[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Proposed Rules]
[Pages 38953-38958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19057]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for Newcomb's Snail From the Hawaiian Islands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
threatened status pursuant to the Endangered Species Act of 1973, as 
amended, for Newcomb's snail (Erinna newcombi). This freshwater snail 
is restricted to the Hawaiian Island of Kaua'i. The distribution of 
this snail has greatly decreased from the known historic distribution 
and extant populations are presently limited to restricted habitats 
within five perennial streams on State land. The five known populations 
of this snail and its habitat are currently threatened by predation by 
a species of non-native predatory snail and two species of non-native 
marsh flies. These populations are also subject to an increased 
likelihood of extirpation from naturally occurring events, including 
natural disasters such as hurricanes and landslides. Comments and 
materials related to this proposal are solicited.

DATES: To ensure consideration in the final rule for this species, 
comments from all interested parties should be received by September 
19, 1997. Public hearing requests must be received by September 4, 
1997.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to Robert P. Smith, Manager, Pacific Islands Ecoregion, U.S. Fish 
and Wildlife Service, 300 Ala Moana Boulevard, Room 3108, Box 50088, 
Honolulu, Hawaii 96850. Comments and material received will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Robert P. Smith, Pacific Islands 
Ecoregion Manager, at the above address (808/541-2749; facsimile 808/
541-2756).

SUPPLEMENTARY INFORMATION:

Background

    The Hawaiian archipelago is comprised of eight main islands 
(Ni'ihau, Kaua'i, O'ahu, Moloka'i, Lana'i, Kaho'olawe, Maui, and 
Hawaii) and their offshore islets, plus the shoals and atolls of the 
Northwest Hawaiian Islands. The main islands and the northwestern chain 
were formed sequentially by basaltic lava that emerges from a crustal 
hot spot currently located near the southeast coast of the island of 
Hawaii (Stearns 1985). Hawaii is the youngest island in the chain and 
is characterized by gently sloping shield volcanoes and currently 
active lava flows. Volcanoes on the other islands are either dormant or 
extinct. Ongoing erosion has formed steep-walled valleys with well 
developed soils and stream systems throughout the chain. Kaua'i, the 
oldest and most northwesterly of the main islands, is characterized by 
high rainfall, deep valleys, numerous perennial streams, and luxuriant 
vegetation.
    Four species of Lymnaeidae snails are native to Hawaii (Morrison 
1968, Hubendick 1952). Three of these species are found on two or more 
of the eight main islands. The fourth species, Newcomb's snail, is 
restricted to the island of Kaua'i. Newcomb's snail is unique among the 
Hawaiian lymnaeids in that the shell spire typically associated with 
lymnaeids has been completely lost. The result is a smooth, black shell 
formed by a single, oval whorl, 6 millimeters (mm) (0.25 inches (in.)) 
long and 3 mm (0.12 in.) wide. A similar shell shape is found in a 
Japanese lymnaeid (Burch 1968), but Burch's study of chromosome number 
shows that Newcomb's snail has evolutionary ties to the rest of the 
Hawaiian lymnaeids, all of which are derived from North American 
ancestors (Patterson and Burch 1978). This parallel evolution of 
similar shell morphology in Japan and Hawaii from two distinct lineages 
of lymnaeid snails is of particular scientific interest.
    At the present time, there is no generally accepted nomenclature 
for the genera of Hawaiian lymnaeids, although each of these snail 
species, including Newcomb's snail, is recognized as a well defined 
species. Newcomb's snail was originally described as Erinna newcombi in 
1855 by H. & A. Adams (see Hubendick 1952). Hubendick (1952) did not 
feel that the distinctive shell form (described above) and reduced 
structures of the nervous system of Newcomb's snail warranted a 
monotypic genus. In fact, Hubendick included all Hawaiian lymnaeids in 
the genus Lymnaea. Morrison (1968) opposed Hubendick, and argued that 
the distinctive shell characters of Newcomb's snail supported the 
generic name Erinna. Burch (1968), Patterson and Burch (1978), Taylor 
(1988), and Cowie (1995) all followed Morrison and referred to 
Newcomb's snail as Erinna newcombi. This is the currently accepted 
scientific name for Newcomb's snail.
    Newcomb's snail is an obligate freshwater species. While the 
details of its ecology are not well known, Newcomb's snail probably has 
a life history similar to other members of the family. These snails 
generally feed on algae and vegetation growing on submerged rocks. Eggs 
are attached to submerged rocks or vegetation and there are no 
dispersing larval stages; the entire life cycle is tied to the stream 
system in which the adults live (Baker 1911). Dispersal of Newcomb's 
snail between stream systems is probably very infrequent due to their 
obligate freshwater habitat requirements. Historic dispersal probably 
relied on long-term erosional events that captured adjacent stream 
systems. It should be noted that this life history differs greatly from 
the freshwater Hawaiian neritid snails (Nertinana sp.), which have 
marine larvae that colonize streams following a period of oceanic 
dispersal (Kinzie 1990). It is likely that larvae of these neritid 
snails can disperse across the oceanic expanses that separate the 
Hawaiian Islands and colonize streams

