[Federal Register: February 1, 2006 (Volume 71, Number 21)]
[Proposed Rules]
[Page 5515-5546]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe06-24]
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Part III
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; Critical Habitat for the
Alabama Beach Mouse; Proposed Rule
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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; Critical Habitat
for the Alabama Beach Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise critical habitat for the endangered Alabama beach mouse
(Peromyscus polionotus ammobates) pursuant to the Endangered Species
Act of 1973, as amended (Act). In total, approximately 1,298 acres (ac)
(525 hectares (ha)) fall within the boundaries of the proposed critical
habitat designation. The proposed critical habitat is located in
Baldwin County, Alabama.
DATES: We will accept comments from all interested parties until April
3, 2006. We must receive requests for public hearings, in writing, at
the address shown in the ADDRESSES section by March 20, 2006.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of the following methods:
1. You may submit written comments and information to the Acting
Field Supervisor, U.S. Fish and Wildlife Service, Daphne Fish and
Wildlife Office, 1208-B Main Street, Daphne, AL 36526.
2. You may hand-deliver written comments to our office, at the
above address.
3. You may send comments by electronic mail (e-mail) to
Abmcriticalhabitat@fws.gov. Please see ``Public Comments Solicited''
under SUPPLEMENTARY INFORMATION for file format and other information
about electronic filing.
4. You may fax your comments to 251-441-6222.
5. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
Comments and materials received, as well as supporting
documentation used in the preparation of this proposed rule, will be
available for public inspection, by appointment, during normal business
hours at the Daphne Fish and Wildlife Office at the above address.
FOR FURTHER INFORMATION CONTACT: Acting Field Supervisor, U.S. Fish and
Wildlife Service, 1208-B Main Street, Daphne, AL 36526 (telephone 251-
441-5181, facsimile 251-441-6222) or visit our Web site at http://www.fws.gov/daphne/
.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
Because we want any final action resulting from this proposal to be
as accurate and as effective as possible, we ask for comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons any habitat should or should not be determined to
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531
et seq.), including whether the benefit of designation will outweigh
any threats to the species caused by designation;
(2) Specific information on the amount and distribution of Alabama
beach mouse (ABM) habitat, including areas occupied by the ABM at the
time of listing and containing the features essential to the
conservation of the species, and areas not occupied at the time of
listing that are essential to the conservation of the species;
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities;
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments; and
(6) Information regarding the benefits of exclusion or inclusion of
the 337 acres (136 ha) within the proposed critical habitat revision
that are owned by the State near the Fort Morgan Historic Site in Unit
1, but that are managed by the Service through a cooperative management
agreement with the Alabama Historical Commission.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods (see ADDRESSES
section). Please submit Internet comments to abmcriticalhabitat@fws.gov
in ASCII file format and avoid the use of special characters or any
form of encryption. Please also include ``Attn: critical habitat
[AU46]'' in your e-mail subject header and your name and return address
in the body of your message. If you do not receive a confirmation from
the system that we have received your Internet message, contact us
directly by calling our Daphne Fish and Wildlife Office at phone number
251-441-5181. Please note that the Internet address
abmcriticalhabitat@fws.gov will be closed out at the termination of the
public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home addresses from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under section 4(b)(2) of the Act, there are significant
limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional
protection to habitat only where there is a Federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat, but it does not
require
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specific actions to restore or improve habitat.
Currently, only 470 species, or 37 percent of the 1,264 listed
species in the U.S. under the jurisdiction of the Service, have
designated critical habitat. We address the habitat needs of all 1,264
listed species through conservation mechanisms such as listing, section
7 consultations, the Section 4 recovery planning process, the Section 9
protective prohibitions of unauthorized take, Section 6 funding to the
States, the Section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas proposed for designation, we
evaluated the benefits of designation in light of Gifford Pinchot Task
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004).
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This proposed critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. Rather, it relies on the guidance issued by the
Director in response to the Gifford Pinchot decision (see ``Adverse
Modification Standard'' discussion below). The Service will carefully
manage future consultations that analyze impacts to designated critical
habitat, particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a time frame that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs of compliance with the
National Environmental Policy Act (NEPA; 42 U.S.C. 4371 et seq.). These
costs, which are not required for many other conservation actions,
directly reduce the funds available for direct and tangible
conservation actions.
Background
We intend to discuss only those topics directly relevant to the
critical habitat revision in this proposed rule. For more information
on the Alabama beach mouse, refer to the final listing rule published
in the Federal Register on June 6, 1985 (50 FR 23872).
The Alabama beach mouse (ABM) is one of five subspecies of the
oldfield mouse that inhabit coastal dune communities along the northern
coast of the Gulf of Mexico. It is a nocturnal rodent that burrows in
primary, secondary, and scrub dunes, and feeds on a variety of dune
plants and insects (Rave and Holler 1992; Moyers 1996; Sneckenberger
2001).
The ABM was historically restricted to approximately 33.5 miles of
coastline in Baldwin County, Alabama, including the Fort Morgan
Peninsula, Gulf Shores and Orange Beach, and Ono Island (50 FR 23872;
Holliman 1983; Meyers 1983; Holler and Rave 1991). At the time of
listing, the ABM was thought to occupy 10.6 miles of this historic
range (50 FR 23872), based on reports by Holliman (1983), who concluded
that ABM were found only on 333 acres of habitat and had been
extirpated from Ono Island, and contemporaneous research by Meyers
(1983) and Dawson (1983). Approximately 1,034 acres, divided into three
distinct zones that collectively represented the known range of the
subspecies, were designated as critical habitat at the time of listing
(50 FR 23872). This original critical habitat designation consisted
almost entirely of primary and secondary dunes. Primary constituent
elements (PCEs) were defined as dunes and interdunal areas, and
associated grasses and shrubs that provide food and cover (50 FR
23872). Presently, we estimate that approximately 2,600 acres of ABM
habitat exist throughout the historic range (Service 2003).
Coastal dune habitat along the Baldwin County, Alabama, coastline
is generally categorized as primary dunes, secondary dunes, interdunal
swales, and scrub dunes. Primary dunes consist of a continuous line of
dunes immediately landward of the wet beach characterized by sea oats
(Uniola paniculata) and other grasses such as bluestem (Schizachyrium
maritimum) and seaside panicum (Panicum amarum). Secondary dunes are
more sparsely vegetated rows of smaller sand dunes found landward of
primary dunes, often containing such plants as woody goldenrod
(Chrysoma
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pauciflosculosa) and false rosemary (Conradina canescens) in addition
to primary dune plants described above. Interdunal swales and seasonal
wetlands are sometimes associated with secondary dune systems. These
areas are generally bare sand, but may contain low spots with large-
headed nutgrass (Juncus megacephalus) and yellow nutgrass (Cyperus
esculentus). Scrub dunes, located landward of the secondary dunes, are
higher-elevation interior habitats that are often dominated by scrub
oaks (Quercus spp.) and yaupon holly (Ilex vomitoria). The highest
scrub habitat, called escarpment, often reaches elevations of 30 feet
(9 meters) or more (Baldwin County 2004) above sea level, and occurs
along an east-west line throughout the middle part of the Fort Morgan
Peninsula. The transition from scrub habitat to maritime forest, which
is characterized by large trees (pines and oaks), thick leaf litter,
and dense understory vegetation, frequently serves to delineate the
landward extent of suitable beach mouse habitat.
