Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Alabama Beach Mouse, 4330-4369 [07-270]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Alabama Beach Mouse; Final Rule

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU46


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under the Act's section 4(b)(2), there are significant 
limitations on the regulatory effect of designation under the Act's 
section 7(a)(2). In brief, (1) Designation provides additional 
protection to habitat only where there is a Federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would take 
place (in other words, other statutory or regulatory protections, 
policies, or other factors relevant to agency decision-making would not 
prevent the destruction or adverse modification); and (3) designation 
of critical habitat triggers the prohibition of destruction or adverse 
modification of that habitat, but it does not require specific actions 
to restore or improve habitat.
    Currently, only 476 species, or 36 percent of the 1,311 listed 
species in the United States under the jurisdiction of the Service, 
have designated critical habitat. We address the habitat needs of all 
1,311 listed species through conservation mechanisms such as listing, 
section 7 consultations, the section 4 recovery planning process, the 
section 9 protective prohibitions of unauthorized take, section 6 
funding to the States, the section 10 incidental take permit process, 
and cooperative, non-regulatory efforts with private landowners. The 
Service believes that it is these measures that may make the difference 
between extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot). In that 
case, the Ninth Circuit invalidated the Service's regulation defining 
``destruction or adverse modification of critical habitat.'' In 
response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of

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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 non-contiguous habitat because 
dispersal likely occurs through inhabitable as well as uninhabitable 
habitat.
    Our Response: The Act requires us to designate critical habitat on 
the basis of the best scientific data available. ABM have been trapped 
in a variety of habitat types including primary and secondary dunes, 
scrub habitat, immediately adjacent to ephemeral wetlands, and along 
sparsely vegetated sand flats associated with roadway rights-of-way 
(Service 2003, p. 2; Farris 2003). With our designation, we have 
included all of these habitat types, and attempted to maintain 
connectivity between them. Neither information in our files nor 
published literature supports other habitat types as being essential to 
the conservation of the ABM. ABM may use uninhabitable habitat such as 
lawns, maritime forest, and permanent wetlands for dispersal, but we do 
not have evidence of this at this time. These habitat types therefore 
do not meet the requirements needed to be included in the critical 
habitat designation. We recognize that designation of critical habitat 
may not include all of the habitat areas that may eventually be

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

General Comments

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

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

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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 Service-approved HCP, 
then it may be removed from the designation under section 4(b)(2) of 
the Act if we determine that the benefits of excluding HCPs outweigh 
the benefits of inclusion (see Comment 2 and ``Application of 
Exclusions Under Section 4(b)(2) of the Act'' section). Developed areas 
(for example, building footprints and parking areas) associated with 
the HCP do not possess natural ABM habitat and are, therefore, not even 
considered for designation. As such, it is specifically the 
conservation areas associated with HCPs that are excluded under section 
4(b)(2).

[[Page 4336]]

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

Comments Related to Criteria and Methods Used To Designate Critical 
Habitat

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

[[Page 4337]]

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

Comments Related to Mapping

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

[[Page 4338]]

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

Comments Related to Site-Specific Areas

    (43) Comment: Critical habitat designation along the S.R. 180 (Fort 
Morgan Road) corridor would preclude utility companies from rapidly 
accessing lines in the event of a water or sewer line break.