[[Page 38954]]

on any or all of these islands. This dispersal capacity is not 
available to Newcomb's snail.
    The specific habitat requirements of Newcomb's snail include fast 
flowing perennial streams with stable overhanging rocks, springs, rock 
seeps (rheocrenes), and waterfalls (Michael Kido, University of Hawaii 
in litt. 1994; Stephen Miller, U.S. Fish and Wildlife Service in litt. 
1994; Polhemus 1992; Burch 1968; Hubendick 1952). Surveys of main 
stream channels of many of the perennial streams of Kaua'i indicate 
that Newcomb's snail is rarely found in this habitat (Adam Asquith, 
U.S. Fish and Wildlife Service in litt. 1994a; Don Heacock, State of 
Hawaii, Department of Land and Natural Resources, Division of Aquatic 
Resources in litt. 1995; M. Kido in litt. 1994, 1995; S. Miller in 
litt. 1994a, b; Timbol 1983). The limited occurrence of this snail in 
main stream channels may be due to scouring by sediment, rocks, and 
boulders that are moved downstream during heavy rains. Consequently, 
available suitable habitat is generally associated with small feeder 
streams, seeps, and waterfalls.
    The present known range of Newcomb's snail is limited to five 
stream systems. Each stream supports a single population of Newcomb's 
snail (A. Asquith in litt. 1994a; M. Kido in litt. 1994; S. Miller in 
litt. 1994a, b; Hubendick 1952). These populations are located in the 
Hanalei River, Kalalau Stream, the Lumahai River, Makaleha Stream, and 
Waipahe'e Stream. Makaleha and Waipahe'e Streams both flow into Kapa'a 
Stream. The populations fall into two groups--populations first 
observed prior to 1925 and populations observed since 1993. Five 
populations were identified prior to 1925. Three of these populations 
(Wainiha, Hanakapi`ai, and Hanakoa) no longer exist. Of the two 
remaining pre-1925 populations, one (Waipahe'e) is small and the other 
(Kalalau) is relatively large (see below). These data indicate that the 
number of populations of Newcomb's snail has been greatly reduced since 
1925, perhaps by as much as 60 percent.
    Since 1990, surveys of at least 46 streams, tributaries and springs 
on Kaua'i have located three previously unknown populations of 
Newcomb's snail (A. Asquith in litt. 1994a, b; D. Heacock in litt. 
1995; M. Kido in litt. 1994, 1995; S. Miller in litt. 1994a, b; Timbol 
1983). Two of these populations are small (see below), and the third 
population has been described as large.
    No historic information is available on the population sizes of 
Newcomb's snail. However, recent reports indicate that two of the five 
known populations of Newcomb's snail are relatively large: The Kalalau 
and Lumahai populations. The Kalalau population is found in the 
northeastern tributary on two permanent waterfalls and in the section 
of intervening stream between the waterfalls. The high density of 
individuals in this population may be indicative of an undisturbed 
natural condition. The estimated maximum density at the base of the 
upper permanent waterfall, including the area behind the falling water, 
is approximately 800 snails/square meter (m2) (75 snails/
square foot (ft2)) (S. Miller in litt. 1994b). The total 
area occupied by these snails could not be accurately evaluated due to 
the extreme vertical orientation of the waterfall. Habitat used by 
these snails is probably limited to the lower section of the waterfall. 
Little information on specific size or area is currently available for 
the population of Newcomb's snail from the Lumahai River, although this 
population has been reported to be large (M. Kido in litt. 1995).
    The population in Makaleha Stream is divided into two 
subpopulations. The subpopulation at the waterfall that forms the head 
of the main channel of Makaleha Stream is estimated at 30 snails/
m2 (2 to 3 snails/ft2) distributed over 2 to 3 
m2 (21 to 32 ft2) (M. Kido in litt. 1994). This 
is considerably smaller than the previously described waterfall 
population in Kalalau Stream. The reasons for differences in these two 
populations are not known with certainty, but may be due to the 
presence or absence of non-native predators and biocontrol agents that 
feed on lymnaeid snails. The subpopulation that occupies Makaleha 
Springs and its small feeder stream covers approximately 20 to 30 
m2 (212 to 318 ft2) (S. Miller in litt. 1994a). 
Snail densities at this site are difficult to estimate but may be as 
high as 20 to 30 snails/m2 (1 to 3 snails/ft2) 
(S. Miller in litt. 1994a).
    The sizes of two other populations of Newcomb's snail have been 
characterized as small. The population in the Waipahe'e branch of 
Kealia Stream is estimated to cover 5 to 10 m2 (53 to 106 
ft2) with a density of approximately 50 to 80 snails/
m2 (4 to 8 snails/ft2) (A. Asquith in litt. 
1994a). The population of Newcomb's snail in the Hanalei River is 
divided into four subpopulations in the upper reach of this river (M. 
Kido in litt. 1994, 1995). One subpopulation has approximately 10 to 20 
snails/m2 (1 to 2 snails/ft2) and occupies 2 to 3 
m2 (21 to 32 ft2) (M. Kido in litt. 1994). A 
second subpopulation supports approximately 25 snails. The two 
remaining subpopulations are reported to be small with very few snails 
(M. Kido in litt. 1995).
    Based on these data, the Service estimates that the five known 
populations of Newcomb's snail have a total of approximately 6,000 to 
7,000 individuals. The great majority of these snails, perhaps over 90 
percent, are located in the two populations at Kalalau and Lumahai.