Since the ABM was listed, continued research has refined previous
knowledge of its habitat requirements, as well as factors influencing
its use of habitat. The findings most pertinent to this revision of
critical habitat involve the role of scrub dune habitat in the
population biology of the subspecies. Contrary to the early belief that
beach mice were restricted to (Howell 1909; 1921; Ivey 1949), or
preferred, the frontal dunes (Blair 1951; Pournelle and Barrington
1953; Bowen 1968), more recent research has shown that scrub habitat
serves an invaluable role in the persistence of ABM populations
(Swilling et al. 1998; Sneckenberger 2001). ABM occupy scrub habitat on
a permanent basis and, studies have found no detectable differences
between scrub and frontal dunes in beach mouse body mass, home range
size, dispersal, reproduction, survival, food quality, and burrow site
availability (Swilling et al. 1998; Swilling 2000; Sneckenberger 2001).
While seasonally abundant, the availability of food resources in the
primary and secondary dunes fluctuates (Sneckenberger 2001). In
contrast, the scrub habitat provides a more stable level of food
resources. This becomes crucial when food is scarce or nonexistent in
the primary and secondary dunes and suggests that access to scrub dune
habitat, in addition to primary and secondary dune habitat, is
essential to ABM.
In addition to providing burrow sites, food resources, and cover,
scrub dune habitat also serves as a high-elevation refuge during storm
events and as a population source as the frontal and secondary dunes
recover (Swilling et al. 1998; Sneckenberger 2001). Hurricanes can
severely affect ABM, as tidal surge and wave action overwash habitat,
leaving a flat sand surface denuded of vegetation and shearing or
eroding primary dunes and occasionally forming new channels between the
Gulf of Mexico and bays and lagoons, creating barriers to beach mouse
migration (Johnson 1997; Swilling et al. 1998; Service 2004a). Sand is
also deposited inland, completely or partially covering vegetation
(Johnson 1997; Swilling et al. 1998; Service 2004a). Until frontal dune
topography and vegetation redevelop, scrub habitat maintains beach mice
populations and has the majority of food resources and potential burrow
sites (Lynn 2000; Sneckenberger 2001). While storms temporarily reduce
population densities (often severely) and impact dune habitat, this
disturbance regime maintains open habitat and retards woody plant
succession, yielding a habitat more suitable for beach mice than one
lacking disturbance.
The low-nutrient soil of the coastal dune ecosystem receives a
pulse of nutrients from the deposition of vegetative debris along the
coastline (Lomascolo and Aide 2001). Therefore, as the primary and
secondary dunes recover, and food plants develop to take advantage of
the newly available nutrients, beach mice readily recolonize this
habitat. Habitat recovery times vary depending upon factors such as
hurricane characteristics (i.e., severity, amount of associated rain,
position of habitat relative to storm eye, storm speed), successional
stage of habitat prior to hurricane, and habitat elevation, impact to
habitat from hurricane 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
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Perdido Key beach mice was published in the Federal Register on
December 15, 2005 (70 FR 74426).
We briefed the ABM recovery team on our general plans to revise
critical habitat for the ABM on May 16, 2005. On November 9, 2005, we
briefed State and Federal agencies on the critical habitat process and
our 2004 declaration and on November 10, 2005, we held a critical
habitat informational meeting for the general public at the City of
Gulf Shores auditorium in Gulf Shores, Alabama, to discuss the critical
habitat process.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures that are necessary to bring an endangered or a threatened
species to the point at which listing under the Act is no longer
necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands.
To be included in a critical habitat designation, the habitat
within the area occupied by the species at the time of listing must
first have features that are essential to the conservation of the
species. Critical habitat designations identify, to the extent known
and using the best scientific data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements (PCEs), as defined at 50 CFR
424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) Accordingly, when the best available scientific data
do not demonstrate that the conservation needs of the species so
require, we will not designate critical habitat in areas outside the
geographic area occupied by the species at the time of listing. An area
that is currently occupied by the species but was not known to be
occupied at the time of listing will likely be essential to the
conservation of the species and, therefore, included in the critical
habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing rule for the species. Additional
information sources include the recovery plan for the species, articles
in peer-reviewed journals, conservation plans developed by States and
counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge. All information is used in accordance with the
provisions of Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas that contain the physical and
biological features essential to the conservation of the subspecies
(see Primary Constituent Elements section). We have reviewed the
overall approach to conservation of the subspecies undertaken by the
local, State, and Federal agencies operating within the species' range
since its listing, the original ABM recovery plan (Service 1987).
In our development of the primary constituent elements (PCEs) and
criteria for determining critical habitat (see Criteria section), we
reviewed the available information pertaining to the historic and
current distributions, life histories, habitats of, and threats to
beach mice in general, and where possible, to the ABM in particular. We
have also reviewed available information that pertains to the
population biology and habitat requirements of the ABM or closely
related subspecies, including data in reports submitted during section
7 consultations, and as a requirement from section 10(a)(1)(B)
incidental take permits or section 10(a)(1)(A) recovery permits;
hurricane-induced storm surge inundation estimates from field data and
models, research published in 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
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subspecies and habitat information, trapping data, recent biological
surveys, and reports and communication with other qualified biologists
or experts.
We began our analysis by considering the historic habitat available
to the subspecies. Early accounts of the ABM and the 1985 listing
document indicate that the natural historic range of the species
stretched from the tip of the Fort Morgan Peninsula (presently Fort
Morgan State Historic Site) eastward to Perdido Pass in Baldwin County,
Alabama (Howell 1909; Bowen 1968; 50 FR 23872; Holler and Rave 1991).
