 ac 

(17 ha) surrounding the complex. In 

February 2006, ADCNR informed us of 

new plans to consolidate the new 

fishing pier (the previous pier was 

destroyed during Hurricane Ivan) with 

the convention center complex. This 

consolidation involves demolition and 

restoration of the old pier (and 

associated parking area) and 

construction of a new pier 250 ft to the 

east. By moving the pier and associated 

parking eastward into the previously 

authorized development footprint, the 

revised plan reduces impacts to ABM 

habitat by 2 ac (1 ha). The new pier will 

also feature state-of-the-art, wildlifefriendly lighting (mainly shielded, low 

wattage-low pressure sodium lighting) 

and, therefore, result in much less light 

pollution than the old pier, thereby 

reducing impacts to sea turtles. 

On the basis of the conservation 

benefits afforded the ABM from this 

HCP and the provisions of section 

4(b)(2) of the Act, we exclude from 

critical habitat the 43 ac (17 ha) covered 

area, portions of which we have 

identified to contain the features that 

are essential to the conservation of the 

subspecies. We have further determined 

that the exclusion of this area from 

critical habitat would not result in the 

extinction of the ABM. The rationale for 

this determination is below (see 

‘‘Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs’’). 

Single Family Homes 

Prior to August 2004, we approved 

HCPs for the construction of two singlefamily homes in the Cabana Beach 

subdivision. Portions of both these 

properties have been determined to 

contain the features that are essential to 

the conservation of the ABM. In August 

2004, we approved HCPs and issued 

ITPs for the construction of 11 

additional single family homes in 

occupied ABM habitat. Four of these 

properties have been determined to 

contain features essential to the 

conservation of the ABM (see ‘‘Criteria 

Used To Identify Critical Habitat’’). In 

September 2005, we approved HCPs for 

the construction of 55 more residences 

within occupied ABM habitat. Thirtyseven of these properties (11 of which 

are located within ‘‘The Dunes’’

development) have been determined to 

be essential to the ABM. The HCPs and 

ITPs covering all of these properties, 

while under and after construction, 

require a small developed footprint 

(typically no larger than 0.1 ac (0.004 

ha)) for all structures and driveways, the 

construction of a dune walkover for 

Gulf-front lots, and the conservation of 

the remaining ABM habitat on the 

property for the duration of the ITP. The 

HCPs also call for wildlife-friendly 

lighting, landscaping with native plants, 

control of domestic pets (cats), and 

refuse control. The associated ITPs are 

valid for 50 years, and ITP permit 

conditions are transferable if property 

ownership changes. 

On the basis of the conservation 

benefits afforded the ABM from the 

referenced HCPs and the provisions of 

section 4(b)(2) of the Act, we are 

excluding from critical habitat ABM 

habitat within these 43 properties that 

contain features essential to ABM 

conservation and are covered by HCPs 

and issued ITPs. We have further 

determined that the exclusion of these 

areas from critical habitat would not 

result in the extinction of the ABM. The 

rationale for this determination is below 

(see ‘‘Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs’’). 

Following is our analysis of the 

benefits of including lands within 

approved HCPs versus excluding such 

lands from this critical habitat 

designation. 

(1) Benefits of Inclusion of 51 Areas 

Protected Through Service-Approved 

HCPs 

The principal regulatory benefit of 

critical habitat is that federally 

authorized, funded, or carried out 

activities require consultation pursuant 

to section 7 of the Act to ensure that 

they will not destroy or adversely 

modify critical habitat. In the Gifford 

Pinchot decision, the U.S. Court of 

Appeals for the Ninth Circuit ruled that 

adverse modification evaluations 

require consideration of impacts on the 

recovery of species (379 F.3d 1059, 

1070–1072). Conducting section 7 

consultations would provide benefits on 

HCP lands with a Federal nexus by 

helping ensure the integrity of these 

lands is maintained. For example, if a 

federally funded road project was 

proposed to cross HCP lands that were 

designated as critical habitat, a 

consultation would need to be 

conducted to ensure the designated 

critical habitat was not destroyed or 

adversely modified. However, the 

presence of ABM would trigger 

consultation under section 7 of the Act 

under the jeopardy standard regardless 

of whether critical habitat is designated. 

Designation of critical habitat also 

serves to educate landowners, State and 

local governments, and the public, 

regarding the potential conservation 

value of the area. This helps focus, 

prioritize, and revitalize conservation 

efforts, such as dune restoration 

projects, or more extensive monitoring 

of beach mouse populations. 

(2) Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs 

We identified a number of possible 

benefits of excluding the area covered 

by the 51 HCPs from critical habitat 

designation. First, exclusion would 

reduce largely redundant administrative 

costs of section 7 consultation. There is 

no added value in designating these 51 

HCP sites as critical habitat because 

they are subject to the legally 

enforceable conditions of ITPs. HCP 

sites are still protected by the section 7 

‘‘jeopardy standard’’ in the event a 

Federal action may adversely affect 

mice there. For instance, if a federally 

funded roadway project were planned to 

bisect an HCP site, the Federal action 

agency would still be required to 


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consult with us regarding whether or 

not the roadway would adversely affect 

ABM. Second, exclusion would help to 

foster an atmosphere of cooperation in 

the conservation of endangered species. 