Previous Federal Action

    The February 28, 1996, Notice of Review of Plant and Animal Taxa 
That Are Candidates for Listing as Endangered or Threatened Species (61 
FR 7596) included Newcomb's snail as a candidate species. Candidates 
are those species for which the Service has on file sufficient 
information on biological vulnerability and threat(s) to support 
issuance of a proposed rule to list, but issuance of the proposed rule 
is precluded.
    The processing of this proposed listing rule conforms with the 
Service's final listing priority guidance for fiscal year 1997, 
published in the Federal Register on December 5, 1996 (61 FR 64475-
64481). The guidance clarifies the order in which the Service will 
process rulemakings following two related events: (1) The lifting, on 
April 26, 1996, of the moratorium on final listings imposed on April 
10, 1995 (Pub. L. 104-6), and (2) the restoration of significant 
funding for listing through passage of the omnibus budget 
reconciliation law on April 26, 1996, following severe funding 
constraints imposed by a number of continuing resolutions between 
November 1995 and April 1996. The guidance calls for giving highest 
priority to handling emergency situations (Tier 1) and second highest 
priority (Tier 2) to resolving the listing status of the outstanding 
proposed listings. Tier 3 includes the processing of new proposed 
listings for species facing high magnitude threats. This proposed rule 
for Newcomb's snail falls under Tier 3. The Pacific Islands Ecoregion 
currently has no outstanding Tier 1 or 2 species, therefore processing 
of Tier 3 activities is encouraged under the listing priority guidance 
(61 FR 64480). This rule has been updated by the Pacific Islands 
Ecosystem Office to reflect any changes in distribution, status and 
threats since the effective date of the listing moratorium.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and regulations (50 CFR 
part 424) promulgated to implement the listing