The north-south extent of this historic range is uncertain. Early
research and collection efforts focused on frontal dunes and,
therefore, we were unaware of the extent of scrub habitat usage by the
subspecies until recent studies became available. We now understand
beach mice in higher-elevation habitat tend to survive hurricanes, and
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 ABM at the time of listing
that contain one or more of the primary constituent elements and may
require special management, and those additional areas that were not
occupied at the time of listing, but were found to be essential for the
conservation of ABM. These five units, as well as the areas proposed
for exclusion below, represent our determination of those areas that
contain the physical and biological features that are and those
additional areas found to be essential to the conservation of the
subspecies. These additional areas are essential for the conservation
of the ABM for two main reasons. First, at the time of listing, beach
mice were thought to be restricted to the frontal dune habitat and
researchers did not focus on scrub habitat. Consequently, occurrence
information of beach mice in scrub habitat was sparse even in the
relatively recent past. However, scrub habitat is now known to be
invaluable to beach mice and inclusion of this habitat in critical
habitat is a main stimulus of this redesignation. Second, as the
coastal dune environment changes dramatically through time, so do beach
mouse populations. As dunes erode or build and habitat and food
resources fluctuate in response to coastal processes such as erosion
and tropical storm events, beach mouse populations respond accordingly,
either through short- or long-term movements, or through local
extinctions. As habitat improves in the future, densities increase or
beach mice recolonize the recovering areas. Because of this aspect of
their biology, and the fact that so few natural areas remain but mice
currently occupy these areas, these areas containing PCEs where beach
mice had not been detected at the time of listing are important to the
species' persistence. We have proposed only those areas that we believe
to be essential for the conservation of the ABM. For these reasons
listed above, we propose areas that were not known to be occupied at
the time of listing, but contain one or more of the PCEs and are
essential for the conservation of the beach mice.
We are proposing five areas as critical habitat for the ABM: (1)
Fort Morgan State Historic Site and adjacent lands (hereafter referred
to as Fort Morgan Unit), (2) lands along the right-of-way of Fort
Morgan Parkway (State Highway 180), and south of the Alabama Department
of Environmental Management's Coastal Construction Control line
(hereafter referred to as Little Point Clear Unit), (3) high-elevation
habitat in the Gulf Highlands (multifamily) area (Gulf Highlands Unit),
(4) Bureau of Land Management properties and private inholdings within
the Perdue Unit of the Refuge (hereafter referred to as Pine Beach),
and (5) Gulf State Park Unit. Table 1 below provides the approximate
area (acres/hectares) determined to meet the definition of critical
habitat for the ABM.
[[Page 5525]]
Table 1.--Areas Determined To Meet the Definition of Critical Habitat for the Alabama Beach Mouse and the Area
Proposed for Exclusion From the Final Critical Habitat
----------------------------------------------------------------------------------------------------------------
Area proposed
for exclusion
Definitional from final
Geographic area areas (acres/ designation Conservation plan type
hectares) (acres/
hectares)
----------------------------------------------------------------------------------------------------------------
The Dunes................................... 15/6 15/6 HCP.
Bay to Breakers............................. 3/1 3/1 HCP.
Kiva Dunes.................................. 50/20 50/20 HCP.
Plantation Palms............................ 12/5 12/5 HCP.
The Beach Club.............................. 15/6 15/6 HCP.
Martinique on the Gulf...................... 10/4 10/4 HCP.
Perdue Unit, Bon Secour NWR................. 1,063/430 1,063/430 CCP.
Gulf State Park............................. 171/69 44/18 HCP.
49 Single Family Homes...................... 17/7 17/7 HCP.
--------------------------------
Total (Baldwin County).................. 1356/548 1229/497
----------------------------------------------------------------------------------------------------------------
The approximate area encompassed within each proposed critical
habitat unit is shown in Table 2.
Table 2.--Critical Habitat Units Proposed for the Alabama Beach Mouse
[Area estimates reflect all land within critical habitat unit boundaries. We made efforts to remove areas
without PCEs]
----------------------------------------------------------------------------------------------------------------
Local and
Federal State (acres/ private Total (acres/
Critical habitat unit (acres/ hectares) (acres/ hectares)
hectares) hectares)
----------------------------------------------------------------------------------------------------------------
1. Fort Morgan.................................. 44/18 337/136 44/18 424/172
2. Little Point Clear........................... 16/6 82/33 173/71 264/106
3. Gulf Highlands............................... 11/4 47/19 338/137 388/157
4. Pine Beach................................... 11/5 .............. 21/8 32/13
5. Gulf State Park.............................. .............. 190/77 .............. 190/77
-----------------
Total....................................... 82/33 656/265 576/234 1,298/525
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of all units, and reasons why they
have the features that are essential for the conservation of the ABM,
below. Universal Transverse Mercator (UTM) coordinates and a more
precise legal description of each unit are provided in the Proposed
Regulation section.
Unit 1: Fort Morgan Unit
Unit 1 (Map 2) consists of 424 ac (172 ha) and encompasses ABM
habitat in the Fort Morgan State Historic Site and private lands to the
east. It is located at the extreme western edge of the ABM range, and
consists principally of habitat that was known to be occupied at the
time of listing (50 FR 23872; Holliman 1983) south of State Highway 180
(hereafter referred to as Fort Morgan Parkway in the rule text), with
the exception of a single line of high scrub dunes directly north of
the roadway and within the historic site boundaries. The actual Fort
and associated structures and developed areas that were included in the
original designation are not included in this proposed unit. The unit
extends from mean high water line (MHWL) northward to the break between
scrub dune habitat and either the maritime forest or developed
landscape (such as grassy areas associated with Fort Morgan State
Historic Site). The proposed unit is bounded to the west by Mobile Bay,
and to the east by Unit 2 (western property line of the ``Bay to
Breakers'' residential development) (see Unit 2 Description). Much of
Unit 1 is existing critical habitat that was designated at the time of
listing (50 FR 23872). We are proposing a minor expansion to
incorporate scrub habitat. ABM habitat within The Dunes development is
protected under an HCP: therefore, we propose to exclude from this Unit
(see Exclusions section).
ABM occurrence in the proposed unit over time is well documented
(Holliman 1983; 50 FR 23872; Rave and Holler 1992; Sneckenberger 2001)
and mice have been captured here following Hurricane Ivan (Endangered
Species Consulting Services 2004a; Service 2005a). Suspected ABM tracks
have been identified following Hurricanes Katrina and Rita (2005)
(Service 2005a). This unit contains the features essential to the
conservation of the subspecies. Some areas of the unit contain a
contiguous mix of primary and secondary dunes, interdunal swales,
wetlands, and scrub dunes, whereas other areas contain high-quality
primary and secondary dune habitat. While no one portion of the
proposed unit contains every PCE, all five PCEs are present.
Natural areas of the Fort Morgan Historic Site are owned by the
State of Alabama (Alabama State Historical Commission), but are
currently managed by the Refuge according to a cooperative agreement
(Service 2005d) (see ``Application of Section 3(5)(A) and Exclusions
Under Section 4(b)(2) of the Act'' section for further detail on
management). Threats in this unit that may require special management
considerations include human-
[[Page 5526]]
generated refuse and degraded habitat (from activities associated with
recreational use, for example).