HCPs and other conservation 

partnership efforts typically provide far 

greater conservation benefits to species 

than the limited benefits arising from 

critical habitat designation. The latter 

benefits are restricted to actions with a 

Federal nexus and can require only that 

the action not adversely modify the 

habitat. It cannot compel, and in 

practice may discourage, the sort of 

active management actions that 

generally are needed to recover listed 

species. Two of our HCP sites have 

provided endowments for beach mouse 

conservation, and these sites and other 

multifamily developments provide us 

with seasonal trapping data vital to 

beach mouse conservation efforts. 

Through the HCP program, we also 

retain the permission to live-trap and 

monitor habitat on private land, 

something that a critical habitat 

designation does not confer. 

Conservation areas within HCP sites we 

have identified as essential to the 

conservation of the species are protected 

from predators, subject to rules 

restricting uncontained human refuse 

and excessive artificial light, and 

conservation subject to a host of other 

beneficial requirements that are not 

conveyed by critical habitat designation. 

Through developing positive 

conservation relationships with 

property owners along the Alabama 

coastline, we are able to partner with 

private landowners in habitat 

restoration, conduct beach mouse 

translocations, and monitor 

populations, thereby facilitating 

recolonization of previously inhabited 

areas, encouraging and providing 

suitable habitat for the long-term 

persistence of beach mice, obtaining 

more information on the subspecies, 

and improving and discovering new 

techniques and opportunities that will 

assist in ABM recovery. While these 

activities are admittedly required by 

HCPs and associated ITPs, our 

relationships with permittees and other 

private stakeholders, which are 

extremely important for ABM 

conservation (see ‘‘Conservation 

Partnerships’’ section above), could be 

damaged by unnecessary regulation. 

Exclusion would provide an incentive 

for participation in the development of 

new HCPs and non-HCP-related ABM 

conservation activities. The exclusion of 

HCP lands from critical habitat 

designations is an important incentive 

for participation in the HCP program; on 

the other hand, failure to exclude HCP 

lands could undermine the conservation 

benefits provided by the HCP program, 

and, more generally, the partnerships 

required to conserve most listed species. 

It is possible, although unlikely, that 

Federal action will be proposed that 

would be likely to destroy or adversely 

modify the essential habitat within the 

area governed by these HCPs. If such a 

project was proposed, due to the 

specific way in which jeopardy and 

adverse modification are analyzed for 

ABM (we monitor take through habitat 

loss), it would likely also jeopardize the 

continued existence of the species. In 

addition, we expect that the benefit of 

informing the public of the importance 

of this area to ABM conservation would 

be slight due to the fact that there was 

a previous designation of critical habitat 

for ABM in many of these areas (that 

underwent public notice and comment), 

the HCPs themselves underwent public 

review and comment, and this 

designation has undergone public 

review and comment. It is now public 

knowledge that conservation areas 

within many areas with Servicesponsored HCP sites contain the 

physical and biological features 

essential to the conservation of the 

species. Therefore, we assigned 

relatively little weight to the benefits of 

designating this area as critical habitat. 

In contrast, although the benefits of 

encouraging participation in HCPs, 

(particularly large-scale HCPs) and 

helping to foster cooperative 

conservation are indirect, enthusiastic 

HCP participation and an atmosphere of 

cooperation are crucial to the long-term 

effectiveness of the endangered species 

program. 

(3) Benefits of Exclusion of 51 Areas 

Protected by Service-Approved HCPs 

Outweigh the Benefits of Inclusion 

We have assigned great weight to the 

benefits of excluding certain lands from 

this critical habitat designation, since 

we believe conservation is best fostered 

in a voluntary environment. To the 

extent that there are regulatory benefits 

of including these lands as critical 

habitat, the associated costs could be 

avoided by excluding the areas from 

designation. We expect the regulatory 

benefits to be slight, because these areas 

are currently occupied, and consultation 

will occur regardless of critical habitat 

designation. 

We have determined that the benefits 

of inclusion of the areas covered by 

these 51 HCPs are small, while the 

benefits of exclusion are substantial. 

Through these measures identified 

above, we believe that for these 51 sites, 

the benefits of exclusion outweigh the 

benefits of inclusion. 

(4) Exclusion Will Not Result in 

Extinction 

Because we anticipate that little, if 

any, conservation benefit to the ABM 

will be foregone as a result of excluding 

these areas (ABM in these areas are 

protected by sections 7 and 9 of the Act 

regardless of whether critical habitat is 

designated), the exclusion will not 

result in the extinction of the ABM. 