[[Page 38955]]

provisions of the Act set forth the procedures for adding species to 
the Federal lists. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1). These factors and their application to Newcomb's snail 
(Erinna newcombi H. and A. Adams 1855) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Although modification of habitat is not an immediate threat, water 
development projects have been proposed within Newcomb's snail habitat 
in the past. For example, in 1994, a proposed water development project 
at Makaleha Springs (State of Hawai`i 1994a) threatened to destroy the 
population of Newcomb's snail at this site. This project was ultimately 
rejected by the State of Hawai`i, Commission of Water Resource 
Management (Michael Wilson in litt. 1995). However, the State of 
Hawai`i Department of Water and Land Development can submit a new 
application for future development of the water resources at Makaleha 
Springs.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization is not known to be a factor affecting Newcomb's 
snail, and future overutilization of this species is not anticipated.

C. Disease and Predation

    Predation by the non-native rosy glandina snail (Euglandina rosea) 
is a serious threat to the survival of Newcomb's snail. This predatory 
snail was introduced into Hawaii in 1955 (Funasaki et al. 1988), and 
has established populations throughout the main islands. The rosy 
glandina feeds on snails and slugs, and field studies have established 
that it will readily feed on native snails found in Hawaii (Hadfield et 
al. 1994). Furthermore, Kinzie (1992) demonstrated that the rosy 
glandina snail can fully submerge itself under water and feed on 
aquatic snails such as Newcomb's snail. The rosy glandina has been 
observed on the wet, algae-covered rocks of the Makaleha Springs stream 
very near individuals of Newcomb's snail (S. Miller in litt. 1994a), 
and is believed to prey on them. The rosy glandina snail has caused the 
extinction of many populations and species of native snails throughout 
the Pacific islands (Hadfield et al. 1994, Miller 1993, Hopper and 
Smith 1992, Murray et al. 1988, Tillier and Clarke 1983), and 
represents a significant threat to the survival of Newcomb's snail.
    Predation on the eggs and adults of native Hawaiian lymnaeid snails 
by two non-native species of Sciomyzidae flies also represents a 
significant threat to the survival of Newcomb's snail. Two species of 
marsh flies (Sepedomerus macropus and Sepedon aenescens) that feed on 
lymnaeid snails (Davis 1960) were introduced into Hawaii in 1958 and 
1966, respectively, as biological control agents for a non-native 
lymnaeid snail, Galba viridis (Funasaki et al. 1988). Galba viridis was 
targeted for biocontrol because it is an intermediate host of the 
cattle liver fluke (Fasciola gigantica) (Alicata 1938, Alicata and 
Swanson 1937). These authors misidentified Galba viridis as Fossaria 
ollula, as discussed in Morrison (1968). The non-native lymnaeid and 
the two biocontrol flies occur on Kauai as well as on other islands in 
Hawaii (Funasaki et al. 1988, Davis and Chung 1969, Davis 1960, 
Hubendick 1952). One of the marsh fly species has been observed at a 
site (Hanakoa stream) where Newcomb's snail was historically recorded 
but is no longer present (S. Miller in litt. 1994b). Another marsh fly 
was observed near the waterfall of a Kauai stream (Manoa) that had many 
dead lymnaeids in the waterfall plunge pool (S. Miller in litt. 1994b). 
These biocontrol agents represent a significant threat to Newcomb's 
snail and other native lymnaeid snails.