Unit 2: Little Point Clear Unit
Unit 2 consists of 264 ac (106 ha) and includes east-west bands of
ABM habitat south of the Alabama Department of Environmental
Management's Coastal Construction Control Line (CCCL) (ADEM 1995) and
along the southern roadway right-of-way for Fort Morgan Parkway (see
Map 3). This Unit is bounded to the west by Unit 1 and extends eastward
to the western edge of the Surfside Shores subdivision (western
boundary of Unit 3). The CCCL varies in width but generally extends
about 300 feet (91 meters) landward of MHWL. The Fort Morgan Parkway
right-of-way, which is managed by the State of Alabama (Alabama
Department of Conservation and Natural Resources) extends 160 feet (49
meters) south of and parallel to the roadway centerline. Proposed
critical habitat does not include the road or shoulder of the Fort
Morgan Parkway. In several places along the east-west extent of these
units, additional parcels, either to the south of the Fort Morgan
Parkway or to the north of the CCCL, which contain the PCEs (see
Primary Constituent Element section) are proposed for inclusion in the
revised designation.
This unit, while often being inundated during storm surge events
(Service 2004a; ENSR 2004; ACOE 2001), represents the last remaining
natural habitat connections between ABM populations in and around Unit
1 and Unit 3, and provides an essential link between those populations
(PCE 4). Portions of this unit south of the CCCL contain PCE
2 and some sections of the right-of-way contain PCE
3. While this area was identified as being within the range of
the ABM (50 FR 23872; Holliman 1983, Dawson 1983), we have no records
that ABM were present at the time of listing. However, pre-hurricane
Ivan trapping has verified the presence of mice south of the CCCL
(Meyers 1983; 50 FR 23872; Endangered Species Consulting Services
2004b) and along the right-of-way (Sneckenberger 2001; Farris 2003). As
described above, due to life history aspects of ABM, because so few
natural areas remain for ABM, and because this unit is currently
occupied and contains two of the PCEs, we consider this unit essential
for the conservation of the subspecies. Habitat south of the CCCL
consists of primary and secondary dunes, while habitat along the right-
of-way consists primarily of scrub that is often temporarily disturbed
by utility line maintenance. This frequent disturbance may benefit ABM
by maintaining the habitat in an open condition.
This proposed unit is a mix of State, Federal, local, and private
ownership. Threats south of the CCCL that may require special
management include extensive recreational pressure and feral cats.
Unit 3: Gulf Highlands Unit
Unit 3 consists of 388 ac (157 ha) in the central portion of the
Fort Morgan Peninsula. It includes portions of the Morgantown, Surfside
Shores, and Cabana Beach subdivisions, as well as portions of the
proposed Beach Club West/Gulf Highlands development, Bureau of Land
Management properties, and some properties along the Fort Morgan
Parkway right-of-way (see Map 4). It is bounded to the west by Unit 2.
The main portion of the proposed unit generally stretches from MHWL
landward to a natural border of wetlands to the north. This portion is
bisected by ABM habitat associated with the Kiva Dunes, Plantation
Palms, Beach Club, and Martinique developments and is proposed for
exclusion because of its HCPs (see Exclusions section). The proposed
unit also contains an eastward continuation of ABM habitat adjacent to
the Fort Morgan Parkway. This northern portion of Unit 3 is bounded to
the west by Unit 2 and to the east by wetlands on the Martinique
property. Like the right-of-way corridor in Unit 2, it extends from the
centerline of Fort Morgan Parkway 160 feet (49 meters) to the south.
Unit 3 serves as an expansion of critical habitat Zone 2 that was
designated at the time of listing (50 FR 23872), but did not include
scrub habitat. This unit contains the features essential to the
conservation of the subspecies; all five PCEs are present in varying
amounts throughout this unit.
This proposed unit, combined with the neighboring Perdue Unit of
the Refuge and several properties with conservation plans that are
being proposed for exclusion (see Exclusions section), contains the
largest assemblage of high-elevation habitat within the range of the
ABM (ENSR 2004; ACOE 2001; Service 2004c). The largest tracts of
contiguous habitat possessing a full gradient of ABM habitat (primary
dunes landward to scrub dunes) are also found here. ABM occupancy is
well documented both at the time of listing (Meyers 1983; Holliman
1983) and recently (Endangered Species Consulting Services, LLC and
ENSR Corporation 2001; Farris 2003). Mice have been found here
following Hurricane Ivan (Endangered Species Consulting Services 2004c,
2004d). Threats that may require special management include habitat
degradation and fragmentation, extensive recreational pressure, post
storm cleanups, artificial lighting, predation, and human-generated
refuse.
Unit 4: Pine Beach
This unit (see Map 5) consists of 32 ac (13 ha), including a Bureau
of Land Management property and 27 private inholdings within the Perdue
Unit of the Bon Secour National Wildlife Refuge, not managed under the
Refuge's draft Comprehensive Conservation Plan. The primary and
secondary dunes within this unit were part of ``Zone 2'' of the
original critical habitat designation. ABM are well documented from the
area both recently (Rave and Holler 1992; Swilling et al. 1998; Service
2003) and from the time of listing (Holliman 1983; Meyers 1983). This
unit, along with adjacent Refuge lands (see Exclusions section),
contains the features essential to the conservation of the ABM because
of its high-elevation habitat and continuity between habitat types. It
contains PCEs 2, 3, and 5, and when combined with the surrounding
Refuge lands, it also includes PCEs 1 and 4. Threats that may require
special management considerations on this unit may include artificial
lighting from residences, human-generated refuse that may attract
predators, feral cats, habitat fragmentation from the design and
construction of properties (and access routes) to inholdings, and
primary and secondary dunefields impacted from recent storm events.
Unit 5: Gulf State Park
Unit 5 consists of 190 ac (77 ha) of ABM habitat in Gulf State
Park, immediately east of the City of Gulf Shores and west of the City
of Orange Beach (see Map 6). This unit retains most critical habitat
designated in the 1985 listing rule (Zone 3--all primary and secondary
dunes south of State Route 182) (50 FR 23872) and adds approximately 30
ac (12 ha) of scrub habitat located directly north of S.R. 182. It
extends from MHWL northward to a natural boundary consisting of
brackish wetlands and maritime forest. ABM habitat that is covered
under the 2004 HCP is proposed for exclusion from the designation (see
Exclusions section).
This unit contains a mix of scrub and primary and secondary dune
habitat, and represents the last remaining sizable block of habitat on
the eastern portion of the historic range of the subspecies.