Accordingly, we exercise discretion 

under section 4(b)(2) to exclude the 

areas covered by these HCPs from the 

designation of critical habitat for the 

ABM. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 


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contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

believe the conservation achieved 

through implementing habitat 

conservation plans (HCPs) or other 

habitat management plans is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any HCP or management plan that 

considers enhancement or recovery as 

the management standard will always 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the ABM. In general the 

educational benefit of a critical habitat 

designation always exists, although in 

some cases it may be redundant with 

other educational effects. For example, 

HCPs have significant public input and 

may largely duplicate the educational 

benefit of a critical habitat designation. 

This benefit is closely related to a 

second, more indirect benefit: that 

designation of critical habitat would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas were 

included in the proposed rule as having 

habitat containing the features essential 

to the conservation of the species. 

Consequently, we believe that the 

informational benefits are already 

provided, even though these areas are 

not designated as critical habitat. 

Additionally, the purpose normally 

served by the designation, that of 

informing State agencies and local 

governments about areas that would 

benefit from protection and 

enhancement of habitat for the ABM, is 

already well established among State 

and local governments, and Federal 

agencies in those areas that we are 

excluding from critical habitat in this 

rule on the basis of other existing 

habitat management protections. 

The information provided in this 

section applies to all the discussions 

herein that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Relationship of Critical Habitat to 

Economic Impacts—Exclusions Under 

Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act allows the 

Secretary to exclude areas from critical 

habitat for economic reasons if he 

determines that the benefits of such 

exclusion exceed the benefits of 

designating the area as critical habitat, 

unless the exclusion will result in the 

extinction of the species concerned. 

Congress has granted this discretionary 

authority to the Secretary with respect 

to critical habitat. Although economic 

and other impacts may not be 

considered when listing a species, 

Congress has expressly required their 

consideration when designating critical 

habitat. 

In making the exclusions, we have, in 

general, considered that all of the costs 

and other impacts predicted in the 

economic analysis may not be avoided 

by excluding the area, because most or 

all of the areas in question are currently 

occupied by the listed species or 

considered essential to the conservation 

of the species, and there will be 

requirements for consultation under 

section 7 of the Act, or for permits 

under section 10 (henceforth 

‘‘consultation’’), for any take of these 

species, and other protections for the 

species exist elsewhere in the Act and 

under State and local laws and 

regulations. In conducting economic 

analyses, we are guided by the 10th 

Circuit Court of Appeal’s ruling in the 

New Mexico Cattle Growers Association 

case (248 F.3d at 1285), which directed 

us to consider all impacts, ‘‘regardless of 

whether those impacts are attributable 

co-extensively to other causes.’’ As 

explained in the analysis, due to 

possible overlapping regulatory schemes 

and other reasons, some elements of the 

analysis may also overstate some costs. 

Conversely, the Ninth Circuit has 

recently ruled (Gifford Pinchot, 378 F.3d 

at 1071) that the Service’s regulations 

defining ‘‘adverse modification’’ of 

critical habitat are invalid because they 

define adverse modification as affecting 

both survival and recovery of a species. 

The Court directed us to consider that 

determinations of adverse modification 

should be focused on impacts to 

recovery. While we have not yet 

proposed a new definition for public 

review and comment, compliance with 

the Court’s direction may result in 

additional costs associated with the 

designation of critical habitat 

(depending upon the outcome of the 

rulemaking). In light of the uncertainty 

concerning the regulatory definition of 

adverse modification, our current 

methodological approach to conducting 

economic analyses of our critical habitat 

designations is to consider all 

conservation-related costs. This 

approach would include costs related to 

sections 4, 7, 9, and 10 of the Act, and 

should encompass costs that would be 

considered and evaluated in light of the 

Gifford Pinchot ruling. 

In addition, we have received several 

credible comments on the economic 

analysis contending that it 

underestimates, perhaps significantly, 

the costs associated with this critical 

habitat designation. Both of these factors 

are a balancing consideration against the 

possibility that some of the costs shown 

in the economic analysis might be 

attributable to other factors, or are 

overly high, and so would not 

necessarily be avoided by excluding the 

area for which the costs are predicted 

from this critical habitat designation. 


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Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

available and to consider the economic 

and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

August 8, 2006 (71 FR 44976). We 

accepted comments on the draft analysis 

until September 7, 2006. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of ABM critical habitat. 

This information is intended to assist 

the Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The draft economic analysis found 

that costs associated with conservation 

activities for the ABM are forecast to 

range from $18.3 million to $51.9 

million in undiscounted dollars over the 

next 20 years. Adjusted for possible 

inflation, the costs would range from 

$16.1 million to $46.9 million over 20 

years, or $1.1 million to $3.1 million 

annually using a three percent discount; 

or $14.2 million to $41.8 million over 20 

years, or $1.3 million to $3.9 million 

annually, using a seven percent 

discount. Although disproportionate 

impacts may exist, the areas that may 

suffer these impacts are already being 

excluded due to other reasons (see 

‘‘Application of Exclusions Under 

Section 4(b)(2) of the Act’’ for more 

detail). Therefore, the Service did not 

exclude any areas based on economics. 