D. The Inadequacy of Existing Regulatory Mechanisms

    All of the five known extant populations of Newcomb's snail are 
located on watershed lands of the State of Hawaii. Currently, there are 
no State or Federal laws that afford protection for Newcomb's snail. 
Recent recommendations by the Stream Protection and Management Task 
Force (State of Hawaii 1994b) may lead to some protection for some of 
the populations of Newcomb's snail. All of the stream systems that 
currently support populations of Newcomb's snail or have supported 
populations in the past have been identified as streams with 
outstanding aquatic resources (National Park Service 1990). All but one 
of these stream systems have been recommended as candidate streams for 
protection (National Park Service 1990). Kapaa Stream was not included 
in these recommendations, yet this stream system supports the Makaleha 
and Waipahee populations of Newcomb's snail.
    Newcomb's snail is not currently listed as an endangered or 
threatened species in Hawaii. If Newcomb's snail is listed under the 
Federal Endangered Species Act, the State of Hawaii Endangered Species 
Act (HRS, Sect. 195D-4(a)) will automatically be invoked. The State 
statue reads as follows:
    ``Any species of aquatic life, wildlife, or land plant that has 
been determined to be an endangered species pursuant to the [Federal] 
Endangered Species Act shall be deemed to be an endangered species 
under the provisions of this chapter and any indigenous species of 
aquatic life, wildlife, or land plant that has been determined to be a 
threatened species pursuant to the [Federal] Endangered Species Act 
shall be deemed to be a threatened species under the provisions of this 
chapter.''
    Under section 404 of the Clean Water Act, the U.S. Army Corps of 
Engineers (Corps) regulates the discharge of fill material into waters 
of the United States (33 CFR parts 320-330). Waters of the United 
States include navigable waters and other waters, their headwaters 
(streams with an average annual flow of less than 5 cubic feet per 
second), and wetlands (either isolated or adjacent to other waters). 
Section 404 regulations require that applicants obtain a permit for 
projects that involve the discharge of fill material into waters of the 
United States. Projects may qualify for authorization to place fill 
material into headwaters and isolated waters, including wetlands, under 
Nationwide Permit 26 (NWP 26) if ``[t]he discharge does not cause the 
loss of more than 3 acres of waters of the United States nor cause the 
loss of waters of the United States for a distance greater than 500 
linear feet of stream bed'' (61 FR 65916). These projects can normally 
be permitted with minimal environmental review by the Corps. Projects 
that qualify for authorization under NWP 26 and ``caus[e] a loss of \1/
3\ acre or less of waters of the United States the permittee must 
submit a report within 30 days of completion of the work * * *'' Formal 
predischarge evaluation of the impacts of such projects is thus 
precluded under the section 404 permit process. An individual permit 
may be required by the Corps if a project otherwise qualifying under 
NWP 26 would have greater than minimal adverse environmental impacts. 
No activity which is likely to jeopardize the continued existence of a 
threatened or endangered species, or which is likely to destroy or 
adversely modify the critical habitat of such species, is authorized 
under any NWP (61 FR 65920). Candidate species receive no special 
consideration under section 404, regardless of the type of permit 
deemed

[[Page 38956]]

necessary. Thus, this taxon currently receives no protection under 
section 404 of the Clean Water Act.