Mice were documented in the Park in the late 1960s (Linzey 1970),
but were
[[Page 5527]]
presumed extirpated by the early 1980s (Holliman 1983; Holler and Rave
1991), because of habitat isolation combined with the effects of
tropical storm, predation (primarily from feral cats), and competition
with house mice. However, critical habitat designated in the Park at
the time of listing was referred to as occupied in our final listing
rule (50 FR 23872). Therefore, we consider this area to be occupied at
the time of listing. ABM were reintroduced to the park in 1998, and
subsequent trapping confirmed their presence there (Sneckenberger S.,
Service, personal communication, 2005; Service 2003b). This proposed
unit was heavily impacted by Hurricane Ivan in 2004 (Service 2004a) and
Hurricane Katrina (2005) and recent trapping has not located mice
(Volkert 2005). This unit contains PCEs 2 and 3 and, therefore,
possesses the habitat features essential to the conservation of the
subspecies.
This proposed unit is State-owned and managed by the State Parks
Division of the Alabama Department of Conservation and Natural
Resources. It has pressures from heavy recreational use, and ABM
habitat here has been severely impacted by recent hurricanes. Threats
to ABM habitat include loss of dune topography and vegetation from
habitat destruction, human-generated refuse that could attract
predators, feral cats, and artificial lighting. Habitat fragmentation
also threatens ABM within this unit.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to: Alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Courts of Appeal (see Gifford Pinchot Task Force v. U.S. Fish and
Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S.
Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir 2001);
also see discussion on Role of Critical Habitat above) have invalidated
this definition. Pursuant to current national policy and the statutory
provisions of the Act, destruction or adverse modification is
determined on the basis of whether, with implementation of the proposed
Federal action, the affected critical habitat would remain functional
(or retain the current ability for the PCEs to be functionally
established) to serve the intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. This is a procedural requirement only.
However, once proposed species becomes listed, or proposed critical
habitat is designated as final, the full prohibitions of section
7(a)(2) apply to any Federal action. The primary utility of the
conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in the destruction or adverse modification of critical
habitat, we also provide reasonable and prudent alternatives to the
project, if any are identifiable. ``Reasonable and prudent
alternatives'' are defined at 50 CFR 402.02 as alternative actions
identified during consultation that can be implemented in a manner
consistent with the intended purpose of the action, that are consistent
with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid destruction or adverse
modification of critical habitat. Reasonable and prudent alternatives
can vary from slight project modifications to extensive redesign or
relocation of the project. Costs associated with implementing a
reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where critical
habitat is subsequently designated that may be affected and the Federal
agency has retained discretionary involvement or control over the
action or such discretionary involvement or control is authorized by
law. Consequently, some Federal agencies may request reinitiation of
consulting us on actions for which formal consultation has been
completed, if those actions may affect
[[Page 5528]]
subsequently listed species or designated critical habitat or adversely
modify or destroy proposed critical habitat.
Federal activities that may affect the ABM or its designated
critical habitat will require section 7 consultation under the Act.
Activities on State, local, or private lands requiring a permit from a
Federal agency, such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit
from the Service, or some other Federal action, including funding
(e.g., Federal Highway Administration or Federal Emergency Management
Agency funding), will also continue to be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat and actions on non-Federal and private lands that are
not federally funded, authorized, or permitted do not require section 7
consultation.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to the Alabama Beach Mouse and Its Critical
Habitat
Jeopardy Standard
Prior to and following designation of critical habitat, the Service
has applied an analytical framework for ABM jeopardy analyses that
relies heavily on the importance of populations to the survival and
recovery of the subspecies. The section 7(a)(2) analysis is focused not
only on these populations but also on the habitat conditions necessary
to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the ABM in a qualitative fashion without making distinctions
between what is necessary for survival and what is necessary for
recovery. Generally, if a proposed Federal action is incompatible with
the viability of a population, inclusive of associated habitat
conditions, a jeopardy finding is considered to be warranted, because
of the relationship of each population to the survival and recovery of
the species as a whole.
Adverse Modification Standard
The analytical framework described in the Director's December 9,
2004, memorandum is used to complete section 7(a)(2) analyses for
Federal actions affecting ABM critical habitat. The key factor related
to the adverse modification determination is whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species. Generally, the
conservation role of critical habitat units is to support viable
populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, those activities involving a Federal action that may destroy
or adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the ABM. Federal
activities that, when carried out, may adversely affect critical
habitat for the ABM include, but are not limited to:
(1) Actions that would significantly alter dune structure or the
degree of soil compaction. Such activities could include, but are not
limited to, permanent conversion of ABM habitat for residential or
commercial purposes, excessive foot traffic, and the use of
construction, utility, or off-road vehicles in beach mouse habitat.
These activities, even if temporary, could alter burrow construction,
reduce the availability of potential burrow sites, and degrade or
destroy beach mouse habitat.
(2) Actions that would significantly alter the natural vegetation
of the coastal dune community. Such activities could include, but are
not limited to, allowing non-native species to establish in the area,
landscaping with grass or other non-indigenous plants, and landscaping
that yields excessive leaf litter, mulch, or other foreign materials.
These activities could alter beach mouse foraging activities and
degrade or destroy beach mouse habitat.
(3) Actions that would significantly alter the natural predator/
prey balance of the coastal dune community. Such activities could
include, but are not limited to, allowing unprotected refuse in the
area and allowing or encouraging feral cat communities or the temporary
release of domestic cats. These activities could alter beach mouse
foraging activities and the availability of foraging resources and
cause appreciable mortalities.
(4) Actions that would significantly alter natural lighting. Such
activities could include, but are not limited to, allowing artificial
lighting that does not comply with wildlife-friendly lighting
specifications. These activities could alter beach mouse foraging
activities, increase predation upon beach mice, and reduce the use of
otherwise suitable beach mouse habitat.
(5) Activities that eliminate or degrade movement within and among
designated critical habitat units. Actions such as bulkhead, canal,
ditch, and wall construction; the permanent conversion of beach mouse
habitat to residential or commercial development; changing of water
elevations or flooding; the removal of vegetation; and excessive
artificial lighting could effectively block east-west and/or north-
south corridors among various habitat types, and isolate habitat.
We consider the five critical habitat units to be currently
occupied by the subspecies, based on trapping data, our 2003 habitat
map, and Service trapping protocol (Service 2005c). All of the units
included in this proposed designation contain the features that are
essential to the conservation of the ABM or are found to be essential
for the conservation of the subspecies.
Application of Section 3(5)(A) and Exclusions Under Section 4(b)(2) of
the Act
Section 3(5)(A) of the Act defines critical habitat as the specific
areas within the geographic area occupied by the species at the time of
listing on which are found those physical and biological features (i)
essential to the conservation of the species and (ii) that may require
special management considerations or protection. Therefore, areas
within the geographical area occupied by the species at the time of
listing that do not contain the features essential for the conservation
of the species are not, by definition, critical habitat. Similarly,
areas within the geographic area occupied by the species at the time of
listing that do not require special management or protection also are
not, by definition, critical habitat.