A copy of the final economic analysis 

with supporting documents is included 

in our administrative record and may be 

obtained by contacting U.S. Fish and 

Wildlife Service, Branch of Endangered 

Species (see ADDRESSES) or by 

downloading from the Internet at 

http://www.fws.gov/daphne. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but will not have an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the tight 

timeline for publication in the Federal 

Register, the Office of Management and 

Budget (OMB) has not formally 

reviewed this rule. As explained above, 

we prepared an economic analysis of 

this action. We used this analysis to 

meet the requirement of section 4(b)(2) 

of the Act to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The SBREFA 

also amended the RFA to require a 

certification statement. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 


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potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect ABM. Federal agencies also must 

consult with us if their activities may 

affect critical habitat. Designation of 

critical habitat, therefore, could result in 

an additional economic impact on small 

entities due to the requirement to 

reinitiate consultation for ongoing 

Federal activities. 

In our economic analysis of the 

critical habitat designation, we 

evaluated the potential economic effects 

on small business entities resulting from 

conservation actions related to the 

listing of ABM and proposed 

designation of its critical habitat. This 

analysis estimated prospective 

economic impacts due to the 

implementation of ABM conservation 

efforts in five categories: residential and 

commercial real estate development 

activities, road construction and 

maintenance, tropical storms and 

hurricanes, species management and 

habitat protection activities, and 

recreation. We determined from our 

analysis that in four of these five 

categories, impacts of the ABM 

conservation efforts are not anticipated 

to impact small business. The small 

business entities that may be affected 

are private developers. Costs associated 

with residential and commercial 

development comprise 99 percent of the 

total quantified future impacts. Total 

costs are expected to be $18.1 to $51.3 

million (undiscounted) over the next 20 

years. Conservation effort costs include 

land preservation (set-asides), 

monitoring, and predator control that 

may be required of new development 

activity on private land. Approximately 

99 percent of developers in the region 

are considered small; thus, 1.6 small 

developers could be impacted each year. 

For those projects likely to be 

undertaken by a small entity, beach 

mouse conservation costs are estimated 

to be approximately $471,000 per 

typical developer. Assuming the annual 

revenues of an average small developer 

are $16.8 million (see the economic 

analysis for explanation of 

assumptions), the average annualized 

cost per project is roughly 2.8 percent of 

the typical annual sales. Therefore, we 

do not believe that the designation of 

critical habitat for the ABM will result 

in a disproportionate effect to small 

business entities. Please refer to our 

economic analysis of the critical habitat 

designation for a more detailed 

discussion of potential economic 

impacts. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the approximately four small 

businesses, on average, that may be 

required to consult with us each year 

regarding their project’s impact on ABM 

and their habitat. First, if we conclude, 

in a biological opinion, that a proposed 

action is likely to jeopardize the 

continued existence of a species or 

adversely modify its critical habitat, we 

can offer ‘‘reasonable and prudent 

alternatives.’’ Reasonable and prudent 

alternatives are alternative actions that 

can be implemented in a manner 

consistent with the scope of the Federal 

agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy or adverse modification of 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed animal or 

plant species, we may identify 

reasonable and prudent measures 

designed to minimize the amount or 

extent of take and require the Federal 

agency or applicant to implement such 

measures through non-discretionary 

terms and conditions. We may also 

identify discretionary conservation 

recommendations designed to minimize 

or avoid the adverse effects of a 

proposed action on listed species or 

critical habitat, help implement 

recovery plans, or to develop 

information that could contribute to the 

recovery of the species. 

Based on our experience with 

consultations pursuant to section 7 of 

the Act for all listed species, virtually 

all projects—including those that, in 

their initial proposed form, would result 

in jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule and this critical habitat designation. 

Within the designated critical habitat 

units, the types of Federal actions or 

authorized activities that we have 

identified as potential concerns are: 

(1) Regulation of activities affecting 

waters of the United States by the U.S. 

Army Corps of Engineers under section 

404 of the Clean Water Act; 

(2) The Service’s incidental take 

permitting program; 

(3) Road construction and 

maintenance funded by the Federal 

Highway Administration (FHA); and 

(4) Hazard mitigation and postdisaster repairs funded by the Federal 

Emergency Management Agency 

(FEMA). 

It is likely that a developer or other 

project proponent could modify a 

project or take measures to protect 

ABM. The kinds of actions that may be 

included if future reasonable and 

prudent alternatives become necessary 

include conservation set-asides, 

management of competing nonnative 

species, restoration of degraded habitat, 

and regular monitoring. These are based 

on our understanding of the needs of the 

species and the threats it faces, as 

described in the final listing rule and 

proposed critical habitat designation. 

These measures are not likely to result 

in a significant economic impact to 

project proponents. 

In summary, we have considered 

whether our designation of critical 

habitat for ABM would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 

information, that it is not likely to affect 

a substantial number of small entities. 