E. Other Natural or Manmade factors Affecting Its Continued Existence

    Naturally occurring events may affect the continued existence of 
Newcomb's snail. As indicated above, the five known populations of 
Newcomb's snail cover very small areas in settings that may be 
subjected to extreme effects associated with exceptionally heavy 
rainfall or hurricanes. Hurricanes struck the island of Kauai in 1983 
and 1992. Rainfall associated with these hurricanes can wash out 
streams (Polhemus 1993) and create landslides that can alter stream 
flow (Jones et al. 1984). Events such as these could destroy the 
habitat of Newcomb's snail or physically displace individuals into 
areas where they cannot survive.
    Reduced stream flow due to water development projects, droughts, or 
other natural or human causes may have several potential negative 
effects on the ability of Newcomb's snail to complete its life cycle. 
Loss of water could reduce or eliminate the habitat of Newcomb's snail 
and possibly lead to increased resource competition or desiccation and 
death. Reduced water flow could also lead to increased predation by 
non-native predators. Low flows may allow marsh flies or the rosy 
glandina snail easier access to individual snails that are otherwise 
protected by the force of water movement. Droughts are not uncommon in 
the Hawaiian Islands. Between 1860 and 1986 the island of Kauai was 
affected by 33 droughts, 20 of which significantly affected the 
available water supply on the island (Giambelluca et al. 1991). The 
development of water resources also is a continuing issue. These 
projects divert water from streams, springs and aquifers that may 
otherwise maintain habitats for Newcomb's snail.
    Intentional or accidental introductions of snail predators 
constitute a significant threat to Newcomb's snail. The State of Hawaii 
continues to carry out an active program of introductions of biological 
control agents. These introduced organisms are meant to control 
agricultural pests, and the impacts on native species have only 
recently been considered in evaluating a release program. The marsh 
flies and the rosy glandina snail are examples of biological control 
agents that were introduced to Hawaii without adequate assessment of 
their impact on Newcomb's snail or other native Hawaiian species.
    Finally, the combined effects of numerous factors can degrade 
stream ecosystems, leading to a gradual decline in snail population 
size and an increase in the likelihood of negative stochastic or 
biological effects.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list 
Newcomb's snail (Erinna newcombi) as threatened. Critical habitat is 
not being designated at this time for reasons addressed in the 
``Critical Habitat'' section of this proposed rule.

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 that use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for Newcomb's 
snail at this time. Service regulations (50 CFR 424.12(a)(1)) state 
that designation of critical habitat is not prudent when one or both of 
the following situations exist: (1) The species is threatened by taking 
or other human activity, and identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Given the very restricted range of this species, the Service is 
concerned that the disclosure of the location of the species may lead 
to purposeful vandalism of known populations. The Service has received 
letters from a landowner on the island of Kaua`i that threaten such 
vandalism for other listed species. The publication of precise maps and 
descriptions of critical habitat in the Federal Register, as required 
for the designation of critical habitat, would increase the degree of 
threat to this snail due to vandalism.
    In addition, the species proposed herein is known to occur, at 
least in part, on non-federally owned lands. Critical habitat 
designation provides protection only on Federal lands or on private or 
State owned lands when there is Federal involvement through 
authorization or funding of, or participation in, a project or 
activity. All Federal and state agencies and local planning agencies 
involved, have been notified of the location and importance of 
protecting Erinna newcombi habitat. Protection of this species' habitat 
will be addressed through the recovery process and through the section 
7 consultation process. Section 7(a)(2) of the Act requires Federal 
agencies, in consultation with the Service, to ensure that any action 
authorized, funded, or carried out by such agency, does not jeopardize 
the continued existence of a federally listed species, or does not 
destroy or adversely modify designated critical habitat. Newcomb's 
snail is confined to small geographic areas and each population is 
composed of so few individuals that the determinations for jeopardy and 
adverse modification would be essentially the same. Therefore, 
designation of critical habitat provides no additional benefit beyond 
those that the species would receive by virtue of its listing as a 
threatened species and likely would increase the degree of threat from 
vandalism, collecting, or other human activities. The Service finds 
that designation of critical habitat for Newcomb's snail is not prudent 
at this time.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain practices. Recognition through listing results in 
public awareness and conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the States and requires 
that recovery actions be carried out for all listed species. The 
protection required of Federal agencies and the prohibitions against 
taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies 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 being

[[Page 38957]]