There are multiple ways to provide management for species habitat.
Statutory and regulatory frameworks that exist at a local level can
provide such protection and management, as can lack of pressure for
change, such as areas too remote for anthropogenic disturbance.
Finally, State, local, or private management plans as well as
management under Federal agencies jurisdictions can provide protection
and management to avoid the need for designation of critical habitat.
When we consider a plan to determine its adequacy in protecting
habitat, we consider whether the plan, as a whole will provide the same
level of protection that designation of critical habitat would provide.
The plan need not lead to exactly the same result as a designation in
every individual application, as long as the protection it provides is
equivalent, overall. In
[[Page 5529]]
making this determination, we examine whether the plan provides
management, protection, or enhancement of the PCEs that is at least
equivalent to that provided by a critical habitat designation, and
whether there is a reasonable expectation that the management,
protection, or enhancement actions will continue into the foreseeable
future. Each review is particular to the species and the plan, and some
plans may be adequate for some species and inadequate for others.
We consider a current plan to provide adequate management or
protection if it meets three criteria: (1) The plan is complete and
provides a conservation benefit to the species (i.e., the plan must
maintain or provide for an increase in the species' population, or the
enhancement or restoration of its habitat within the area covered by
the plan); (2) the plan provides assurances that the conservation
management strategies and actions will be implemented (i.e., those
responsible for implementing the plan are capable of accomplishing the
objectives, and have an implementation schedule or adequate funding for
implementing the management plan); and (3) the plan provides assurances
that the conservation strategies and measures will be effective (i.e.,
it identifies biological goals, has provisions for reporting progress,
and is of a duration sufficient to implement the plan and achieve the
plan's goals and objectives).
Further, section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species.
Perdue and Fort Morgan Units of the Bon Secour National Wildlife Refuge
The Refuge finalized its Comprehensive Conservation Plan in
November 2005. This document details proposed conservation actions for
the Refuge over a 15-year period, and outlines three objectives
(implement monitoring protocol and manage beach and scrub habitat for
the ABM) and two projects (standardize surveys and manage and evaluate
scrub habitat for the ABM) that specifically address the subspecies.
Many other objectives (e.g., predator management plan) and projects
(e.g., develop biological database) would also benefit ABM. The Service
has a statutory mandate to manage the refuge for the conservation of
listed species, and the CCP provides a detailed implementation plan.
We believe that the CCP provides a substantial conservation benefit
to the subspecies, and there are reasonable assurances that it will be
implemented properly and in an effective fashion within portions of the
Perdue Unit of the Refuge that contains the physical and biological
features essential to the conservation of the ABM. Accordingly, we
believe that these units of the Refuge do not meet the definition of
critical habitat under section 3(5)(A) of the Act because a secure
management plan is already in place to provide for the conservation of
the ABM, and no special management or protection will be required.
The Service also either owns or manages 510 acres of coastal dune
habitat, most of which is occupied by ABM, within the boundaries of the
Fort Morgan State Historic Site. These lands, collectively, are
referred to as the Fort Morgan Unit of the Refuge, but are within the
Historic Site. Of the 510 acres, approximately 480 acres are owned by
the State, but are managed by the Service through a cooperative
management agreement with the Alabama Historical Commission. While the
CCP outlines proposed management activities within the Fort Morgan
Unit, we do not know whether the cooperative management agreement will
be modified or terminated in the future, and therefore, if the
conservation plan outlined within the CCP will be implemented. Areas
containing the PCEs within these State-owned lands and the
approximately 30 acres of Federal land imbedded within them, therefore,
may require special management or protection, and are being proposed
for inclusion into the critical habitat designation as part of Unit 1.
Habitat Conservation Plans (HCPs)
As described above, section 4(b)(2) of the Act requires us to
consider other relevant impacts, in addition to economic and national
security impacts, when designating critical habitat. Section
10(a)(1)(B) of the Act authorizes us to issue permits for the take of
listed wildlife species incidental to otherwise lawful activities. The
ESA specifies that an application for an incidental take permit (ITP)
must be accompanied by a habitat conservation plan and specifies the
content of such a plan. The purpose of conservation plans is to
describe and ensure that the effects of the permitted action on covered
species are adequately minimized and mitigated, and that the action
does not appreciably reduce the survival and recovery of the species.
HCPs vary in size and may provide for incidental take coverage and
conservation management for one or many federally listed species.
Additionally, more than one applicant may participate in the
development and implementation of an HCP. The areas occupied by, and
determined to have features essential to, ABM include 56 approved HCPs
that specifically address the subspecies. These include HCPs for 6
multifamily developments, one hotel and convention center complex, and
49 single family homes (see below).
The completed HCPs and the associated ITPs issued by the Service
contain management measures and protections for identified areas that
protect, restore, and enhance the value of these lands as habitat for
ABM. These measures include explicit standards to minimize any impacts
to the ABM and its habitat. In general, HCPs are designed to ensure
that the value of the conservation lands are maintained, expanded, and
improved for the species that they cover.
For HCPs that have been already approved, we have provided
assurances to permit holders that once the protection and management
required under the plans are in place and for as long as the permit
holders are fulfilling their obligations under the plans, no additional
mitigation in the form of land or financial compensation will be
required of the permit holders and, in some cases, specified third
parties.
A discussion of completed HCPs for areas that we identified as
having the PCEs follows.
Multifamily Developments
HCPs for six multifamily developments along the Fort Morgan
Peninsula were approved between 1994 and 1996. These developments
include, from west to east, The Dunes, Bay to Breakers, Kiva Dunes,
Plantation Palms, The Beach Club, and Martinique, all of which were
issued 30-year ITPs by the Service. The HCPs covering the properties
are almost identical and consist of setting aside primary and secondary
dune habitat in perpetuity, and the construction of dune walkovers
within protected areas to minimize pedestrian impact to habitat. These
HCPs also require the use of native plants in landscaping, control of
domestic and feral cats, interpretive signage, minimal outdoor
lighting, live-trapping surveys, and annual reports.
[[Page 5530]]
HCPs for The Beach Club and Martinique developments also include the
creation of endowment funds for use in future ABM conservation
activities (e.g., research or habitat restoration). All of these
properties have been developed as permitted or are nearing completion,
and the areas within the properties that we have identified as
containing the features that are essential to the conservation of the
ABM consist of the acreage set aside as ABM conservation zones (see
Table 1). Much of these conservation zones were designated as critical
habitat at the time ABM was listed.