Federal involvement, and thus section 7 

consultations, would be limited to a 

subset of the area designated. The most 

likely Federal involvement could 

include: Corps permits, permits we may 

issue under section 10(a)(1)(B) of the 

Act (ITPs), FHA funding for road 

improvements, and activities funded by 


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FEMA. A regulatory flexibility analysis 

is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designate critical habitat for 

ABM is not expected to significantly 

affect energy supplies, distribution, or 

use. Therefore, this action is not a 

significant energy action and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), the rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with the Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

Florida and Alabama. The designation 

of critical habitat in areas currently 

occupied by ABM may impose nominal 

additional regulatory restrictions to 

those currently in place and, therefore, 

may have little incremental impact on 

State and local governments and their 

activities. The designation may have 

some benefit to these governments in 

that the areas that contain the features 

essential to the conservation of the 

species are more clearly defined, and 

the primary constituent elements of the 

habitat necessary to the conservation of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

We are designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This final rule 

uses standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the ABM. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 


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determination in the Federal Register 

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

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

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

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

(1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no Tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation and no Tribal lands that 

are unoccupied areas that are essential 

for the conservation of the ABM. 

Therefore, designation of critical habitat 

for the ABM has not been designated on 

Tribal lands. 

Takings 

In accordance with Executive Order 

12630, (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating 1,211 ac 

(490 ha) of lands in Baldwin County, 

Alabama as critical habitat for the 

Alabama beach mouse in a takings 

implication assessment. The takings 

implications assessment concludes that 

this final designation of critical habitat 

does not pose significant takings 

implications for lands within or affected 

by the designation. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Daphne Field Office (see ADDRESSES). 

Author(s) 

The primary author of this package is 

the Daphne Field Office of the U.S. Fish 

and Wildlife Service. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 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)’’ to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Alabama Beach Mouse (Peromyscus 

polionotus ammobates) 

(1) Critical habitat units are depicted 

for Baldwin County, Alabama, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for the Alabama Beach 

Mouse are the habitat components that 

provide: 

(i) A contiguous mosaic of primary, 

secondary, and scrub vegetation and 

dune structure, with a balanced level of 

competition and predation and few or 

no competitive or predaceous nonnative 

species present, that collectively 

provide foraging opportunities, cover, 

and burrow sites. 

secondary dunes, generally dominated 

by sea oats (Uniola paniculata), that 

despite occasional temporary impacts 

and reconfiguration from tropical storms 

and hurricanes, provide abundant food 

resources, burrow sites, and protection 

from predators. 

(iii) Scrub dunes, generally dominated 

by scrub oaks (Quercus spp.), that 

provide food resources and burrow 

sites, and provide elevated refugia 

during and after intense flooding due to 

rainfall and/or hurricane-induced storm 

surge. 

(iv) Unobstructed habitat connections 

that facilitate genetic exchange, 

dispersal, natural exploratory 

movements, and recolonization of 

locally extirpated areas. 

(v) A natural light regime within the 

coastal dune ecosystem, compatible 

with the nocturnal activity of beach 

mice, necessary for normal behavior, 

growth, and viability of all life stages. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airport runways, roads, other 

paved areas, and piers) and the land on 

which they are located existing within 

the legal boundaries on the effective 

date of this rule. 

(4) Critical habitat map units. Data 

layers defining map units were created 

by delineating habitats that contained 

one or more of the PCEs defined in 

paragraph (2) of this entry, over 2005 

Baldwin County, Alabama color 

photography (UTM 16, NAD 83). 

(5) Note: Index Map (Map 1) follows: 

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(6) Unit 1: Fort Morgan, Baldwin 

County, Alabama. 

(i) General Description: Unit 1 

consists of 446 ac (180 ha) at the 

extreme western tip of the Fort Morgan 

Peninsula in Baldwin County, Alabama. 

This unit encompasses essential features 

of Alabama beach mouse habitat within 

the boundary of the Fort Morgan State 

Historic Site and adjacent properties 

west of the Bay to Breakers 

development. The southern and western 

extents are the mean high water level 

(MHWL). The unit extends northward to 

either the seaward extent of maritime 

forest, developed features associated 

with the Fort Morgan State Historic Site, 

or Ft. Morgan Parkway. 

(ii) Coordinates: From the Fort 

Morgan and Saint Andrews Bay USGS 

1:24,000 quadrangle maps, Alabama, 

land bounded by the following UTM 16 

NAD 83 coordinates (E, N): 401473.62, 

3344763.21; 401547.57, 3344692.62; 

401513.96, 3344669.09; 01503.87, 

3344514.47; 401369.42, 3344440.53; 

401577.82, 3344356.49; 402008.06, 

3344443.89; 402169.41, 3344622.04; 

402525.70, 3344682.54; 403820.62, 

3344782.93; 404628.95, 3344823.00; 

404623.54, 3344330.64; 404288.09, 

3344287.36; 403970.48, 3344745.87; 

403970.48, 3344230.37; 403292.55, 

3344087.17; 402583.77, 3343995.19; 

401269.00, 3343995.19; 400971.42, 

3344125.04; 400976.83, 3344206.20; 

401301.47, 3344628.22; 404286.32, 

3344756.22; 402854.33, 3344659.30; 

402903.74, 3344669.55; 402929.27, 

3344691.88; 403288.24, 3344682.82; 

403627.98, 3344721.72; 403654.87, 

3344714.12; 403590.33, 3344665.04; 

403546.85, 3344641.30; 403501.91, 

3344628.03; 403337.34, 3344622.77; 

403056.19, 3344638.97 

(iii) Note: Map of Unit 1, Fort Morgan 

(Map 2), follows: 


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(7) Unit 2: Little Point Clear, Baldwin 

County, Alabama. 

