Endangered and Threatened Wildlife and Plants; Critical Habitat for the Alabama Beach Mouse, 5516-5546 [06-688]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



[[Page 5515]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



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

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

[[Page 5516]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU46


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

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

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

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

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

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

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

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

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

[[Page 5517]]

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

Background

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

[[Page 5518]]

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

Previous Federal Actions

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

[[Page 5519]]

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

Critical Habitat

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

Methods

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

[[Page 5520]]

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

Primary Constituent Elements

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

Space for Individual and Population Growth and Normal Behavior

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

[[Page 5521]]

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

Protection From Hurricanes

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

Habitat Connectivity

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

[[Page 5522]]

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

Food Resources and Vegetative Cover

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

Burrow Sites

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

Habitats Protected From Anthropogenic Disturbance

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

[[Page 5523]]

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

Primary Constituent Elements for the Alabama Beach Mouse

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

Criteria Used To Identify Critical Habitat

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

[[Page 5524]]

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

Special Management Considerations or Protection

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

Proposed Critical Habitat Designation

    We are proposing five units as critical habitat for the ABM. The 
units described below constitute our best assessment, at this time, of 
the areas determined to be occupied by the AB