On the basis of the conservation benefits afforded the ABM from the
referenced HCPs and the provisions of section 4(b)(2) of the Act, we
propose to exclude the areas on these properties that contain the
features that are essential to the conservation of the subspecies from
proposed critical habitat. We have further determined that the
exclusion of these areas from critical habitat would not result in the
extinction of the ABM. The rationale for this determination is below
(see Benefits of Exclusion).
Gulf State Park Hotel and Convention Center Complex
In 2004, we approved an HCP for the upcoming demolition and
reconstruction of a new hotel and convention center complex south of
S.R. 182 on Gulf State Park. This new complex will replace the current
facilities (which were destroyed during Hurricane Ivan) and its
construction will result in a net gain of 3 ac (1 ha) of ABM habitat
due to improved siting and design of the structures and restoration
work outlined in the HCP. The HCP for this complex, which covers both
the construction and operation of the facilities, outlines an
aggressive strategy for the control of roaming cats, house mice, and
refuse; and includes wildlife-friendly lighting, native landscaping,
and visitor outreach on the fragile coastal environment (including the
ABM). The area covered by the HCP and ITP includes the 44 ac (18 ha)
surrounding the complex.
On the basis of the conservation benefits afforded the ABM from
this HCP and the provisions of section 4(b)(2) of the Act, we propose
to exclude the 44 ac (18 ha) covered area, portions of which we have
identified contain the features that are essential to the conservation
of the subspecies, from proposed critical habitat. We have further
determined that the exclusion of this area from critical habitat would
not result in the extinction of the ABM. The rationale for this
determination is below (see Benefits of Exclusion).
Single Family Homes
Prior to August 2004, we approved HCPs for the construction of two
single family homes in the Cabana Beach subdivision. Portions of both
these properties have been determined to contain the features that are
essential to the conservation of the ABM. In August 2004, we approved
HCPs for the construction of 17 additional single family homes in
occupied ABM habitat. Ten of these properties have been determined to
contain features essential to the conservation of the ABM (see CRITERIA
section). In September 2005, we approved HCPs for the construction of
55 more residences within occupied ABM habitat. Thirty-seven of these
properties (11 of which are located within ``The Dunes'' development)
have been determined to be essential to the ABM. The HCPs and ITPs
covering all of these properties while under and after construction
require a small developed footprint (typically no larger than 0.1 ac
(0.004 ha)) for all structures and driveways, the construction of a
dune walkover for Gulf-front lots, and the conservation of the
remaining ABM habitat on the property for the duration of the ITP. The
HCPs also call for wildlife-friendly lighting, landscaping with native
plants, control of domestic pets (such as cats), and refuse control.
The associated ITPs are valid for 50 years and ITP permit conditions
are transferable if property ownership changes.
On the basis of the conservation benefits afforded the ABM from the
referenced HCPs and the provisions of section 4(b)(2) of the Act, we
propose to exclude ABM habitat within these 49 properties that contain
features essential to ABM conservation from proposed critical habitat.
We have further determined that the exclusion of these areas from
critical habitat would not result in the extinction of the ABM. The
rationale for this determination is below (see Benefits of Exclusion).
Following is our analysis of the benefits of including lands within
approved HCPs versus excluding such lands from this critical habitat
designation.
(1) Benefits of Inclusion
The benefits of including approved HCPs in critical habitat are
normally small. The principal benefit of any designated critical
habitat is that federally funded or authorized activities that may
affect it require consultation under section 7 of the Act. This
consultation process ensures adequate protection against adverse
modification of critical habitat. Where HCPs are in place, our
experience indicates that this benefit is small or non-existent.
Currently approved and permitted HCPs are typically crafted to ensure
the long-term survival and conservation of covered species within the
plan area. These approved HCPs, which were based upon the best
available science at the time, set aside areas that contain the habitat
features essential to the conservation of the subspecies, including
critical habitat designated at the time of listing. Other areas within
these developments no longer contain natural ABM habitat. All 56 HCPs
include management measures and protections for conservation lands
designed to protect, restore, and enhance their value as habitat for
covered species. While the presence or absence of ABM on each of the
sites has not been verified, the presence of ABM on many of the sites
has been confirmed by field surveys. On the remainder of the sites, ABM
have been documented on nearby or adjacent sites containing identical
habitat. As such, we have a high degree of certainty that ABM
cyclically utilize these sites. Surveys completed after the development
of several of the sites indicates that ABM continue to utilize the
undeveloped portions of the sites. Therefore, a clear Federal nexus
remains on these sites. This includes the sites after development where
we anticipate the continued usage by ABM.
Another possible benefit to including these lands in the proposed
designation is public outreach and education. The designation of
critical habitat can serve to educate landowners and the public
regarding the potential conservation value of an area. This may focus
and contribute to conservation efforts by other parties by clearly
delineating areas of high conservation value for certain species.
However, through the HCP development process, which typically involves
extensive outreach and opportunity for public review and typically
results in formal protection of essential habitat areas, the public is
well informed and educated about conservation value of essential
habitat lands. The importance of these HCP-covered areas to the ABM is
reinforced through the publication of this proposed critical habitat
revision, regardless of whether the areas are included or excluded.
(2) Benefits of Exclusion
The benefits of excluding HCPs include relieving landowners,
communities and counties of the need to consult a second time to
determine if
[[Page 5531]]
their proposed action would constitute adverse modification. A second
consultation would provide little benefit for the species since a
formal consultation has already been completed on the project site to
determine if the project would result in jeopardy. Additional
regulatory burden that might be imposed by critical habitat beyond that
found in the HCP may be perceived. This benefit to exclusion is
particularly compelling because we have made the determination that
once an HCP is negotiated and approved by us after public comment,
activities consistent with the plan will satisfy the requirements of
the Act. Imposing an additional regulatory review after HCP completion
may call into question conservation efforts and partnerships in many
areas, and could be viewed as a disincentive to those developing HCPs.
Excluding HCPs provides us an opportunity to streamline regulatory
compliance, and provides regulatory certainty for HCP participants.
Another benefit of excluding HCPs is that it would encourage the
continued development of partnerships with present and future HCP
participants, including States, local governments, conservation
organizations, and private landowners, that together can implement
conservation actions we would otherwise be unable to accomplish. By
excluding areas covered by HCPs from critical habitat designation, we
clearly maintain our commitments, preserve these partnerships, and, we
believe, set the stage for more effective conservation actions in the
future.