(i) General Description: Unit 2 

consists of 268 ac (108 ha) on the Fort 

Morgan Peninsula in Baldwin County, 

Alabama. This unit encompasses 

essential features of Alabama beach 

mouse habitat north of the mean high 

water line (MHWL) and south of the 

Alabama Department of Environmental 

Management Coastal Construction 

Control Line (as defined in Alabama 

Administrative Code of Regulations 

335–8–2–0.8) from the eastern property 

boundary of Bay to Breakers eastward to 

the western boundary of the Surfside 

Shores subdivision. This unit also 

includes essential features of Alabama 

beach mouse habitat 160 ft south 

(except where otherwise noted) of the 

centerline of Fort Morgan Parkway, from 

the eastern boundary of Bay to Breakers 

east to the western boundary of the 

Surfside Shores subdivision, and 

associated areas as depicted on Map 3 

in paragraph (7)(iii) of this entry and in 

the coordinates provided in paragraph 

(7)(ii) of this entry. 

(ii) Coordinates: From the Saint 

Andrews Bay USGS 1:24,000 

quadrangle map, Alabama, land 

bounded by the following UTM 16 NAD 

83 coordinates (E, N), except those areas 

covered by incidental take permits 

shown in the maps: 408673.97, 

3345088.73; 408690.96, 3345050.98; 

408964.63, 3345069.85; 408992.95, 

3345115.15; 409098.64, 3345124.59; 

409260.96, 3345071.74; 409306.26, 

3345047.20; 409421.39, 3345039.65; 

409421.39, 3345018.89; 409839.57, 

3345038.68; 410450.38, 3345133.36; 

410638.20, 3345180.70; 411632.04, 

3345331.96; 411819.06, 3345348.96; 

411819.06, 3345276.71; 411455.65, 

3345227.83; 411423.77, 3345234.20; 

411115.62, 3345195.95; 410735.21, 

3345138.57; 410735.21, 3345117.32; 

410129.52, 3345030.18; 405929.15, 

3344870.87; 406790.26, 3344915.69; 

406790.26, 3344944.50; 406889.49, 

3344986.11; 406915.10, 3344986.11; 

406947.11, 3344973.31; 406972.72, 

3344998.92; 406998.33, 3344960.50; 

407039.95, 3344973.31; 407065.56, 

3344950.90; 407148.55, 3344960.50; 

407232.02, 3345008.52; 407238.42, 

3345034.13; 407289.64, 3344954.10; 

407918.85, 3345054.48; 408411.28, 

3345026.14; 408414.83, 3345068.65; 

408687.61, 3345125.34; 408723.04, 

3345107.62; 406397.69, 3344654.51; 

408502.15, 3344816.39; 408502.15, 

3344974.12; 408369.32, 3344978.29; 

408074.61, 3345003.18; 407842.17, 

3344994.88; 407194.65, 3344878.65; 

406327.13, 3344837.15; 406318.83, 

3344720.92; 406181.85, 3344716.77; 

406165.25, 3344837.15; 404625.30, 

3344770.73; 408639.12, 3344982.42; 

408850.81, 3345011.48; 408626.67, 

3344828.84; 408904.77, 3345015.63; 

409021.00, 3345003.18; 409033.45, 

3344837.15; 410127.40, 3344881.42; 

409942.50, 3345003.19; 409321.94, 

3344964.94; 409122.17, 3344994.69; 

409122.17, 3344839.55; 411303.93, 

3344704.32; 410054.54, 3344754.13; 

410029.64, 3344741.68; 409992.28, 

3344745.83; 409963.23, 3344758.28; 

408879.87, 3344720.92; 407157.29, 

3344642.06; 406011.67, 3344509.23; 

405044.53, 3344417.91; 404700.02, 

3344343.20; 404624.32, 3344815.46; 

404709.17, 3344488.16; 405203.36, 

3344433.41; 405813.57, 3344509.70; 

406027.79, 3344616.83; 406662.44, 

3344675.99; 406677.12, 3344600.23; 

407261.66, 3344729.73; 407664.18, 

3344758.57; 407637.12, 3344658.32; 

408856.44, 3344833.42; 408903.73, 

3344832.33; 409944.78, 3344975.70; 

409961.53, 3344931.31; 409960.68, 

3344885.70; 409940.98, 3344852.55; 

410474.83, 3344831.25; 411896.05, 

3344778.56; 411897.06, 3344677.82; 

411898.98, 3345357.59; 411899.47, 

3345349.16; 411899.92, 3345333.36; 

411898.69, 3345292.29 

(iii) Note: Map of Unit 2, Little Point 

Clear (Map 3), follows: 

BILLING CODE 4310–55–P 


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BILLING CODE 4310–55–C 


ycherry on PROD1PC64 with RULES2ER30JA07.002</GPH>
4364 Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 

(8) Unit 3: Gulf Highlands, Baldwin 

County, Alabama. 

(i) General Description: Unit 3 

consists of 275 ac (111 ha) on the Fort 

Morgan Peninsula in Baldwin County, 

Alabama. This unit encompasses 

essential features of Alabama beach 

mouse habitat north of the mean high 

water line (MHWL) to the seaward 

extent of interdunal wetlands as 

depicted on Map 4 in paragraph (8)(iii) 

of this entry and in the coordinates in 

paragraph (8)(ii) of this entry. This unit 

also includes essential features of 

Alabama beach mouse habitat 160 ft 

south of the centerline of Fort Morgan 

Parkway (except some areas to the north 

as noted in paragraphs (8)(ii) and (8)(iii) 

of this entry). Unit 3 is bounded to the 

west by the eastern property line of the 

Morgantown subdivision and to the east 

by the western property line of 

Martinique on the Gulf. 

(ii) Coordinates: From the Pine Beach 

and Saint Andrews Bay USGS 1:24,000 

quadrangle maps, Alabama, land 

bounded by the following UTM 16 NAD 

83 coordinates (E, N), except those areas 

covered by incidental take permits 

shown in the maps: 

(A) Surfside Shores—412122.39, 

3344896.76; 412230.61, 3344952.19; 

412407.44, 3344970.66; 412407.44, 

3344997.06; 413286.34, 3345139.58; 

413283.70, 3344598.52; 411897.20, 

3344677.62; 411896.72, 3344778.70; 

411901.40, 3344895.52; 412585.68, 

3344637.82; 413286.36, 3345090.20; 

413224.06, 3345080.28; 413224.52, 

3344927.47; 413284.56, 3344937.39 

(B) Gulf Highlands—414393.00, 

3344536.62; 414393.00, 3344732.11; 

414676.12, 3344736.60; 415529.98, 

3344440.00; 414671.87, 3344524.00; 

414736.29, 3344520.49; 414736.41, 

3344546.27; 415324.89, 3344541.53; 

415326.46, 3344653.21; 415533.04, 

3344653.83; 415290.55, 3345011.54; 

415327.74, 3345011.79; 415327.61, 

3344980.39; 415290.42, 3344981.38; 

415308.84, 3344940.80; 415327.02, 

3344940.72; 415327.30, 3344910.13; 

415308.70, 3344910.21; 415358.01, 

3344940.99; 415376.61, 3344940.91; 

415376.48, 3344910.33; 415357.88, 

3344910.41; 415291.27, 3345081.38; 

415309.04, 3345081.30; 415309.47, 

3345085.02; 415291.28, 3345084.28; 

415326.74, 3345051.69; 415326.74, 

3345039.99; 415181.66, 3345041.16; 

415184.00, 3345052.86; 415174.64, 

3345051.69; 415174.64, 3345041.16; 

414954.68, 3345042.33; 414954.68, 

3344655.06; 414920.74, 3344656.23; 

414920.74, 3344761.53; 414735.88, 

3344762.70; 414735.88, 3344773.23; 

414921.91, 3344772.06; 414921.91, 

3344831.73; 414737.05, 3344832.90; 

414737.05, 3344843.43; 414921.91, 

3344842.26; 414923.08, 3344903.10; 

414735.88, 3344903.10; 414735.88, 

3344915.97; 414924.25, 3344913.63; 

414921.91, 3344972.13; 414738.22, 

3344974.47; 414738.22, 3344983.83; 

414921.91, 3344982.66; 414923.08, 

3345043.50; 414738.22, 3345043.50; 

414738.22, 3345054.03; 414921.91, 

3345054.03; 414921.91, 3345071.59; 

414953.51, 3345073.93; 414953.51, 

3345052.86; 414953.51, 3344876.19; 

(C) Gulf Shores Plantation—

414204.25, 3344552.35; 414204.25, 

3344725.37; 414343.57, 3344754.58; 

414341.32, 3344543.36 

(D) Cabana Beach—415938.37, 

3344420.63; 416333.53, 3344954.65; 

416756.08, 3344395.60; 416750.70, 

3344919.13; 415945.72, 3344968.29 

(E) ROW—413472.87, 3345602.80; 

413767.66, 3345609.58; 413781.21, 

3345585.86; 414496.15, 3345582.47; 

414760.44, 3345545.20; 414973.90, 

3345460.49; 415278.85, 3345487.60; 

416224.19, 3345470.66; 415654.96, 

3345426.61; 414973.90, 3345402.89; 

414533.42, 3345521.48; 413621.96, 

3345538.42; 411899.45, 3345292.57; 

411899.63, 3345333.23; 411898.97, 

3345349.21; 411898.28, 3345357.92; 

416599.61, 3345528.80; 416603.89, 

3345480.95 

(iii) Note: Map of Unit 3, Gulf 

Highlands (Map 4), follows: 

BILLING CODE 4310–55–P 


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Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 4365 


ycherry on PROD1PC64 with RULES2ER30JA07.003</GPH>
4366 Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 

(9) Unit 4: Pine Beach, Baldwin 

County, Alabama. 

(i) General Description: Unit 4 

consists of 30 ac (12 ha) on 27 

inholdings within the Perdue Unit of 

the Bon Secour National Wildlife Refuge 

as depicted on Map 5 in paragraph 

(9)(iii) of this entry and in the 

coordinates in paragraph (9)(ii) of this 

entry. 

(ii) Coordinates: From the Pine Beach 

USGS 1:24,000 quadrangle map, 

Alabama, land bounded by the 

following UTM 16 NAD 83 coordinates 

(E, N), except those areas covered by 

incidental take permits shown on the 

map in paragraph (9)(iii) of this entry: 

419890.08, 3344529.29; 419946.90, 

3344389.62; 420406.15, 3344394.35; 

420401.42, 3344342.27; 419587.07, 

3344320.96; 419589.44, 3344384.88; 

419658.09, 3344384.88; 419655.72, 

3344503.25; 419636.78, 3344503.25; 

419639.15, 3344534.02; 419783.19, 

3344531.65; 419783.55, 3344384.88; 

419803.49, 3344384.88; 421930.69, 

3344448.80; 421895.18, 3344446.43; 

422030.12, 3344465.37; 419842.74, 

3344635.81; 419797.76, 3344640.55; 

419688.86, 3344841.77; 419740.94, 

3344841.77; 419688.86, 3344645.28; 

419743.31, 3344642.92; 419740.94, 

3344593.20; 419688.86, 3344595.57; 

420294.50, 3345060.66; 420306.84, 

3345060.44; 420306.62, 3345022.12; 

420294.28, 3345022.34; 420148.12, 

3344725.77; 420190.73, 3344725.77; 

420188.36, 3344633.45; 420150.49, 

3344633.45; 420046.32, 3344728.14; 

420098.40, 3344728.14; 420098.40, 

3344635.81; 420046.32, 3344635.81; 

420046.32, 3344567.16; 420058.16, 

3344567.16; 420058.16, 3344545.86; 

420003.71, 3344545.86; 420003.71, 

3344638.18; 419906.65, 3344638.18; 

419927.96, 3344638.18; 419927.96, 

3344545.86; 419906.65, 3344548.22; 

419690.90, 3344778.02; 419740.44, 

3344772.85; 419801.19, 3344677.57; 

419842.01, 3344675.40; 421902.16, 

3344854.73; 421932.71, 3344858.24; 

421999.30, 3344843.90; 422029.66, 

3344830.25; 421996.44, 3344462.00 

(iii) Note: Map of Unit 4, Pine Beach 

(Map 5), follows: 


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4368 Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 

(10) Unit 5: Gulf State Park, Baldwin 

County, Alabama. 

(i) General Description: Unit 5 

consists of 192 ac (78 ha) in Gulf State 

Park east of the City of Gulf Shores in 

Baldwin County, Alabama. This unit 

encompasses essential features of 

Alabama beach mouse habitat north of 

the mean high water line (MHWL) to the 

seaward extent of either coastal 

wetlands, maritime forest, or Alabama 

beach mouse habitat managed under the 

2004 Gulf State Park habitat 

conservation plan. Exact boundaries are 

depicted on Map 6 in paragraph (10)(iii) 

of this entry and in the coordinates in 

paragraph (10)(ii) of this entry. 

(ii) Coordinates: From the Gulf Shores 

USGS 1:24,000 quadrangle map, 

Alabama, land bounded by the 

following UTM 16 NAD 83 coordinates 

(E, N), except those areas identified as 

developable in the current incidental 

take permit for the Alabama Department 

of Conservation and Natural Resources: 

438247.09, 3347462.61; 438384.26, 

3347485.47; 438504.29, 3347456.89; 

438738.63, 3347479.75; 438738.63, 

3347411.17; 438681.48, 3347405.45; 

438675.76, 3347193.97; 437681.24, 

3346988.21; 436938.21, 3346702.43; 

436349.50, 3346599.55; 435377.85, 

3346548.11; 435160.66, 3346490.95; 

435166.37, 3346736.72; 435606.47, 

3346856.75; 436572.41, 3346828.17; 

36572.41, 3346913.91; 436881.06, 

3347033.94; 436909.64, 3347068.23; 

437612.66, 3347325.43; 437818.42, 

3347319.72; 437829.85, 3347251.13; 

438035.61, 3347308.29; 438041.33, 

3347394.02; 435699.17, 3346883.42; 

435754.39, 3346634.94; 435940.75, 

3346652.19; 436154.72, 3346638.39; 

436368.69, 3346683.25; 436368.69, 

3346790.24 

(iii) Note: Map of Unit 5, Gulf State 

Park (Map 6), follows: 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / Rules and Regulations 4369 

* * * * * Dated: January 12, 2007. 

Todd Willens, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

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

BILLING CODE 4310–55–C 


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