designated. Regulations implementing this interagency cooperation 
provision of the Act are codified in 50 CFR part 402. Section 7(a)(4) 
requires Federal agencies to confer with the Service on any action that 
is likely to jeopardize the continued existence of a species proposed 
for listing or result in destruction or adverse modification of 
proposed critical habitat. If a species is listed subsequently, 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 the species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, the responsible federally agency must enter into 
formal consultation with the Service.
    Federal agency actions that may require conference and/or 
consultation as described in the preceding paragraph include Army Corps 
of Engineers authorization of projects such as the construction of 
drainage diversions, roads, bridges, and dredging projects subject to 
section 404 of the Clean Water Act (33 U.S.C. 1344 et seq.) and section 
10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.), U.S. 
Environmental Protection Agency authorized discharges under the 
National Pollutant Discharge Elimination System (NPDES), and U.S. 
Housing and Urban Development or Natural Resource Conservation Service 
funded projects.
    The Act and its implementing regulations set forth a series of 
general trade prohibitions and exceptions that apply to all threatened 
wildlife. The prohibitions, codified in 50 CFR 17.21 and 17.31, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect; or to attempt any of these), 
import or export, ship in interstate commerce in the course of 
commercial activity, or sell or offer for sale in interstate or foreign 
commerce any listed species. It is also illegal to possess, sell, 
deliver, carry, transport, or ship any such wildlife that has been 
taken illegally. Certain exceptions apply to agents of the Service and 
State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified in 50 CFR 17.32. Such permits are 
available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in the course of 
otherwise lawful activities. For threatened species, permits are also 
available for zoological exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. The 
Service believes that, based on the best available information, the 
following activities will not result in a violation of section 9 of the 
Act:
    (1) Scientific or recreational activities within the main channel 
of streams that support populations of Newcomb's snail, but exclusive 
of the specific sites known to support populations of this snail.
    Activities that the Service believes could potentially result in 
``take'' of Newcomb's snail include, but are not limited to the 
following:
    (1) Release, diversion, or withdrawal of water that results in 
displacement, disruption of breeding or feeding, or death of individual 
snails.
    (2) Actions that lead to the destruction or alteration of the 
occupied habitat of Newcomb's snail (e.g., in stream dredging, rock 
removal, channelization, discharge of fill material, actions that 
result in siltation of the habitat, diversion of ground water flow 
required to maintain the habitat).
    (3) Introduction of non-native species that are predators or 
competitors of aquatic snails and especially those snails in the family 
Lymnaeidae and the closely related family Physidae.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Federal Endangered Species Act should be 
directed to the Manager of the Pacific Islands Ecoregion (see ADDRESSES 
section). Requests for copies of the regulations regarding listed 
wildlife and inquiries about prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Endangered Species Permits, 911 
N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-6241; facsimile 
503/231-6243).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial, or other relevant data concerning any 
threat (or lack thereof) to this species;
    (2) The location of any addition populations of this species and 
the reasons why habitat should or should not be determined to be 
critical habitat pursuant to section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of this species;
    (4) Current or planned activities in the subject area and their 
possible impacts on this species.
    Final promulgation of the regulation(s) on this species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Endangered Species Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days of the date of publication of the proposal in the Federal 
Register. Such requests must be made in writing and addressed to the 
Pacific Islands Ecoregion Manager (See ADDRESSES section).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (48 FR 49244).
    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from Pacific Islands Ecoregion (see ADDRESSES 
section).
    Author: The primary author of this document is Dr. Stephen E. 
Miller, U.S. Fish and Wildlife Service, Pacific Islands Ecoregion, 
Ecological Services, 300 Ala Moana Boulevard, Room 3108, P.O. Box 
50088, Honolulu, Hawaii 96850 (808/541-3441; facsimile 808/541-3470). 
Recent data on the

[[Page 38958]]

distribution of Newcomb's snail were contributed by Dr. Adam Asquith, 
U.S. Fish and Wildlife Service, Pacific Islands Ecoregion; Mr. Michael 
Kido, Environmental Research Laboratory, University of Hawaii, Kaua'i; 
and Mr. Don Heacock, Kaua'i District Aquatic Biologist, State of 
Hawaii, Department of Land and Natural Resources, Division of Aquatic 
Resources.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under SNAILS, to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Species                                                       Vertebrate                                                    
---------------------------------------------------------------                           population                                                    
                                                                                            where                                 Critical     Special  
                                                                     Historic range       endangered     Status    When listed    habitat       rules   
             Common name                   Scientific name                                    or                                                        
                                                                                          threatened                                                    
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
SNAILS:                                                                                                                                                 
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Snail, Newcomb's.....................  Erinna newcombi........  U.S.A. (HI)............           NA            T           NA           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: June 9, 1997.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-19057 Filed 7-18-97; 8:45 am]
BILLING CODE 4310-55-U