In addition, an HCP application must undergo consultation pursuant
to section 7 of the Act. Several of these developments have already
undergone a formal evaluation of the plan's potential to adversely
modify critical habitat that was designated in 1985, and in all cases
the designated critical habitat is part of the ABM conservation areas
set aside under the HCP. In those areas where critical habitat had not
been designated, we carefully analyzed the effects of the plan on
essential habitat areas as part of our jeopardy analysis under section
7 of the Act, and as part of its evaluation of the adequacy of the plan
under section 10 of the Act. Because virtually all HCPs are developed
to minimize and mitigate the impacts of take (as defined in the Act) of
covered species resulting from habitat loss within the plan area, a
fundamental goal of these plans is to identify and protect habitat
essential to the covered species while directing development to non-
habitat or lower quality habitat areas. Thus, the plan's effectiveness
in protecting essential habitat within the plan boundaries and
management challenges within the plan boundaries will have been
thoroughly addressed in the HCP. Future Federal actions that may affect
listed species would continue to require consultation under the
``jeopardy standard'' of section 7 of the Act.
Further, HCPs typically provide for greater conservation benefits
to a covered species than consultations pursuant to section 7 of the
Act because HCPs assure the long-term protection and management of a
covered species and its habitat, and funding for such management
through the standards found in the 5 Point Policy for HCPs (64 FR
35242) and the HCP No Surprises regulation (63 FR 8859). Such
assurances are typically not provided by consultations under section 7
of the Act that, in contrast to HCPs, often do not commit the project
proponent to long-term special management or protections. Thus, a
consultation typically does not afford the lands it covers the
extensive benefits an HCP provides. The development and implementation
of an HCP provide other important conservation benefits, including the
development of biological information to guide conservation efforts and
assist in species conservation, and the creation of innovative
solutions to conserve species while allowing for development.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
In general, we believe that the benefits of critical habitat
designation for the ABM on lands within the 56 approved HCPs that cover
this subspecies are small while the benefits of excluding these lands
from designation of critical habitat are substantial. After weighing
the minor benefits of including these lands against the much greater
benefits derived from exclusion, including encouraging the pursuit of
additional conservation partnerships, we are excluding lands determined
to contain features essential to ABM conservation within the 56
developments covered by approved and legally operative HCPs from the
proposed revised critical habitat.
We believe that these HCPs and their associated ITPs adequately
protect essential ABM habitat features within their boundaries and
provide appropriate management to maintain and enhance the long-term
value of this habitat. The education benefits of critical habitat
designation have been achieved through the public outreach, and notice
and comment procedures required prior to approval of these plans, and
through their identification in this critical habitat revision. For
these reasons we find that designation of critical habitat has little
benefit in areas covered by these HCPs and that such benefits are
outweighed by the benefits of maintaining proactive partnerships with
plan participants and encouraging additional conservation partnerships
that will result from exclusion of critical habitat in these plan
areas. We also find that the exclusion of these lands from proposed
critical habitat will not result in the extinction of the ABM, or
hinder its recovery because their HCPs have already been evaluated
under section 7 of the Act to ensure that their implementation will not
jeopardize the continued existence of the subspecies.
Economic Analysis
An analysis of the economic impacts of proposing critical habitat
for the Alabama beach mouse is being prepared. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. At that time,
copies of the draft economic analysis will be available for downloading
from the Internet at http://www.fws.gov/daphne, or by contacting the
Daphne Ecological Services Field Office directly (see ADDRESSES
section). For further explanation, see the ``Regulatory Flexibility
Act'' and ``Regulatory Planning and Review'' discussions below.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send these peer reviewers
copies of this proposed rule immediately following publication in the
Federal Register. We will invite these peer reviewers to comment,
during the public comment period, on the specific assumptions and
conclusions regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests for public hearings
[[Page 5532]]
must be made in writing at least 15 days prior to the close of the
public comment period. We intend to schedule public hearings once the
draft economic analysis is available such that we can take public
comment on the proposed designation and economic analysis
simultaneously. However, we can schedule public hearings on this
proposal prior to that time, if any are requested, and announce the
dates, times, and places of those hearings in the Federal Register and
local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
technical jargon that interferes with the clarity? (3) Does the format
of the proposed rule (grouping and order of the sections, use of
headings, paragraphing, and so forth) aid or reduce its clarity? (4) Is
the description of the notice in the SUPPLEMENTARY INFORMATION section
of the preamble helpful in understanding the proposed rule? (5) What
else could we do to make this proposed rule easier to understand?
Send a copy of any comments on how we could make this proposed rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may e-mail your comments to this address: Exsec@ios.doi.gov.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues,
but it is not anticipated to have an annual effect on the economy of
$100 million or more or affect the economy in a material way. Due to
the tight timeline for publication in the Federal Register, the Office
of Management and Budget (OMB) has not formally reviewed this rule. We
are preparing a draft economic analysis of this proposed action, which
will be available for public comment, to determine the economic
consequences of designating the specific area as critical habitat. This
economic analysis also will be used to determine compliance with
Executive Order 12866, Regulatory Flexibility Act, Small Business
Regulatory Enforcement Fairness Act, and Executive Order 12630.
Within these areas, the types of Federal actions or authorized
activities that we have identified as potential concerns are listed
above in the section on Section 7 Consultation. The availability of the
draft economic analysis will be announced in the Federal Register and
in local newspapers so that it is available for public review and
comments. The draft economic analysis will be available from the
Internet Web site at http://www.fws.gov/daphne/ or by contacting the
Daphne Fish and Wildlife Field Office directly (see ADDRESSES section).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Our assessment of economic effect will be completed prior to final
rulemaking based upon review of the draft economic analysis prepared
pursuant to section 4(b)(2) of the ESA and E.O. 12866. This analysis is
for the purposes of compliance with the Regulatory Flexibility Act and
does not reflect our position on the type of economic analysis required
by New Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife Service 248
F.3d 1277 (10th Cir. 2001).
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act (RFA) to require Federal agencies to
provide a statement of the factual basis for certifying that the rule
will not have a significant economic impact on a substantial number of
small entities.
At this time, the Service lacks the available economic information
necessary to provide an adequate factual basis for the required RFA
finding. Therefore, the RFA finding is deferred until completion of the
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA
and E.O. 12866. This draft economic analysis will provide the required
factual basis for the RFA finding. Upon completion of the draft
economic analysis, the Service will publish a notice of availability of
the draft economic analysis of the proposed designation and reopen the
public comment period for the proposed designation. The Service will
include with the notice of availability, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. The
Service has concluded that deferring the RFA finding until completion
of the draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this manner will
ensure that the Service makes a sufficiently informed determination
based on adequate economic information and provides the necessary
opportunity for public comment.
Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) on regulations that significantly affect energy supply,
distribution, and use. Executive Order 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
This proposed rule to designate critical habitat for the ABM is not a
significant regulatory action under Executive Order 12866, and it is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates
[[Page 5533]]
to a then-existing Federal program under which $500,000,000 or more is
provided annually to State, local, and tribal governments under
entitlement authority,'' if the provision would ``increase the
stringency of conditions of assistance'' or ``place caps upon, or
otherwise decrease, the Federal Government's responsibility to provide
funding,'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitl